Go On! Servicemember accountability, at Stanford

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

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

Write On! International fact-finding, in Florence

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

This news via e-mail from Peking University Law Professor YI Ping (right), Senior Adviser at FICHL, the Forum for International Criminal and Humanitarian Law:
Organizers are seeking papers to be presented at the annual LI Haopei Seminar, to be held May 20, 2013, in Florence, Italy. The topic this year is "Quality Control in International Fact-Finding Outside Criminal Justice for Core International Crimes."
At this 2013 seminar, Richard J. Goldstone, former Chief Prosecutor of the International Criminal Tribunals for Rwanda and for the former Yugoslavia, will deliver the the 2013 LI Haopei Lecture. The lecture series is named after a Chinese international law expert who died in 1993 while serving as a Judge at the ICTY. Also scheduled to speak are European University Institute Professor Martin Scheinin and DePaul University Law Professor Emeritus M. Cherif Bassiouni.
The event is a joint project of FICHL, the European University Institute, and Peking University International Law Institute.
With regard to the theme, organizers write:

Write On! Armed forces accountability

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

Organizers of a conference entitled The Self-Interest of Armed Forces in Accountability for their Members for Core International Crimes are seeking "two or three relevant papers" to round out the event, which will be held November 27, 2012, at Stanford University in California.
Among those already scheduled to take part are Richard J. Goldstone, former Chief Prosecutor of the International Criminal Tribunals for the former Yugoslavia and for Rwanda, many military lawyers, and other experts.
Deadline for submissions is this coming Wednesday, February 1, 2012. Details here.

Independent Panel on ICC Judicial Elections

The Independent Panel on ICC Judicial Elections, about which we've blogged before (here, here and here), has recently issued a statement and report on the upcoming elections for new judges for the International Criminal Court. Richard Goldstone chairs the panel, aided by IntLawGrrls alumna Patricia Wald as Vice-Chair. (credit for photo of ICC headquarters at The Hague)

The Independent Panel, which is composed of international law and judicial experts from around the world from both civil and common law systems, assessed judicial candidates for the ICC based on the requirements of the Rome Statute. A creature of the NGO Coalition for the International Criminal Court (CICC), the Panel's goal is to provide an independent assessment of whether each judicial candidate fulfils the qualifications prescribed by Article 36 of the Rome Statute. Most importantly, this provision provides that:

(a) The judges shall be chosen from among persons of high moral character, impartiality and integrity who possess the qualifications required in their respective States for appointment to the highest judicial offices.

(b) Every candidate for election to the Court shall:

(i) Have established competence in criminal law and procedure, and the necessary relevant experience, whether as judge, prosecutor, advocate or in other similar capacity, in criminal proceedings [List A]; or

(ii) Have established competence in relevant areas of international law such as international humanitarian law and the law of human rights, and extensive experience in a professional legal capacity which is of relevance to the judicial work of the Court [List B]...

The provision also aims to ensure geographic and equitable gender representation. On the latter criteria, we noted earlier that no women were originally nominated for a spot on the ICC bench. Moreover, there were very few individuals designated as qualified pursuant to List B. In the final list of nominations, two women appear:

• Miriam Defensor-Santiago (right) of the Philippines (prior IntLawGrrls posts); and
• Olga Venecia Herrera Carbuccia of the Dominican Republic.

In terms of the Report's conclusions, it is clear that this Panel was not destined to be a rubber stamp. The Panel sought additional information where candidate dossiers were incomplete and reviewed outside information in addition to the materials provided by the Assembly of State Parties (ASP) Secretariat and the CICC (including a detailed questionnaire). On the basis of this work, they reached the following conclusions:

Qualified List A:

Rosolu John Bankole Thompson (Sierra Leone)

Vinod Boolell (Mauritius)

Modeste-Martineau Bria (Central African Republic)

Bruno Cathala (France)

Eduardo Cifuentes Munoz (Colombia)

Chile Eboe-Osuji (Nigeria)

Robert Fremr (Czech Republic)

Olga Venecia Herrera Carbuccia (Dominican Republic)

Antoine Kesia-Mbe Mindua (Democratic Republic of Congo)

Howard Morrison (United Kingdom)

Hamani Mounkaila Nouhou (Niger)

Qualified List B:

Wladyslaw Czaplinski (Poland)

Miriam Defensor-Santiago (Philippines)

Unqualified

Ajmi Bel Haj Hamouda (Tunisia) - List A (for lack of necessary relevant experience in criminal law proceedings)

Javier Laynez Potisek (Mexico) - List A (for lack of direct professional experience in criminal law)

George A. Serghides (Cyprus) - List A (for lack of the necessary relevant experience in criminal law proceedings)

Jorge Antonio Urbina Ortega (Costa Rica) - List B (for lack of experience in either humanitarian law or human rights)

All the dossiers can be found here.

In reaching these conclusions, the Panel made clear:

The Panel does not endorse, oppose or rank candidates. The Panel's determination of 'Qualified' or 'Not Qualified' for each candidate is based strictly on the requirements of the Rome Statute.

The Panel also made a number of important suggestions regarding the nomination process, such as that the Assembly of States Parties:

• work with governments to ensure that their nomination packets are complete and comply with the Statute
• consider what to do about potential conflicts of interest involving elected judges who are not immediately called for service
• address the legal and policy questions around the fact that there maybe two judges of the same nationality on the bench if outgoing judges are retained for continuing proceedings
• consider utilizing age restrictions or health assessments to ensure that candidates will be able to serve their full terms
  
• adopt a voluntary code of conduct for ICC judges to ensure they do not make remarks in public about legal issues on which they may be required to rule
• establish its own internal expert Panel to vet candidates

Our colleague Bill Schabas adopts a critical stance toward the results, arguing that the review was too mechanistic and formulaic. He also takes issue with the conclusion that Judge Bankole Thompson, a judge on the Special Court for Sierra Leone, is "qualified" in light of his dissent in the CDF case (beginning at p. 21339 here, and continuing here). In it, he conflated the jus ad bellum and the jus in bello to argue that members of the goverment-supported Civil Defence Forces should be exonerated, not withstanding their involvement in international crimes, in light of the fact that they were fighting a "just war." Under the circumstances, Professor Schabas would choose the Cypriot family law judge over someone "with such a misguided view of personal responsibility for atrocity crimes."
The elections to fill the 6 open spots are scheduled to take place during the next meeting of the Assembly of States Parties, December 12-21, 2011, in New York. It promises to be interesting ...

How to deepen shallow ICC judges pool

Of the six vacancies, two should be filled by candidates from Latin America and the Caribbean to ensure the court retains a broad geographical representation. But that region has only put forward three candidates, one less than the minimum required to hold a poll.

So wrote Financial Times reporter Caroline Birnham Wednesday in a story whose title says it all: "The Hague struggles to find judges."
The struggle, specifically, is to find qualified women and men to compete in the International Criminal Court judicial election to be held in December. As IntLawGrrl Beth Van Schaack discussed in posts available here, fully a third of the bench will turn over this year. (credit for photo of ICC building)
The ICC extended the judicial nominations deadline by 2 weeks, Birnham wrote in Financial Times; she added, "lack of candidates ... could force another extension."
As our colleague William A. Schabas put it on his blog:

'It's an astonishing situation.'

Too-few numbers aren't the only concern. Outside of the Philippines' Senator Miriam Defensor Santiago (1 of only 3 persons nominated on account of human rights expertise, and 1 of only 2 women nominated), few of the 19 names listed are hugely familiar. Bruno Cathala of France is an exception, though his international experience has been in the role of registrar, and not as an international judge. Sierra Leone's Rosolu John Bankole Thompson has served as presiding judge of the Special Court for Sierra Leone -- in that position, he dissented from the Court's conviction of Sierra Leonean ex-government officials.
One looks in vain for a candidate with the background of some who've served on the International Court of Justice. There's no Higgins or Simma or Greenwood. Nor any Patricia Wald, Richard Goldstone, or Cecilia Medina Quiroga, to name the 3 former judges tasked with vetting the current ICC candidates.
The names of many qualified potential candidates jump to mind. It's to be hoped that ICC states parties, which need not nominate their own nationals, have considered them all.
If, as Article 36 of the ICC Statute now requires, nominations must come from states parties, it's up to states parties to step up and recruit qualified candidates.
If states parties don't step up, it may be time to consider amending the statute to permit civil society to play a more direct role in this essential process.

Go On! Global impact/Sacramento

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

"The Global Impact and Implementation of Human Rights Norms" is the theme of a symposium to be held March 11 & 12, 2011, at the University of the Pacific McGeorge School of Law in Sacramento, California.
To be discussed is the growing incorporation of human rights norms "into the development of substantive law in fields as diverse as labor law, intellectual property, and armed conflict."
Among the Pacific McGeorge faculty who will moderate is IntLawGrrls guest/alumna Linda Carter.
Panelists will include Dinah Shelton, Vice President of the Inter-American Commission on Human Rights; Justice Richard Goldstone, who's visiting this semester at Stanford Law School; Judge Fausto Pocar of the International Criminal Tribunals for the former Yugoslavia and Rwanda; and law professors Svitlana Kravchenko (University of Oregon), Kristen Jakobsen Osenga (University of Richmond), Adrienne Stone (University of Melbourne), Kristen Boon (Seton Hall), and Sabine Schlemmer-Schulte (Pacific McGeorge).
Details and registration here.

Experts to vet aspiring ICC judges

In anticipation of International Criminal Court elections, civil society has tapped several independent experts to vet candidates.
Honored to say that among those serving on the Independent Panel on International Criminal Court Judicial Elections will be an IntLawGrrls alumna. She's Patricia M. Wald (below left), formerly Chief Judge of the U.S. Court of Appeals for the District of Columbia Circuit and Judge of the International Criminal Tribunal for the former Yugoslavia -- and, as demonstrated by prior IntLawGrrls posts, a leading proponent for the selection of exceptional judicial candidates.
Joining Judge Wald on the panel convened by the Coalition for the International Criminal Court will be another woman, Dr. Cecilia Medina Quiroga (below right), Co-Director of the Human Rights Centre at the University of Chile and former President of the Inter-American Court of Human Rights (prior posts).
Completing the panel are 3 men: Hans Corell (prior posts), former Under-Secretary-General for Legal Affairs and Legal Counsel of the United Nations; Justice Richard Goldstone (prior posts), former Prosecutor of the International Criminal Tribunals for Rwanda and the former Yugoslavia; and Judge O-Gon Kwon (prior post), ICTY Vice President and former Presiding Judge at the Daegu High Court in South Korea.
According to a CICC release, these independent experts will be tasked

to help fill a significant gap in the procedures – the lack of a competent, fair, independent assessment of whether the nominees actually fulfil the qualifications prescribed by the Rome Statute.

To do so, the experts will develop a vetting procedure like that some national bar associations use to evaluate domestic judicial candidates. Their yardstick will be Article 36(b) of the Rome Statute of the ICC, which states:

(a) The judges shall be chosen from among persons of high moral character, impartiality and integrity who possess the qualifications required in their respective States for appointment to the highest judicial offices.
(b) Every candidate for election to the Court shall:
(i) Have established competence in criminal law and procedure, and the necessary relevant experience, whether as judge, prosecutor, advocate or in other similar capacity, in criminal proceedings; or
(ii) Have established competence in relevant areas of international law such as international humanitarian law and the law of human rights, and extensive experience in a professional legal capacity which is of relevance to the judicial work of the Court;
(c) Every candidate for election to the Court shall have an excellent knowledge of and be fluent in at least one of the working languages of the Court.

ICC States Parties are expected this year to put forward candidates for election by the ICC Assembly of States Parties, given that the 9-year terms of 6 ICC judges will expire in March 2012.

Go On! International Conflict & Negotiation Colloquium at Stanford

Anyone in the Bay Area should check out the Stanford Center on International Conflict & Negotiation's International Conflict Resolution Colloquium. The Colloquium is being convened by Professors Allen Weiner (Law--right); David Holloway (Political Science); and Lee Ross (Psychology).
All Colloquium sessions meet from 4:30 p.m. to 5:45 p.m. on Thursday in Room 90 of the Law School.

The schedule is below:

► January 6: Allen Weiner (above right)
Senior Lecturer in Law, Stanford Law School
Barriers to Conflict Resolution: The Israeli-Palestinian Conflict

► January 13: Richard Goldstone (right)
Former South African Constitutional Court Justice, Visiting Professor, Stanford Law School
South Africa’s Transition to Democracy: The Role of the Law

► January 20: James Fishkin (right)
Director, Center for Deliberative Democracy,
Janet M. Peck Chair in International Communication, Stanford University Deliberative Democracy and Conflict Resolution

► January 27: Christopher R. Hill (left)
Dean, Josef Korbel School of International Studies, University of Denver,
former United States Ambassador to Iraq
The Iraqi Conflicts

► February 3: Beth Van Schaack (right)
Associate Professor, Santa Clara Law School
Negotiating at the Intersection of Power and Law:
The International Criminal Court and the Definition of Aggression

► February 10: Omar Dajani (left)
Professor of Law, McGeorge School of Law, University of the Pacific
Shadow or Shade – The Roles of International Law in Palestinian-Israeli Peace Talks

► February 17: James T. Campbell (right)
Edgar E. Robinson Professor in United States History
Settling Accounts? History, Narrative, and Historical Reconciliation

► February 24: Avishai Margalit (left)
George F. Kennan Professor in the School of Historical Studies at the Institute for Advanced Study
Sectarianism

► March 3: Christopher Greenwood (right)
Judge, International Court of Justice
International Conflict Resolution and the International Court of Justice

Hope to see you there!

Prizing human rights

An institution established in memory of a Nuremberg prosecutor is seeking prize nominees.
Institution:
The Thomas J. Dodd Research Center, dedicated in 1995 at the University of Connecticut. The Center's namesake is Thomas J. Dodd, who began his career in the U.S. Department of Justice and went on to serve as a senior prosecutor at Nuremberg (right), cross-examining defendants in the Trial of the Major War Criminals and serving too in subsequent Nuremberg proceedings. (photo credit) Dodd, born in 1907, was a Democratic U.S. Senator from Connecticut from 1959 until a few months before his death in 1971; his children include the retiring senior Senator from Connecticut, who published his father's Letters from Nuremberg (2007), as well as a former U.S. Ambassador.
Prize:
The Thomas J. Dodd Prize in International Justice and Human Rights, awarded biennially by the University of Connecticut "to an individual or group who has made a significant effort to advance the cause of international justice and global human rights." Previous winners (here and here): 2003, Bertie Ahern and Tony Blair, then Prime Ministers of Ireland and Britain, respectively; 2005, Louise Arbour (left), then U.N. High Commissioner for Human Rights, and former South African Constitutional Court Justice Richard J. Goldstone, like Arbour a onetime Chief Prosecutor of the International Criminal Tribunals for the former Yugoslavia and Rwanda; 2007, the Center for Justice & Accountability, of which IntLawGrrls guest/alumna Pamela Merchant serves as Executive Director, and Mental Disability Rights International, last month renamed Disability Rights International; and 2009, the Committee to Protect Journalists.
To nominate a worthy individual or group for this monetary prize (no self-nominations accepted), complete and submit the form available here. Deadline is December 31, 2010.

Against aggression

(1 in a series of IntLawGrrls' Kampala Conference posts)

Serendipity led me this month finally to read Victors' Justice.
Over the years I'd often given it the Washington read -- the flip through the index to pinpoint selected passages -- and cited it accordingly (e.g., here and here). After all, this 1971 work by Amherst History Professor Richard H. Minear stands as a landmark critique of the post-World War II trial of Japanese leaders before the International Military Tribunal for the Far East (above left).
The serendipity of my close read this month surfaced as early as page xi.
In the preface penned in May 1971 -- when controversy over the Vietnam War was seething -- Minear endorsed prosecution for "conventional war crimes" like those committed 3 years earlier at My Lai (additional post). Minear also supported holding "at least two American presidents and their civilian and military advisors" accountable for tactics deemed "of highly dubious legal character" by no less a figure than retired Brigadier General Telford Taylor (right), a former top U.S. Prosecutor before the International Military Tribunal at Nuremberg and author of Nuremberg and Vietnam: An American Tragedy (1970). Yet Minear warned against any court going any further:

But when the issue is not conventional war crimes but aggression, when it is the whole course of American policy and indeed the history of Indochina and East and Southeast Asia, then I must demur.

Hence the serendipity.
Minear's demurrer brought immediately to mind the 2-week International Criminal Court Review Conference set to begin tomorrow in Kampala, Uganda. As detailed in the superb series that IntLawGrrl Beth Van Schaack launched last year, among the key action items that the ICC Assembly of State Parties will take up at Kampala are, 1st, whether to define the "crime of aggression" enumerated in Article 5 of the ICC Statute and, 2d, whether to make that definition operational, thus authorizing the ICC to punish individuals found guilty of the offense.
Supporters of international criminal justice have divided on these questions.
► Among the staunchest advocates of a "Yes" approach is another U.S. prosecutor at Nuremberg, Benjamin B. Ferencz (below right), who wrote in a March 2010 letter published online:

[T]he lock which now exists preventing aggressors from being tried must be removed from the courthouse door. Failure to make 'the supreme international crime' punishable by the ICC would, in fact, be a repudiation of the Nuremberg Principles and the rule of law. It would be a step backward instead of forward.

► Among several experts who answer "No" is former South Africa Constitutional Court Justice Richard Goldstone (below left), who served as the 1st Prosecutor at the International Criminal Tribunals for Rwanda and for the former Yugoslavia. In an International Herald Tribune op-ed published last week (hat tip), Goldstone wrote:

Grappling with aggression now also threatens to open rifts among members of the Court. Despite years of complex negotiations, deep disagreements persist over key issues related to amending the statute on aggression, such as state consent and how cases would be initiated. Attempting to force a decision absent consensus would vitiate one of the strongest assets the Court has had — the solidarity of it members in the face of efforts to undermine the project.

In Victors' Justice -- self-avowed "political scholarship" (p. xiii) written decades ago -- Minear cited other considerations that counsel an ICC "No" vote this year.

► Minear doubted that any criminal tribunal could make a record sufficiently close to the truth about responsibility for starting a war, even as he allowed that for a court to "come closer to the truth" than the Tokyo Tribunal did in its 1948 judgment "would be child's play." (p. xi) (Skepticism about the assignment to international criminal tribunals of a truth-telling function has inspired my own scholarship; see, e.g., pp. 132-33 here.)

► Minear further contended that the pursuit of convictions for aggression -- not for atrocities committed during conflict, but rather for "the war itself" -- would have little utility beyond being "politically convenient and satisfying." (p. xi) He expanded on the political aspects of proceeding against persons who lost World War II:

The reverse of the coin of enemy criminality was the rightness of the course pursued by the Allies in the same years. The trials were designed not only to punish wrongdoers but also to justify the right side, our side.

(p. 13) The distance between those designs and the traditional goals of criminal justice reveals the condemnation implicit in Minear's contention.
What's more, the villainization of 1 side via an aggression prosecution could diminish a prosecutor's appetite to pursue perpetrators of atrocities on all sides. (Any such risk simply compounds the problems of randomness and selectivity, discussed here at pp. 116-17, that are endemic to international criminal justice.) Post-World War II examples of this risk may be found in -- to cite Taylor's 1992 memoir, The Anatomy of the Nuremberg Trial -- the Nuremberg indictment of Germans for atrocities at Katyn that in fact were committed by troops of an Allied country, as well as the absence of judicial scrutiny of Allied bombing efforts in Europe and Japan alike. (Minear too treated the latter; see pp. 99-102.) More recent are allegations that ad hoc tribunals have concentrated overmuch on crimes by members of disfavored groups, such as the Serbs and the Hutu, and not enough on the crimes of those groups' rivals.

► Minear detailed concerns like these throughout the couple-hundred pages of his book. His litany supported the policy conclusion that he articulated as early as p. xi:

The Tokyo trial is a bad precedent, bad enough, I suggest, to cast doubt on the Nuremberg precedent as well. The wiser course would be to return to the international law of the period before 1945, when atrocities were considered justiciable but the issue of aggression was not.

Minear's arguments retain force today, 39 years to the month after they were written. Still valid too are concerns underlying Minear's work: revulsion against the evils of warfare, coupled with distaste for the threat that the reality of politicization poses to the meaning of justice. It shows that one may be against aggression in a double sense; that is, against individual criminal prosecution of aggression even while remaining steadfastly against the commission, by individual, state, or nonstate entity, of aggression.

Thus does Minear's conclusion back then suggest a "wiser course" for the ICC right now:

Focus not on assessing the criminality-or-not of a given conflict, but rather on assuring the proper criminal punishment of persons responsible for the world's worst offenses.

(Cross-posted at ASIL Blog - International Criminal Court Review Conference)

On November 14

On this day in ...

... 1995, Richard Goldstone, then the Prosecutor of the International Criminal Tribunal for the former Yugoslavia, indicted 2 Bosnian Serb leaders on charges of genocide, crimes against humanity, and war crimes stemming from the massacre of Bosnian Muslim boys and men at Srebrenica. This indictment followed another, issued 3 months earlier, which had charged the same 2 men, Bosnian Serb President Radovan Karadžić and and Gen. Ratko Mladić, with international crimes related to other aspects of the war in Bosnia. As we posted here and here, it took 13 years for the capture of Karadžić; his trial began last month despite his boycott (left) of the proceedings, which readers may follow via webcast here. Mladić remains a fugitive.

(Prior November 14 posts are here and here.)

'Nuff said

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

But above all, I accepted because I believe deeply in the rule of law and the laws of war, and the principle that in armed conflict civilians should to the greatest extent possible be protected from harm.

-- Richard Goldstone (right), former Chief Prosecutor at the International Criminal Tribunals for the former Yugoslavia and Rwanda and former Justice of South Africa's Constitutional Court, in Justice in Gaza, an op-ed discussing his recent service as head of the U.N. Fact-Finding Mission on the Gaza Conflict. Commissioners -- Goldstone, LSE Professor Christine Chinkin, Pakistan Supreme Court Advocate Hina Jilani, and Irish Colonel Desmond Travers -- issued a report to the Human Rights Council (newest member: USA), finding war crimes on both sides, in mid-September. The report's available in full here.

Who said what on Gaza

Figuring out who said what about Palestine in recent days proved yet another mainstream media scavenger hunt.
► Reuters wrote Friday that "a report by U.N. High Commissioner for Human Rights Navi Pillay lambasted the 'nearly total impunity' for the violations," then proceeded to list "Pillay's recommendations" respecting the issue.
► Christian Science Monitor reporter Ilene R. Prusher led Thursday with a Human Rights Watch report on Gaza, the area depicted in cream coloring at right. She then anticipated that "what are expected to be two critical United Nations reports." (map credit) Prusher continued:

Israel has refused to cooperate in the investigation that is expected to yield the harsher of the two reports. That investigation is headed by Judge Richard Goldstone, a former war-crimes prosecutor from South Africa who was appointed by the UN Human Rights Council in Geneva. Israel has criticized the council, which has a rotating membership that currently includes countries such as Saudi Arabia, Kyrgyzstan, and Angola, as biased and thus unfit to accurately assess its actions.
Israel has provided assistance, however, to investigators working on a second report, being conducted by the UN Commission on Human Rights.

Although the 1st paragraph makes sense, the 2d does not: as posted, the "UN Commission on Human Rights" disbanded in 2006 to make way for the "UN Human Rights Council." One guesses the 2d paragraph was intended to refer to the inquiry on which Reuters reported a day later. Yet this too appears a bit askew.
That's because the website of the Office of the U.N. High Commissioner for Human Rights attributes the Friday report not directly to Commissioner Pillay, but rather to the Special Committee to Investigate Israeli Practices Affecting the Human Rights of the Palestinian People and Other Arabs of the Occupied Territories. The U.N. General Assembly renewed the mandate of this 41-year-old Special Committee just last December, via Resolution A/RES/63/95. Its 3 current members -- representing Malaysia, Senegal, and Sri Lanka -- conducted a 10-day field mission to Egypt, Jordan, and Syria at the beginning of this month, and then concluded:

'Violations of the international humanitarian law during the operation Cast Lead, in particular the targeting of civilian population and wanton destruction of property and religious and cultural objects.'

The Special Committee will present its findings -- based on field mission interviews and expert reports from nongovernmental and governmental organizations -- to the U.N. General Assembly later this year.
Have gone this far in the scavenger hunt, but still not entirely sure who said what.
Reportorial precision would go a long way toward aiding comprehension of the workings of international legal institutions.

Framework for peace and justice

First, I’d like to thank IntLawGrrls for inviting me to be a guest blogger. I appreciate the opportunity to contribute to the blog’s discussion of current issues in international law.

A while back, an IntLawGrrls' 'Nuff said post illustrated how the issue of peace versus justice is in the news again. My own recent scholarship has focused on how the International Criminal Court can balance the demands of peace and justice in, for example, its case in Northern Uganda. The ICC Prosecutor issued arrest warrants against Joseph Kony and other leaders of the Lord’s Resistance Army (LRA) despite fears that such a step would impede ongoing peace negotiations. More recently, the Prosecutor sparked debate with his announcement that he is seeking an arrest warrant for genocide, crimes against humanity, and war crimes against Sudanese President Omar Hassan Ahmad al-Bashir. Critics contend that the Prosecutor’s move will endanger prospects for peace in Darfur. Others, such as Justice Richard Goldstone, former chief prosecutor for the International Criminal Tribunals for the former Yugoslavia and Rwanda, take the position that the prosecutor’s job is to prosecute, leaving political questions to others.

Under the ICC statute, there are several ways that the peace versus justice issue can be raised. I’ve examined these issues in my article, Achieving Peace with Justice: The International Criminal Court and Ugandan Alternative Justice Mechanisms, 23 Conn. J. Int’l L. 209 (2008), and in a shorter, more general essay, The False Dichotomy of Peace versus Justice and the International Criminal Court, just published in the Hague Justice Journal (in English, with French translation). I offer a framework for balancing peace with justice based on the theoretical underpinnings of the ICC. In my article, I have two objectives:

► First, to offer a solution to a pressing problem at the ICC: how the ICC should respond to calls to drop the arrest warrants in favor of Ugandan alternative justice mechanisms.

► Second, to propose a theoretical framework to apply to the inevitable reoccurrence of the peace versus justice dilemma at the ICC, such as the situation in Darfur and the most recent site of inquiry, Colombia.

With regard to the Ugandan situation, the ICC Prosecutor has characterized the demands of the LRA for immunity from ICC prosecution as blackmail and extortion. The LRA is notorious for atrocities including mutilating and killing civilians, often at the hands of children it has forcibly abducted into its forces. The ICC was created to end impunity for international crimes. But can it insist that states reject trading peace for justice when the cost of refusal is measured in human lives?

While many speak in terms of peace versus justice, it is possible to achieve both peace and justice. The ICC’s institutional mandate is to prosecute or to facilitate prosecution at the national level. The Rome Statute is sufficiently ambiguous to allow the ICC to defer to nonprosecutorial alternatives in extreme circumstances. For example, the ICC might be faced with a request to suspend the case from the U.N. Security Council pursuant to Article 16 of the ICC Statute. The ICC might consider whether an alternative process such as a truth commission blocks the case under the principle of complementarity (Article 17) or under ne bis in idem (Article 20). Finally, the Prosecutor, with the acquiescence of the Court, might decide not to investigate or prosecute as a matter of discretion, in the “interests of justice” (Article 53).

In interpreting these provisions, the ICC should not only consider statutory interpretation, but also assess the proposed alternative:

► It should first evaluate whether nonprosecutorial alternatives are necessary and legitimate.

► If they are, the ICC then should examine the goals of international criminal justice.

Where the alternative mechanism furthers retribution, deterrence, expressivism, and/or restorative justice to an extent similar to that provided by international prosecution, the ICC should defer. In this way, the ICC might ensure that there is at least some measure of accountability for international criminals without blocking peace initiatives vital to ending mass killings and other atrocities.

This framework offers only a starting point for solving the very complicated problem of balancing peace with justice. In Uganda, for example, the peace plan offers a confusing mix of alternatives to ICC prosecution, making reference to both traditional justice mechanisms and domestic prosecution. The Uganda situation is still fluid, with some negotiators attempting to keep the peace process alive despite Kony’s failure to sign the peace deal, while others argue for a military solution. (credit for USAID photos of some of Uganda's internally displaced children)

The ICC can, of course, be only part of the solution to complex conflicts, in Africa and elsewhere.

News flash: Karadžić arrested

After more than a decade on the run, Radovan Karadžić has been arrested in Serbia.

Karadžić (below), the former President of Republika Srpska, the breakaway Bosnian Serb Republic, was seized Monday night in Serbia, according to Serbian President Boris Tadić, "'in an action by the Serbian security services.'" Tadić added that the longtime fugitive then was brought into a Serbian courtroom, the BBC reported:

'Karadzic was brought to the investigative judge of the War Crimes Court in Belgrade, in accordance with the law on cooperation with the International Criminal Tribunal for the former Yugoslavia.'

As posted, Richard Goldstone, then the ICTY's Chief Prosecutor, indicted Karadžić and Bosnian Serb General Ratko Mladić in 1995 on charges related to their supervisory role in atrocities committed during the Balkans War. The amended indictment, issued in 2000 and including a charge of genocide at Srebrenica, is here.

In a statement issued today, the current Chief Prosecutor, Serge Brammertz, said:

This is a very important day for the victims who have waited for this arrest for over a decade. It is also an important day for international justice because it clearly demonstrates that nobody is beyond the reach of the law and that sooner or later all fugitives will be brought to justice.

Even as Karadžić now awaits likely transfer to the ICTY, Mladić remains at large.

Toward a crimes against humanity treaty

A 2-year project to study the international law regarding crimes against humanity and to draft a multilateral treaty condemning and prohibiting such crimes has been launched by the Whitney R. Harris World Law Institute at the Washington University School of Law in St. Louis. The project's the brainchild of our colleague Leila Nadya Sadat (right), Henry H. Oberschelp Professor of Law and Director of the Harris Institute, which is named after one of the American prosecutors before the International Military Tribunal at Nuremberg, which tried Nazi war criminals after World War II. As international criminal law aficionados well know, the crime against humanity was one of the 3 crimes set out in the tribunal's London Charter.
Prompting this new move toward a comprehensive international response to crimes against humanity are a number of developments:
► Broad international support for the Rome Statute of the International Criminal Court, which includes crimes against humanity among the offenses within the ICC's jurisdiction;
► Discussions among members of the U.S. Congress of criminal sanctions for crimes against humanity; and
► The considerable body of jurisprudence that various international criminal tribunals have produced in the last decade.
Sadat chairs the project's steering committee. Another member, DePaul University Law Professor M. Cherif Bassiouni, has agreed to chair the treaty drafting committee. Also on the steering committee are Hans Corell, former U.N. Under-Secretary for Legal Affairs; Richard Goldstone, former Justice of the South African Constitutional Court and former Chief Prosecutor of the International Criminal Tribunals for Rwanda and for the Former Yugoslavia; Juan Méndez, President of the International Center for Transitional Justice and former President of the Inter-American Commission for Human Rights; William Schabas, Director of the Irish Centre for Human Rights, National University of Ireland, Galway; and Judge Christine Van Den Wyngaert (below left) of the International Criminal Tribunal for the Former Yugoslavia.
The steering committee plans to invite leading scholars and jurists to participate in an April 2009 Experts Roundtable, at which research on specific substantive and procedural aspects of the draft convention will be presented. The project will culminate with a global conference on crimes against humanity, at which the draft convention will be discussed.

Guest Blogger: Fatou Kiné Camara

IntLawGrrls is pleased to introduce our guest blogger for today, Professor Fatou Kiné Camara (left). Kiné is Associate Professor of Law at the Cheikh Anta Diop University in Dakar, Senegal, where for almost twenty years she has taught Family Law, International Law (private aspects), International Arbitration and Dispute Settlement, and African Customary Law. (The New York Times did a story on the university, which can be found here.)
Kiné's research and writing centers on African customary law with an emphasis on feminist jurisprudence from an African perspective. Kiné is the author of two books (in French), Power and Justice in Black People’s Tradition and Matrimony in Black People’s Tradition, and is hard at work on her third, Propositions for a Democratic, Humanist and Developed Africa, which will provide a detailed blueprint on adapting Ancient Africa’s social, economic, and political structures to current challenges facing the continen a range of areas:
► "establishing a true democracy at every level of society";
► "implementing an effective industrialisation program"; and
► "changing the philosophy of the criminal law system."
A prolific writer, Kiné’s law review articles are too numerous to cite here, but a sampling includes: Women and the Law - A Critique of the Senegalese Family Law (Social Identities Journal for the Study of Race, Nation and Culture, Volume 13 Issue 6, 787), The Constitution of the Wolof Monarchies and the Lebu Republic: Addressing Gender in a Secular and Representative Democracy, (Droit Sénégalais, n°6, Nov. 2007), and Research on African Customary Law: A Proposed Methodology (Revue de Droit Sénégalais, n°5, November 2006). She was a visiting professor at Griffith Law School in Brisbane, Australia, and Gaston Berger University in Saint-Louis, Senegal, and was a faculty member in a seminar led by Richard Goldstone (former Justice of the South African Constutitonal Court and the first chief prosecutor in the UN International Criminal Tribunal for the former Yugoslavia) entitled “Reconciling Religion and Culture in a Constitutional Framework.” When she is not teaching, writing or traveling, Kiné is an exceptional visual artist; her work was showcased at a gallery in Washington, D.C.
Kiné was recently invited to present a paper on African Customary law at a conference hosted by Fordham's Leitner Center for International Law and Justice, and her post below provides a glimpse at that forthcoming presentation. Kiné dedicates her guest post to Lingeer Ndaté Yàlla (depicted below). “Lingeer” is roughly translated from the Wolof (one of Senegal’s languages) as “queen,” although Kiné notes that in the West a queen is either the spouse of the king, or a woman who rules alone on the throne. By contrast, the Lingeer—who may be married—holds the title of counselor to the king, but she effectively holds true political power. As head of the kingdom of Waalo, Lingeer Yàlla, who joins IntLawGrrls' transnational foremothers listed at right, fought the French colonial army until her troops were defeated in 1855. You can read more on her life in French here and here, and in the English-language children's book depicting her at left.
Heartfelt welcome!