Rhino horn trading & resilience of criminal networks

(Many thanks to IntLawGrrls for inviting me to contribute this introductory post)

Wildlife crime is a growing global problem, with major implications for biodiversity conservation.
The trafficking of rhinoceros horn provides a clear illustration of the difficulties that are encountered in attempting to combat the illegal transnational wildlife trade. All five species of rhinoceros are under threat; three of the five ((Black, Sumatran and Javan rhinos) have ‘critically endangered’ status on the Red List of Threatened Species produced by the International Union for the Conservation of Nature, a Switzerland-based nongovernmental organisation. (prior IntLawGrrls posts here, here, here, here, and here)
While habitat destruction is contributing to a massive decline in numbers of rhinos worldwide, poaching for horn is the main culprit.
Recently I wrote a paper about the illegal trade in rhino horn, as part of the Transnational Environmental Crime Project being undertaken at the Australian National University. The project is funded by the Australian Research Council, and conducted in partnership with the Australian Department of Sustainability, Environment, Water, Population and Communities.
About 80% of the remaining world rhinoceros population is in South Africa. In the last five years, the numbers of rhinoceros poached in that country alone has increased exponentially, rising from 13 in 2007 to 448 in 2011. The 2012 number is well on the way to surpassing 500.
The population growth rate for South Africa’s estimated 20,700 rhino is 6% per year, but rhino poaching escalated by 35% between 2010 and 2011 alone.
These figures have given rise to concern that extinction of the species is a real possibility, despite the limits on trade imposed by the 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora, known as CITES.
The main black market for rhino horn lies in Southeast Asia, particularly Vietnam and China, where demand is driven by a belief that horn has curative properties for a range of ailments (recently expanded to include cancer), and by its use as a status symbol amongst elites. Organized crime networks are taking advantage of opportunities, presented by cultural norms and by the wealth of the growing middle class in the region, to traffic rhino horn to these markets.
Greed is a powerful driver of the trade, with enormous profits to be made. But this alone does not alone determine the trade’s sustainability.
As my paper notes, the illegal trade in wildlife is increasingly meeting with resistance from states and the international community, in the form of law enforcement and regulatory initiatives. Both money and effort are going into training and deployment of personnel to patrol poaching hotspots. New technologies for monitoring rhinos and tracking and catching poachers and smugglers are being deployed. More international agreements, designed to strengthen political will and law enforcement responses, are being signed. Campaigns are under way to inform consumers that rhino horn has no medicinal qualities and make them aware of the horrendous consequences of the trade for the animals themselves.
So why does the illegal trade persist?

On September 20

On this day in ...
... 1977 (35 years ago today), pursuant to recommendations received from the U.N. Security Council in July of the same year, the U.N. General Assembly voted to admit 2 countries as new member states.
Resolution A/RES/32/1 admitted to membership the Republic of Djibouti (flag above left), while Resolution A/RES/32/2 did the same for the Socialist Republic of Viet Nam (flag at right).


(Prior September 20 posts are here, here, here, here, and here.)

Cluster outlier

Its effort to place itself nearer to a 3-year-old weapons control movement having failed, the United States remains an outlier among countries working to eliminate cluster bombs.
Since 2008 the motive force for banning these bombs -- known to present a tragic risk of misuse by children -- has been the Convention on Cluster Munitions. As we've posted, that international treaty was adopted at a diplomatic conference in Dublin in June 2008. It opened for signature the following December in Oslo, Noway (thus it's sometimes called the Oslo Convention), and it entered into force in August 2010. Today it has 66 states parties, including not only
► Countries that have suffered conflict, among them Afghanistan, Côte d’Ivoire, Central African Republic, Chad, Democratic Republic of Congo, Iraq, Laos, Lebanon, Liberia, Tunisia, Sierra Leone, and Uganda, but also
► U.S. neighbors like Canada and Mexico,
► NATO members (in addition to Canada) like Albania, Belgium, Bulgaria, Croatia, Czech Republic, Denmark, France, Germany, Italy, Lithuania, Luxembourg, Netherlands, Norway, Portugal, Slovenia, Spain, and the United Kingdom, as well as
► Japan and Australia, key Pacific allies of the United States.
An additional 45 states have signed but not ratified.
The United States opposed the Cluster Munitions Convention from the get-go. Back in 2008, some in America contended that countries given to military intervention would not join. The states parties list above reveals that a number of countries do not view intervention and a cluster-bomb ban as mutually exclusive.
Still, State Department Legal Adviser Harold Hongju Koh told reporters earlier this month:

[M]any countries in the world are not parties to Oslo and are unlikely to become so, and that they represent 85 to 90 percent of the world’s cluster munition stockpiles. So a question then becomes: How do you regulate that 85 to 90 percent holders if they’re never going to join the Oslo Convention?

His answer? Urge adoption of a less comprehensive prohibition within the framework of a different weapons control regime. It's the 1980 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects as amended on 21 December 2001, known for short as the Convention on Conventional Weapons, of which the United States is a member. Koh advocated a draft protocol that would have banned cluster munitions made before, but not after, 1980. (credit for photo at left of Vietnam War-era U.S. cluster bomblet) (The August version of the proposal and an alternative draft plan are available here.) Koh stated at his November 16 press conference:

We see the two as complementary, not as competitive. Nothing that we are saying or supporting would diminish or detract from the Oslo Convention ...

The U.S. official who'd joined Koh at the press conference, Assistant Secretary of Defense Bill Lietzau, agreed.
But a portion of the rest of the world did not see it that way.
The International Committee of the Red Cross had spoken against the protocol the day before the Koh-Lietzau press conference. And this past Friday, concluding the Conventional Weapons Convention 4th Review Conference in Geneva, diplomats rejected the draft protocol even though the instrument had won support from cluster-munitions producers China, India, and Russia, as well as the United States.
A Human Rights Watch representative saw in the result proof of a "powerful alliance driving the Oslo partnership."
Also to be seen is a familiar dynamic: the United States would place itself on the side of disarmament and accountability, yet will not embrace multilaterally approved means toward those ends.
Stating it was "deeply disappointed," the U.S. Mission in Geneva said:

In the wake of this outcome, the United States will continue to implement its own voluntary policy to prohibit by 2018 the use of cluster munitions with more than a one percent unexploded ordnance rate, and we encourage other countries to take similar steps. The United States will also continue to serve as a world leader in addressing the humanitarian impact of cluster munition and other explosive remnants.

In short, on this as on other issues, the United States will go it alone.

On February 4

On this day in ...
... 1973, teams of inspectors known as the International Commission of Control and Supervision began monitoring a truce in the U.S.-Vietnam War, pursuant to an agreement reached a few days earlier at peace talks in Paris. The commission included delegates from Hungary, Poland, Canada and Indonesia. Sporadic fighting would continue, ending "with the fall of Saigon in April 1975 and the reunification of the country under communist rule."

(Prior February 4 posts are here, here, and here.)

Guest Blogger: Kim Thuy Seelinger

It's IntLawGrrls' great pleasure to welcome Kim Thuy Seelinger (left) as today's guest blogger.
Kim directs the Sexual Violence & Accountability Project at the Human Rights Center at the University of California, Berkeley, School of Law. The Project pursues interdisciplinary strategies to address impunity for sexual violence.
Prior to joining the Human Rights Center, Kim was a staff attorney and clinical instructor at the Center for Gender and Refugee Studies at the University of California Hastings College of the Law. There she co-taught the Refugee and Human Rights Clinic with our Hastings colleague Karen Musalo (prior IntLawGrrls posts). Kim also represented asylum seekers who were fleeing gender-based violence. She's also served as a Yale-China Association Legal Education Fellow in southwest China and as immigration staff attorney with Lutheran Family & Community Services in New York City. She earned her J.D. from New York University School of Law, and serves on the Board of Directors of the Southeast Asia Resource Action Center.
Kim's scholarship focuses on issues of gender-based violence, persecution based on sexual orientation, and developments in asylum jurisprudence. Most recently, this year she published "Violence Against Women and HIV Control in Uganda: A Paradox of Protection? ," in the Hastings International and Comparative Law Review. Her sample-based analysis of asylum claims involving forced marriage is forthcoming. Ki'ms current interests include the relationship of legal and medical sectors in the prosecution of sexual violence, as well as the intersection of women's rights and health status in general. In her guest post below, Kim discusses a range of efforts to address sexual violence in Kenya.
She writes the following dedication:

Kim dreams her international foremother to have been Trưng Trắc, a Vietnamese village woman born in the 1st century. Under the strain of Chinese Han control over North Vietnam, Trưng Trắc and her younger sister (atop elephants), led a predominantly female legion to temporarily expel Han dynasty forces from the northern prefectures.

Today Trưng (image credit) joins IntLawGrrls' other foremothers in the list just below the "visiting from..." map at right.

Heartfelt welcome!

On December 18

On this day in ...
... 2003, Susan Travers (left) died in the Paris area, 94 years after her birth in southern England. The daughter of an admiral, she grew up "a young tennis-playing socialite in the south of France," and eventually "became the first and only woman ever to serve" in the French Foreign Legion. Her sojourn began with the onset of the World War II. Travers joined the French Red Cross, serving 1st as a nurse and later as an ambulance driver. (photo credit) She volunteered as a driver for Free French officers in the North Africa campaign, and took part in a month-long battle with Nazi Germans at Bir Hakeim, Libya. Officially admitted to the Foreign Legion's ranks, Travers, "creating her own uniform," served in Vietnam, then married another legionnaire and retired to Paris. Travers published a memoir shortly before her death.

(Prior December 18 posts are here, here, and here.)

Minorities in Viet Nam

(It’s IntLawGrrls’ great pleasure to welcome back alumna Gay McDougall, who contributes this guest post)

This month I conducted a 10-day official visit to Viet Nam. My objectives for this, my 10th such country visit, were to hold consultations on minority issues and to examine the human rights situation of Viet Nam’s numerous minority groups. These goals conform with my mandate as the Independent Expert on Minorities for the United Nations: to promote implementation of the U.N. Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, and to identify challenges, as well as successful practices, in regard to minority issues.

I would first like to thank the Government of Viet Nam for extending an invitation to me and for the high level of importance that it attached to my visit, apparent in the assistance and access provided to me, at both national and provincial levels. My preliminary comments, excerpted in this post, will be followed by a report containing my full findings and recommendations to the U.N. Human Rights Council next March.

I began my visit in Hanoi before travelling to regions of significant minority populations, including the provinces of Dien Bien in the Northern Highlands, Tra Vinh in the Mekong Delta region, and Gia Lai and Kon Tum provinces in the Central Highlands. (map credit) I met with senior Government officials, representatives of non-governmental organizations, community members, academics, and others working in the field of minority issues, social inclusion and promotion of equality and non-discrimination.

Overview

Viet Nam is a country of great diversity. The majority population consists of those who identify themselves as part of the “Kinh” ethnic group. There are 53 other ethnic groups as well, with unique religious, linguistic and cultural characteristics, and identities. Viet Nam recognizes its minority populations as important constituent parts of its nation, and it understands many of the challenges that it faces to ensure that the rights of minorities are respected, protected and promoted in every sphere of life. The establishment of dedicated Governmental bodies with responsibilities for minorities, including the Committee on Ethnic Minority Affairs, is a positive practice that is replicated on provincial and district levels.
Viet Nam has witnessed a remarkable period of economic growth, progress towards the United Nations' Millennium Development Goals, and highly positive results in respect to poverty alleviation and economic development in general. The Government readily acknowledges that despite these achievements, most minority groups remain the poorest of Viet Nam’s poor.

The acknowledgment of the economic and social gaps that exist between the minority communities and the majority population is an important step towards putting in place the measures required to close those gaps.

Government programs over the past several years have established important initiatives to close those gaps through infrastructure projects, social protection programs and developments in the fields of health and education. The government should be commended for these programs and for the improvements that the programs have made in the lives of minorities.

I understand the challenges facing the government in achieving the rights of non-Kinh ethnic communities, particularly those in the most geographically remote areas. I welcome the government’s affirmation of its commitment to tackling those challenges as a matter of high priority. It is critical that:

► The Government ensures that its economic growth is achieved without negatively impacting on the lives of minorities or deepening their poverty; and

► Minorities share fully in the benefits of growth and prosperity, while maintaining their distinct cultures and identities.

Education

Access to quality and appropriate education is a gateway to development and poverty eradication for minorities. It is equally essential for the preservation and promotion of minority cultures, languages and identities. Education helps minorities to take control of their lives and to fulfill their potential as equal stakeholders in the development of the State. (photo credit)

Viet Nam has made significant progress in the provision of school structures to most Communes, in the option of boarding schools for students from remote villages, and in access to secondary schools for minority children. Nonetheless, I am concerned that minorities are achieving poor results in education relative to Kinh students.

One of the problems that has been identified is that minorities lack adequate opportunities to be taught in their own minority languages from the earliest years of education. They struggle with being taught only in Vietnamese.

With the ultimate goal of fluency in Vietnamese, bilingual education helps minority children to make better early progress in education and provides a strong and culturally appropriate foundation for their future schooling. I look forward to the results of a pilot programme of Mother-Tongue-based bilingual education currently being implemented by the Ministry of Education and Training and UNICEF, including in Gia Lai and Tra Vinh, 2 provinces I visited. Studies done worldwide endorse this approach. It is not sufficient that the Mother-Tongue language is taught as a subject. In preschool, and the first 3 years, it should be the language of instruction, which then transitions to be Vietnamese.

Enjoyment of rights
As in many countries with such diversity, numerous challenges exist to ensuring that members of minority groups can fully realize all their economic, social, cultural, civil and political rights and live in conditions of equality. The rights of minorities include:

► Freedom to practice their religions without restriction;

► Freedom of association and expression;

► Right of peaceful assembly;

► Equal right to own and use land; and

► Right to participate fully and effectively in decisionmaking regarding issues that affect them, including economic development projects and resettlement issues.

(photo credit) Concerns relating to these rights have been raised with me in the context of my visit; in turn, I have raised these issues directly with the Government of Viet Nam at national and provincial levels. I will study closely the information that I have gathered and the responses of the Government before commenting on these issues in my final report.

Conclusion
I believe that my visit marks an important step by the Government of Viet Nam to engage with the human rights bodies and mechanisms of the U.N. system. I welcome the Government’s undertaking to extend further invitations to other U.N. human rights experts in the months ahead, and I hope that these will include invitations to a wide range of mandate holders, including those with mandates in the area of civil and political rights.

On July 11

On this day in ...
... 1995 (15 years ago today), "the one-time student protester" against the Vietnam War, who'd become the United States' leader 2-1/2 years earlier had become the leader of the United States, established full diplomatic relations with Vietnam. President Bill Clinton hearkened to words once used by Abraham Lincoln, President during the Civil War a century earlier, when he said in remarks delivered at a ceremony in Washington:

This moment offers us the opportunity to bind up our own wounds. They have resisted time for too long. We can now move onto common ground.

The move came more than 2 decades after U.S. troops abandoned what was then the capital city of South Vietnam. Today it's known as Ho Chi Minh City, part of the single country of Vietnam depicted above right. In 2000, as depicted in these BBC photos (credit), the President and the 1st Lady -- today, Secretary of State Hillary Clinton -- would make the 1st official visit to Vietnam in a quarter-century.

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

The Vietnam War: Take II

The United States pulled out of an intractable, expensive and highly destructive war in Vietnam in 1975. For decades thereafter, relations between the two countries was nonexistent. But then ever so slowly came the thawing. Trade was a big part of The Great Thaw. Since time immemorial, whether the war involved companies or countries, real peace came only after the warring parties had established strong and deep trade ties between them. Trade has a way of creating new relationships and new memories.

Such has been the experience of Vietnam and the United States. Despite the bitter memories of mass bombings and torture cells deep in the jungle, the two countries forged a path to peace. In 2007, Vietnam joined the World Trade Organization with the aid and support of the United States. Vietnam's accession signaled the renewal of its ties with the international community. But just as important, it signaled a new relationship with the United States. The bonds of that new relationship are now being tested. Just a few weeks ago, Vietnam filed its first ever dispute in the WTO. Against whom? The United States.

In United States — Anti-dumping Measures on Certain Shrimp from Viet Nam (DS404), the two countries once again face off on some heated issues. The U.S. believes Vietnam is "dumping" large quantities of shrimp into the U.S. market. In trade law, dumping occurs when the exporting country sells its products into the domestic market either for less than the cost of production or less than the price sold at home. It is an unfair trade practice, and most countries have laws against such a practice. Vietnam, however, takes issue with the way the United States has calculated the so-called "dumping margin" -- an additional charge the U.S. imposes on Vietnamese shrimp to raise the price to more accurately reflect its normal value (i.e., it's "fair price"). The U.S. dumping methodology has long been under attack, indeed the WTO previously ruled the complicated "zeroing" method in dispute violated U.S. WTO obligations.

In this war, as in the last, Vietnam is likely to win an unexpected victory. What will this mean for relations between the two countries? Thankfully, in a sign of how far we have come since 1975, it is likely to have no effect. Trade = Peace

On December 30

On this day in ...
...1972, the United States ended "nearly two weeks of heavy bombing" of North Vietnam by order of President Richard M. Nixon. The White House announced that National Security Adviser Henry A. Kissinger would go back to Paris to resume peace talks with Vietnamese diplomats. The Paris Peace Accords would be formally signed less than a month later, on January 27, 1973, at the ceremony depicted above right (credit).

(Prior December 30 posts are here and here.)

On November 12

On this day in ...
... 1969 (40 years ago today), a news cable published in more than 30 U.S. newspapers wrote of an Army lieutenant named William L. Calley:

The Army says he deliberately murdered at least 109 Vietnamese civilians during a search-and-destroy mission in March 1968, in a Viet Cong stronghold known as 'Pinkville.'

With this dispatch the author, independent journalist Seymour Hersh, broke the story of the My Lai Massacre that had taken place in the previous year. Decades later Hersh was among the reporters who broke the Abu Ghraib abuse story. And Calley spoke on the earlier incident quite recently, as we've posted.

(Prior November 12 posts are here and here.)

'Nuff said

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

'There is not a day that goes by that I do not feel remorse for what happened that day in My Lai. I feel remorse for the Vietnamese who were killed, for their families, for the American soldiers involved and their families. I am very sorry.'

-- William Calley, his "voice start[ing] to break," as he addressed the Kiwanis Club of Greater Columbus, Ohio, earlier this week (above right). Calley was the only person tried and convicted, at a court martial, of premeditated murder in connection with the 1968 My Lai Massacre. The massacre occurred when he was a 24-year-old lieutenant in the U.S. Army (above left); hundreds of unarmed Vietnamese children, women, and men perished. Calley was released in 1974, but, as he said this week, has not had his civil rights restored.

... and counting ...

(Occasional sobering thoughts.) News of civilian casualties in Afghanistan continues. In its Mid-Year Bulletin on the Protection of Civilians in Armed Conflict in Afghanistan, the Human Rights Unit of UNAMA, the United Nations Assistance Mission to Afghanistan, announced that more than 1,000 civilians died between January and June 2009, 24 percent above the number for the same 6 months of 2008. The report faulted both sides of the conflict, which pits forces allied with the government of Afghanistan, including many thousands of NATO troops, against Taliban and other forces opposed to the government; however, it attributed the greater proportion of civilian deaths to the latter side.
The report provoked this comment from Navanethem Pillay (below right), the U.N. High Commissioner for Human Rights:

'All parties involved in this conflict should take all measures to protect civilians, and to ensure the independent investigation of all civilian casualties, as well as justice and remedies for the victims.'

Violence has been high among troops in Afghanistan as well: the just-ended month of July was the deadliest for U.S. troops since the war began in fall 2001. The Pentagon is said to be "preparing a new strategy that calls for major changes," among them "a vast increase in the size of Afghan security forces and an intensified military effort to root out corruption among local government officials," plus "an increase in American troops to implement the new strategy."
Meanwhile, in Iraq, U.S. troops now comprise "'coalition of one,'" down from the 37 countries who went with the United States to war against the regime of then-President Saddam Hussein. Bloodshed continues, although at a pace far slower than in the past, and U.S. military leaders look toward a political solution to problems in post-Saddam Iraq.
With that news in mind, here's the casualty count in the 5 weeks since our last post:

► Iraq Body Count reports that between 92,519 and 101,006 Iraqi women, children, and men have died in the conflict in Iraq since the U.S.-led invasion in March 2003, representing an increase of between 126 and 138 deaths in the last 5 weeks. According to the U.S. Defense Department, 4,328 American servicemembers have been killed in Iraq. Total coalition fatalities: 4,646 persons. That's 14 servicemember deaths in the last 5 weeks, all of them Americans.
► As for the conflict in Afghanistan, military casualties in Afghanistan stand at 763 Americans and 517 other coalition servicemembers. That's an increase of 51 and 31, respectively, in the last 5 weeks, and a total servicemember casualty count of 1,280.
Finally:
A moment in recognition of last month's passing of newsman Walter Cronkite (above left). The body count that he reported week after week during the Vietnam War made a lasting memory; indeed, it was the inspiration for this most sobering IntLawGrrls feature.

On July 2

On this day in ...
... 1839 (170 years ago today), more than 4 dozen persons held in slavery revolted 4 days after the ship transporting them, La Amistad, had set sail from Havana, Cuba. Leading the revolt was Sengbe Pieh, or Cinque, as he was called in the United States. A member of Africa's Mende people, he'd been seized and sold into slavery in West Africa in January of the same year. The ship would drift about the Atlantic until August, when, on arrival in New London, Connecticut, the ship, its remaining crew, and the rebellious slaves became the source of an epic legal dispute. As depicted in the film Amistad (1997), former U.S. President John Quincy Adams would argue on behalf of Cinque and comrades (above right) (image credit), resulting in the Supreme Court's favorable 1841 decision.
... 1976, 3 years after the departure of U.S. troops and 1 year after the fall of Saigon, the National Assembly of Vietnam met for the 1st time and officially reunified the country, naming it the Socialist Republic of Vietnam, establishing the capital at Hanoi, and adopting the flag at left. The aftermath, as described at this Belgian website:

Many people who supported the Saigon regime are sent to 're-education camps'. Over the next years more than one million of Vietnamese and ethnic Chinese ('boat people') flee the country.

(Prior July 2 posts are here and here.)

On May 7

On this day in ...
... 1954 (55 years ago today), Viet Minh troops overrun Dien Bien Phu, the capital of the northern Vietnam province of the same name. The victory marked the end not only of a nearly 2-month battle against French troops, but also of French colonial rule in Indochina. (credit for Agence France-Presse photo of Viet Minh troops raising flag after 1954 victory)
... 1984 (25 years ago today), at the U.S. District Court in Brooklyn, a "long-scheduled" class action trial was avoided when 7 manufacturers of Agent Orange agreed "to create a $180 million fund for thousands of Vietnam veterans and their families who said the herbicide had harmed them." Agent Orange-related medical problems continue to be addressed by U.S. veterans agencies, as is evident here. (credit for photo of U.S. helicopter spraying Agent Orange herbicide/defoliant over Mekong Delta jungle)

(Prior May 7 posts are here and here.)

On November 2

On this day in ...

... 1983 (20 years ago today), in a ceremony in the Rose Garden of the White House, with Coretta Scott King and civil rights leaders of many races attending, U.S. President Ronald Reagan signed legislation that established Martin Luther King Day. (photo credit) A decade earlier, Illinois legislator Harold Washington, who would become Chicago's 1st African-American mayor, had succeeded in making the day a state holiday in Illinois; however, efforts on the national level stalled for many years. Among those opposing the measure was U.S. Sen. John McCain (R-Ariz.), today the GOP nominee for President. As a result of the 1983 U.S. law, the 3d Monday in January now is the only holiday that honors an individual American.

... 1963 (45 years ago today), the military seized power in South Vietnam, killing President Ngo Dinh Diem (below right). Investigating the matter years later, the Church Committee, a mid-1970s congressional group that investigated CIA activities, concluded

that the United States government offered encouragement for the coup, but neither desired nor was involved in the assassinations. Rather, Diem's assassination appears to have been a spontaneous act by Vietnamese generals, engendered by anger at Diem for refusing to resign or put himself in the custody of the leaders of the coup.

On October 27

On this day in ...
... 1968 (40 years ago today), a month shy of her 90th birthday, Lise Meitner (right) died in Cambridge, England. The 3d of 8 children born into a Viennese family, Meitner surmounted "Austrian restrictions on female education" to enroll in 1901 at the University of Vienna, where she earned a doctorate in physics, then went to Berlin, where eventually she and a collaborator, Otto Hahn, "achieved important results in the new field of nuclear physics, competing with Irène Curie" and other scientists. The rise of Nazism forced Meitner to emigrate in 1938; this forced separation "led to the Nobel committee's failure to understand her part in the work" that she and Hahn did in the development of nuclear fission -- work for which he alone received the 1944 Nobel Prize in Chemistry. She has been otherwise recognized, however; as 1 example, the radioactive element Meitnerium (abbreviated Mt, No. 109 on the periodic table) was named after her. (photo credit)
... 1983 (25 years ago today), the U.N. General Assembly adopted a resolution demanding the retreating of all "foreign forces" from Cambodia (flag at left) -- a country then occupied by Vietnam.

Justice Delayed in the ECCC

(1st of a 2-part post, part of IntLawGrrls' ongoing Khmer Rouge Accountability series)

The case against the man at left -- Kaing Guek Eav, known as "Duch" -- was to be the first to go to trial before the Extraordinary Chambers in the Courts of Cambodia. Duch had been chief of the infamous torture center Tuol Sleng (a.k.a. S-21). (The photo below right is from the former prison, now a museum.)

The Co-Prosecutors’ July 18, 2007, Initial Submission had requested that Duch be indicted for the three core international crimes (war crimes, genocide, and crimes against humanity) as well as certain domestic crimes under the 1956 Penal Code, which was never abrogated by the Khmer Rouge and which forms part of the ECCC’s subject matter jurisdiction. (See IntLawGrrl Jaya Ramji-Nogales' post at the time here.) The ECCC’s Co-Investigating Judges indicted Duch on August 21, 2008, for war crimes (grave breaches of the 1949 Geneva Conventions) and crimes against humanity under principles of direct and accomplice liability. The Co-Investigating Judges justified indicting solely on the basis of international criminal law on the ground that the acts “must be accorded the highest available legal classification.”

On August 21, 2008, the Co-Prosecutors appealed the Indictment (contained in the Co-Investigating Judges' “Closing Order” ending the initial investigation), arguing that Duch should also have been charged with the domestic crimes of murder and torture and with the commission of all the charged crimes pursuant to a joint criminal enterprise, or JCE. Regrettably, the Co-Prosecutors did not appeal the rejection of the proposed genocide charges. In support of their appeal, the Co-Prosecutors argued that the Co-Investigating Judges have discretion with respect to findings of fact, but only limited discretion to determine the legal consequences of those facts. The prosecution also argued that an accused has the right to know in advance any theories of liability that will be pursued. In addition, the Co-Prosecutors argued that the decision of the Co-Investigating Judges divests the prosecution’s ability to utilize cumulative charging—which is generally allowed where crimes contain different material elements—in situations in which it is:

► unclear which crimes the evidence will ultimately prove; and

► desirable to fully account for the totality of an accused’s wrongdoing.

In light of the appeal, the ECCC has requested former International Criminal Tribunal Judge Antonio Cassese (left), in his capacity as Editor-in-Chief of the Journal of International Criminal Justice, to submit an amicus curiae brief on the evolution of the concept of the joint criminal enterprise as a mode of liability, with particular reference to the period 1975-1979.

This is shaping up to be a hot issue before the ECCC. Indeed, Ieng Sary, another more senior defendant, sought leave on September 15, 2008 to make submissions on the application of the joint criminal enterprise theory of liability in the Duch case. In his submission, Ieng Sary argued:

The application of JCE liability at the ECCC fundamentally affects Mr. IENG Sary because he is alleged to be part of the same “common criminal plan” as Duch. In these circumstances, Mr. IENG Sary has a clear interest in the outcome of the appeal and must be permitted to make submissions on this appeal.

The Pre-Trial Chamber, however, denied the right of intervention pursuant to the Court’s Internal Rules, which state that only the Co-Prosecutors, the accused, and civil parties have a right to be heard under these circumstances.

(Tune in tomorrow for Part 2, my analysis of these events.)

Obama: It's About Us...

(Warning: This post has very little to do with international law. Instead, it’s about all those people with tears in their eyes in living rooms, bars, classrooms, conference centers, and a big sports arena in Denver, Colorado, on Thursday night. It’s about the smile on my mom’s face (she doesn’t get to smile often enough) when she got a glimpse of Senator Barack Obama at a campaign event last winter... Or maybe it is about human rights after all.)

Then and Now
As a child of the 60s and 70s, I was constantly instilled with the belief that individuals or groups could change the world. The problems of the day were clear even to children — war, racism and apartheid, sexism, violence in streets and homes, political corruption, abuses against immigrants, and grinding poverty in urban centers and rural valleys.
But the sense that we could participate in broad social movements and thereby could DO something about these things was palpable. We had the optimistic expectation that grassroots action and organized political pressure on governments could result in real change.
This sense of commitment to social justice was both substantive and enmeshed in popular culture. People flashed peace signs and Black power salutes to strangers on the street. We called each other “sister” or “brother.”
Women marched for “liberation” and passage of the Equal Rights Amendment. Music and art called for cross-cultural and cross-gender respect and dialogue.
Young people joined the Peace Corps.
Civil rights laws were passed, a massive anti-war movement took place, and anti-poverty, early childhood education, and healthcare programs were organized. Mrs. Fannie Lou Hamer, Vice-Chair of the Mississippi Freedom Democratic Party (see photo left: courtesy of UBM.com), testified about state-sanctioned racism and violence at the Credentials Committee before the 1964 Democratic National Convention in Atlantic City, New Jersey. (Prior IntLawGrrls post here; click here for audio and text of speech). Congresswoman Shirley Chisholm spoke out in favor of the Equal Rights Amendment and ran for President (lower right). (Prior IntLawGrrls post here.)
Such efforts had their successes and failures, as have the movements that came before them. Since then, however, we’ve seen the Gulf War, the September 11 crimes against humanity, the Iraq War, the Rwanda genocide, “ethnic cleansing” in the violent disintegration of the former Yugoslavia, systematic rape and sexual violence in the Democratic Republic of Congo, the Darfur genocide, and other violent conflicts throughout the world.
We’ve seen governments fail to protect the economic and social rights of the poor, persons with disabilities, the elderly, and other marginalized groups among us on a daily basis, as well as during massive crises such as Hurricane Katrina and Cyclone Nargis in Burma. We’ve seen too many young men in prisons or hospital emergency rooms who should have been in high school classrooms.
Fundamental human rights are under attack. Over the last 8 years, the absolute legal prohibition on torture under international law and the international and domestic laws protecting privacy and due process have been put up for grabs.
So, instead of the urge toward social change, a sense of cynicism, helplessness, and despair began to pervade the atmosphere and our popular culture. That included those of us in the academy.

“Rock Star” or Leadership?
What many pundits missed from the beginning about Senator Barack Obama’s presidential campaign is that Americans need to believe that THEY can do something that matters again. All the remarks about “rock star” status and “Obamania” aside, it is that desire that primarily motivates the crowds to show up in Iowa and New York, Wisconsin, and Illinois, South Carolina, Oregon, and now, Colorado.
Charges of “elitism” ring hollow. If anything, Obama’s life story fits the classic American Dream narrative instead. African-American son of a white working-class single-mother and a Kenyan immigrant rises to attend Ivy League schools on scholarship and loans. He ends up vying for the presidency of the United States. Elitism involves looking down on, or mistreating, others because of class bias, not whether one did well at a high-profile university.
Of course, many are engaged by the senator’s individual charisma, intelligence, oratory, and political savvy. We tend to be an image-driven society after all.
But when I talk with young and older people who are committed to the campaign, it is apparent that they have a sense of relief and renewed energy. Even the young felt beaten down and silenced by immoral and illegal official policies, unreliable or superficial news coverage, fears about relatives and friends sent off for third deployments in an ill-conceived war, anger that Americans had become hated targets for some, and frustration that the promises of the American Dream are still largely unattainable for most poor, working-class people, and people of color.

“Yes We Can”
That is why, like some other crusty skeptics of my generation, I found myself in tears in front of my computer when I first saw the “Yes We Can” music video making the rounds on the internet (and about which IntLawGrrls posted here). Nice song, yes. Stylish images, yes. Famous young entertainers, yes (although I was sufficiently out of touch not to know who most of them are). And evocative of Martin Luther King Jr.’s great oratory. (IntLawGrrls posted video examples of Dr. King's speeches here and here.)
What was most moving, however, was the evidence that young people had been inspired to believe that THEY, in diverse coalitions, could help create social change. Everything was possible.

The End of Racism? Or A Step in the Right Direction?
The Iowa primary was another such moment. No matter what followed, the buzz on the phonelines and e-mails was that change is possible. Possible, despite pundits that said racism would always prevail in presidential elections. Possible, despite the ingrained belief that voters would never think outside traditional race, class, and gender demographic expectations.
Yet, neither Obama himself, nor the rest of us can believe that a single primary, nomination, or election victory signals the end of racism in the United States. There are some who prefer to believe this, I know. But every long-time activist is aware that the ascendancy of “firsts” are an important beginning, not the end. Real change is broad, deep, and complex.

History
Still, it is those historic and symbolic moments—Rev. Dr. King proclaiming his dream for America in Washington, DC, and his vision for an end to the war in Vietnam and an end to poverty at home (click here for audio of his “Beyond Vietnam — A Time to Break Silence” speech) and the Obamas’ potential to be the First Family of the United States — that inspire us all to keep working for change.

On June 11

On this day in ...
... 1963 (45 years ago today), a Buddhist monk burned himself to death in Vietnam, to protest the government of President Ngo Dinh Diem. Witnesses said the monk, Thich Quang Duc, got out of a car at a busy intersection in the capital city of Saigon, sat in the lotus position as 2 other monks poured gasoline on him, and then ignited the fire, which consumed him in minutes.
... 2005, in London, finance minister from the Group of 8 wealthiest countries agreed to write off $55 billion of the debt owed by 19 of the world's poorest countries. Much of the debt was owed to the World Bank, the International Monetary Fund, and the African Development Bank.