The Future of Human Rights in the Americas: Update on the Inter-American Reform Process

Today, on Human Rights Day, as we mark the 64th anniversary of the adoption of the Universal Declaration of Human Rights, the inter-American human rights system – guardian of the world’s first international human rights agreement – faces an unprecedented threat to its independence and authority.

The Inter-American Commission on Human Rights – which oversees implementation of the American Declaration of the Rights and Duties of Man, adopted in April, 1948, eight months prior to the Universal Declaration – is undergoing a state-initiated “reform” process that may lead to controversial changes in the Commission's practices and procedures, without the consent of the Commission.
As IntLawGrrl Alexandra Harrington posted in February, since it came into existence in 1960, the Inter-American Commission has promoted and protected human rights in the 35 member states of the Organization of American States. It does so through reporting, country visits, precautionary measures, and the individual complaints mechanism. The Commission's exercise of its functions has motivated criticism and objections in recent years from some states that disagreed with specific decisions – as have Ecuador, Bolivia, Brazil, and Peru – or accused it of bias – as has Venezuela.
In June of 2011, the OAS Permanent Council created a Special Working Group with a mandate to study the Commission’s work and propose any reforms deemed necessary. The Special Working Group’s proposals, which the OAS Permanent Council approved this past January, focused on both the Commission’s institutional practices and its substantive mandate.
Among the most controversial proposed reforms were those that would:
► Restrict the Commission’s discretion in deciding requests for precautionary measures,
► Significantly alter Chapter IV of the Commission’s Annual Report, in which it highlights countries with particularly troublesome human rights practices,
► Reduce the autonomy of the Special Rapporteur on Freedom of Expression, and
► Impose additional restrictions on the processing of individual complaints in ways that could favor states at the expense of victims.
Civil society has criticized the proposed reforms, and the reform process itself, as lacking in transparency and input from advocates and victims.
A joint statement coordinated by CEJIL, the Center for Justice and International Law, and signed by over 90 organizations, called on the OAS and its individual member states to ensure that the process is truly aimed at strengthening the inter-American system and includes the input of advocates and victims. Representatives of nongovernmental organizations, academia, and the judiciary have also signed on to the “Bogota Declaration,” which echoes this call.
A politically motivated, state-imposed reform of the Commission’s authority and procedures is a unique and pressing cause for concern to all those invested in the protection of human rights in the Americas.
In the words of the Commission's chair, José de Jesús Orozco:

Voting access & participation in Venezuela's indigenous & Afrodiasporic communities

(Part 3 of a 4-part series comparing voting in the United States and Venezuela, in light of the International Covenant on Civil and Political Rights. Part 1 is here; Part 2 is here; Part 4 is here.)

October 7, the general Election Day in Venezuela, falls on a Sunday. That day, in my capacity as an international election accompañamiento, or "accompaniment," I traveled to many sites in Venezuela. Specifically, I visited eleven precincts across the eastern state of Monagas, along with two domestic observers, a Swiss human rights advocate, a Brazilian professor of international law, and two journalists from Chile and Uruguay.
When we arrived at the remote indigenous Warao community of Mosú at 8:40 in the morning, we observed that 60% of the people in the community had already exercised their right to vote.

Our delegation spoke with Santo Garcia, the elected administrator of the indigenous school in the town of Mosú. Garcia stated:

'Every person who wants to exercise their vote has been able to do so…. As it says in the Constitution approved in 1999, every indigenous community needs to elect their representatives.'

No outsiders – other than the staff of Consejo Nacional Electoral, also known as the National Electoral Council or CNE, as well as officials, observers, and international accompaniers – were allowed to enter the community, under the local regulations regarding indigenous autonomy.
CNE is an independent, fourth branch of government. It derives from the power of the people as set forth in Articles 136 and 296 of the 1999 Venezuelan Constitution, and works affirmatively to create spaces for indigenous and afrodiasporic minority voters to exercise the franchise. (credit for photo by Uruguay Delegation, CNE Accompañamiento Internacional de las Elecciones del 7 de octubre, 2012, Comunidad Indigena Mosú, Caripito, Bolívar, Estado de Monagas, Venezuela)
Professor Esther G. Pineda (left), a sociologist at the Universidad Central de Venezuela, writes:

'In creating new electoral centers in remote communities that historically had been forgotten as afrodescendent and low-income communities, the initiatives of the Consejo Nacional Electoral (CNE) create a system that prioritizes security and confidence in the voters, as a massive investment in the education and formation of voters who respect the procedures to exercise the right to vote. This investment has clearly had a return, and a significant impact on reducing the numbers of abstentions and null votes. In a highly politicized and polarized society such as Venezuelan society, in which the population has become a part of the political process every day – this has become an evolving process in the participatory and active exercise of one’s citizenship.

(photo source)

'As a result, there has been a major consolidation of spaces for debate in a society in which diverse opinions and thoughts were formerly silenced; now afrodescendent men and women have the opportunity to express themselves and reflect on their own situation and experiences, specifically those which have resulted in the massive formulation of policy proposals and projects by and for diverse afrodescendent groups and communities.'

In my view, as an observer this autumn of both the U.S. and the Venezuelan elections, the clarity of the national standards, technical audits and accountability measures built into Venezuela’s electoral process stand in stark contrast to the lack of transparency and struggles with voter ID requirements and other forms of suppression in the United States.

CEDAW goes local in California – and beyond?

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

This year has seen a measure of "global to local" migration –  a development that I find satisfying, inter alia, in that it integrates international human rights law into domestic law.

Berkeley
The story in Berkeley began in July 2004, when the City Council adopted Resolution No.62,617, directing that the operative articles of Convention on the Elimination of All Forms of Discrimination against Women be made part of Berkeley Municipal Code, and urging ratification of CEDAW by the United States.
The request that the Council do so had originated in a resolution of the Peace & Justice Commission, on which I serve. The Peace & Justice Commission, one of Berkeley's 30-plus commissions, is made up of of citizen-volunteers who serve the city on a wide range of related issues.
Over the years following the Council's 2004 resolution, City departments continued analyses of various aspects –  including the authority, procedures, and budget – were the city to in fact adopt a new law.
The proposed ordinance came before the City Council for a second time on February 14, 2012, eight years after the initial resolution. It was noted in the February discussion that CEDAW had not yet been ratified by the U.S. government, and that the United States was one of only seven member states of the United Nations in that category.
Following further analysis of the resolution by the City Attorney's office, Ordinance 7,224-N.S. of 17 March 2012 added Chapter 13.20, "Adopting the Operative Principles of the United Nations Convention on the Elimination of All Forms of Discrimination against Women," to the Berkeley Municipal Code. The new Berkeley law:
► Serves to "promote equal access to and equity in health care, economic development, educational opportunities and employment for women"; and also
► Addresses "the continuing and critical problem of violence against women."

San Francisco
The Berkeley experience with CEDAW unabashedly benefits from the example set by the City and County of San Francisco.
Given that CEDAW had not been ratified by the U.S. government, the San Francisco Board of Supervisors took action on the need for legal safeguards on behalf of preventing and ending discrimination against women. The Board held an all-day hearing in October 1997. The resulting Resolution No. 1021-97, duly signed into law by then-Mayor Willie Brown on November 17, 1997, requires city departments to use a gender and human rights analysis to review city policy. Selected San Francisco departments review hiring, funding and service for compliance with the law. (attached below)

After-Effects
► An electronic message, with the 2012 Berkeley law attached, went to U.N. High Commissioner for Human Rights Navi Pillay. Commissioner Pillay sent hearty congratulations, and forwarded the information to the CEDAW Committee that receives reports from the 187 states parties to the Convention on the Elimination of All Forms of Discrimination against Women.
► U.S. Senators Dianne Feinstein and Barbara Boxer, and U.S. Representative Barbara Lee, whose congressional district includes Berkeley, sent letters of congratulations to the city.
► The Mayor's Office of Salt Lake City initiated a conference call with a member of the Berkeley Peace & Justice Commission and a member of the San Francisco Commission on the Status of Women, in order to fact-find details of the process.

678 on Egypt, women & harassment

(Look On! takes note of noteworthy productions)

SOMEWHERE IN THE SKY ABOVE RUSSIA – Recently I traveled to Tokyo to visit my family in Japan. Flying to and from London gave me a full day’s worth of movie-watching time. I brought some DVDs of my own and I asked myself pre-departure:

'Would there be any ‘human rights’ movies to watch on the airplane?'

A few years ago when working for Women’s Link Worldwide, I traveled to New York for a staff board meeting, and had been presently surprised to find the feminist courtroom classic Adam’s Rib (1949) as an option. This flight didn’t disappoint, either.

678, a 2010 Egyptian movie directed by Mohamed Diab, is a resounding indictment of patriarchal society and the pervasive culture of sexual harassment in Egypt. The movie, based roughly on a true story, interweaves the lives of three women:
► Nelly, the first woman to officially file a case of sexual harassment;
► A poor woman who begins to use violence to defend herself from ‘the lemon test’ on buses; and
► An educated woman who turns to activism after being sexually harassed at a football game and rejected by her husband.
The film skillfully deals with a range of issues, including maternal mortality, difference within feminism and solutions to combat sexual violence. At times, it left me bitterly angry at what women face, not only in Egyptian society, but in all societies.
In Japan, the metro stations are full of posters warning women about chikan, or groping, and women-only cars are used at rush hour. In countries all over the world, anti-harassment Hollaback! initiatives have begun with women reporting sexual violence on social networks and voicing their anger at some of the names they have been called. As demonstrated by Australian Prime Minister Julia Gillard in a recent speech that IntLawGrrls posted, women face sexism and sexist comments whether they are on the bus, walking down the street, or holding the highest office.
But the film is also uplifting.
Nelly, played by Nahed El Sebaï, refuses to cave into pressure to drop the lawsuit, and the man who harassed her receives 3 years' imprisonment. According to the movie, a year later a law against sexual harassment was enacted, although official reporting remains low.
In the film women are not punished for their bravery, either. Instead, the movie demonstrates how men and women can work together. Nelly’s boyfriend, Omar, supports her against his parents wishes.
The real losers in the story are the men who let their strong and beautiful wives and girlfriends down – either by abandoning them in their time of need or being caught for sexual harassment.
678 is a brave film. It is highly recommended.

(Cross-posted at Human Rights Film Diary blog)

“She makes me ashamed to be a woman”: ICTR's genocide conviction of Pauline Nyiramasuhuko

(My thanks for the opportunity to contribute this guest post, which forms Part 2 of a 2-part IntLawGrrls series on women accused of international crimes. Part 1 is here.)

Much of the literature on gender and conflict focuses, appropriately, on women as victims of violence. Women, however, may also act as agents of violence, including mass atrocity, during conflict situations.
A paper I am writing explores this latter reality through the conviction of Pauline Nyiramasuhuko, Rwanda’s former Minister of Family and Women’s Development. Trial Chamber II of the International Criminal Tribunal for Rwanda sentenced Nyiramasuhuko (above, center) to life imprisonment on June 24, 2011. (credit) At the time of her conviction, she was 65 years old.
I first prepared this paper for a fantastic conference on Gendering Conflict and Post-Conflict Terrains that IntLawGrrls contributors Fionnuala Ní Aoláin, Naomi Cahn and Dina Haynes organized at the University of Minnesota Law School this past May. Drawing from wonderful feedback generated at the conference, the paper was updated. Now available at SSRN, the paper, entitled "'She makes me ashamed to be a woman': The Genocide Conviction of Pauline Nyiramasuhuko, 2011," will appear in the Michigan Journal of International Law next year.
Nyiramasuhuko was prosecuted jointly with five other defendants, including her son, Arsène Shalom Ntahobali (who also was given a life sentence). All the defendants were from Butare, a préfecture in southern Rwanda. The defendants became colloquially known as the “Butare Group” or the “Butare Six.” The other four defendants received sentences of 25 years, 30 years, 35 years, and life.
Nyiramasuhuko is the ICTR’s only female accused. She is, moreover, the only woman tried and convicted by an international criminal tribunal for genocide, and the only woman tried and convicted by an international criminal tribunal for rape as a crime against humanity.

The only other woman convicted by a post-Cold War international criminal tribunal (the International Criminal Tribunal for the former Yugoslavia) is Biljana Plavšić (right). A leading Bosnian Serb politician with de facto control and authority over members of the Bosnian Serb armed forces, Plavšić pleaded guilty in 2002 to one count of persecution (crimes against humanity). She was sentenced in 2003 to eleven years’ imprisonment.
Each of the Butare Six defendants has appealed the convictions. Appeal proceedings are underway. It is anticipated that the ICTR will complete all its work by December 31, 2014, though no concrete time line has been established in the Butare Six case.
My article explores the intersections between gender and justice in the strategies of participants in the proceedings against Nyiramasuhuko and, more tellingly, in public portrayals thereof.
The judgment itself, 1,500 pages in length and available here, is gender-neutral in terms of its depiction of Nyiramasuhuko. She is presented as a perpetrator indifferently from her male co-perpetrators.
Public portrayals of Nyiramasuhuko, in contrast, exude problematic essentialisms, stereotypes, and imagery of women and mothers. These caricatures emerge at two distinct levels:
► First, they are invoked by the media to sensationalize and spectacularize the trial itself – in short, to titillate.
► Second, they are instrumentally invoked to favor strategic operational outcomes.

On November 20

On this day in ...
... 1994, in the capital of neighboring Zambia, representatives of Angolan government and rebel forces signed a cease-fire known as the Lusaka Protocol. But as explained in this Human Rights Watch account,

(credit)

'Significantly, UNITA leader Jonas Savimbi refused to sign the agreement in person, ensuring that President dos Santos could not either, leaving it to subordinates to endorse the accord, a sign of continued lack of confidence in the peace process.' 

Violations of the truce occurred thereafter, and the Angolan Civil War would not come to an end until 2002.

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

On November 14

On this day in ...
... 1904, born in Minneapolis, Minnesota, was a granddaughter of the founder of the Pillsbury Flour Mills Co. A couple years after graduating Phi Beta Kappa from Smith College, where she majored in French, she married a textile manufacturer named Oswald Bates Lord. Living with her husband and sons (one, Winston Lord, would become a U.S. Ambassador), Mary Pillsbury Lord (left) threw herself into volunteer work. In World War II, she toured Army installations throughout the world in her capacity as chair of the National Civilian Advisory Committee of the Women's Army Corps. In 1947, she organized and chaired the U.S. Committee for UNICEF, and in 1953, by appointment of President Dwight D.  Eisenhower, for whom she'd campaigned, Lord succeeded Eleanor Roosevelt as the U.S. representative to the U.N. Human Rights Commission. Later she was appointed a U.S. representative to the U.N. General Assembly. After completing that post, she continued to be active in international affairs until her death in 1978. A year after, she was honored posthumously with the Freedom Award of the International Rescue Committee, which she had served as president. Her papers are available here and here.

(Prior November 14 posts are here, here, here, here, and here.)

On November 1

On this day in ...
... 2005, the appointment of Susan Maree Crennan to the High Court of Australia took effect. The headline in the Melbourne-based Age newspaper proclaimed:

'A Victorian woman has become just the second female judge appointed to the High Court.'

The adjective referred to Crennan's location, in the Australian state of Victoria, for which Melbourne is the capital.  At the time Crennan (prior IntLawGrrls posts) was a judge on the Federal Court of Australia. Appointed Queen's Counsel in 1989, she'd also served inter alia as President of the Australian Bar Association and as a Commissioner for Human Rights. The only other woman ever to have served, from 1987 to 2003, had been Mary Genevieve Gaudron. Today 3 women serve on the country's High Court – Crennan, Susan Mary Kiefel, and Virginia Margaret Bell.

(Prior November 1 are here, here, here, here, and here.)

Work On! ICRC/Berkeley workshop for law students

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

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

Teaching Feminist Approaches

(Today IntLawGrrl Diane Marie Amann contributes to our October series celebrating "Feminist Approaches to International Law")

The first words uttered were not encouraging:

'Any time I see Catharine MacKinnon's name in an article, I know I'm not going to like it.'

So declared one of the twelve members of the first seminar I ever led, International Criminal Law, in Fall 1996. As sometimes happens in this course, students were divided almost evenly between human rights activists, mostly women, and military history buffs, mostly men. The declarant was in the latter camp. Prompting his declaration was the following quotation, drawn from a 1987 book by the University of Michigan law professor:

Catharine MacKinnon, 1995

'And Catharine MacKinnon argues: "For women to affirm difference, when difference means dominance, as it does with gender, means to affirm the qualities and characteristics of powerlessness."'

As many readers will recognize, the passage occurs early in "Feminist Approaches to International Law," written by Hilary Charlesworth, Christine Chinkin, and Shelley Wright. The article had been published five years before our seminar, in the October 1991 issue of the American Journal of International Law. It examined international law through a multifaceted feminist lens, discussing inter alia:
► Difference in voices of women and others whom tradition had deemed subordinate;
► Data that demonstrated that men overwhelmingly held the important positions; and
► A masculine normative structure that worked to exclude issues of foremost importance to women from the scope of international legal regulation.
Having found in the article much food for thought, I assigned it for our seminar session entitled "Sexual Offenses As International Crimes." My goal was to use issues raised to lay a foundation for studying how sexual violence had come to be prosecuted in the ad hoc tribunals for Rwanda and for the former Yugoslavia. (Evincing the novelty of this development, "Feminist Approaches" was the oldest reading assigned for that day. Others included a 1994 article by Kathleen M. Pratt and Laurel E. Fletcher, a 1996 news story by Marlise Simons of the The New York Times, circa-1992 Yugoslavia tribunal texts, and the 1996 debate respecting witness protection.)
My student's declaration, however, did not bode well for this goal. His categorical rejection risked polarizing the class, and so blocking the hoped-for discussion of the evolution of international jurists' approach to accountability for sexual crimes committed amid armed conflict.
I am pleased to report that reason won out.

Feminist Approaches: A voyage of rediscovery

(Today IntLawGrrl Doris Buss contributes to our series celebrating "Feminist Approaches to International Law")

In preparation for this celebration of Hilary Charlesworth, Christine Chinkin and Shelley Wright’s Feminist Approaches to International Law, I unearthed my old paper copy of the article, which I had read and re-read, and read again, when I first encountered it as an LL.M. student at the University of British Columbia in the early 1990s.

These days, with digital libraries, I rarely read a hard copy of anything, let alone a journal article. So dusting off my copy of CCW, as I referred to it over the years, made me feel a bit like an archivist, finding an ancient but highly valuable scroll. And inside the scroll, I found some lost (to me, at least) insights about feminist method and feminist politics. Re-reading CCW has been a voyage of re-discovery.
My copy of Feminist Approaches, pictured above, is dog-eared, marked up and photocopied so many times the print is barley legible. Flipping through this manuscript in the twenty-first century, the archivist in me finds multiple traces of late 20th century reading techniques: ‘highlighting’ in different Day-Glo shades of yellow and orange, comments scrawled in the margins, and eventually, the addition of yellow post-it notes, also now dog-eared. (I would like to disown these marginalia – and the misunderstandings they evidence – but, sadly, I detect traces of my own handwriting.)
Without wanting to over-play the metaphor ‘artifact’ (and the painful admission of aging it suggests), one can read Feminist Approaches as a bit like an ancient scroll whose prophecies and treasure maps continue to offer a way to view the present and future.
The first few paragraphs of Feminist Approaches make it clear that CCW were mapping a richly conceptual engagement with feminist analysis which the authors, quoting University of Washington political scientist Nancy Hartsock (below left), defined at pp. 613-14 as

'a method for approaching life and politics, a way of asking questions and searching for answers, rather than a set of political conclusions about the oppression of women.'

Feminist Approaches outlined a set of directions, and some future possibilities (‘prophecies’ is perhaps a bit of a stretch) about the difference feminist method could make to international law.
CCW suggested that:
► International law – its “organizational and normative” structures (p. 614) – was gendered male;
► Seemingly neutral concepts like the ‘state’, when examined more closely, would be revealed as thoroughly gendered, premised on a conception of the world that reflected the lives of (certain) men; and
► With more digging, international law’s silences – the many ways in which women and women’s interests were absent or marginalized from the discipline and practice of international law – could be excavated. CCW wrote in Feminist Approaches (p. 615):

'By taking women seriously and describing the silences and fundamentally skewed nature of international law, feminist theory can identify possibilities for change.'

And, indeed, change has happened in international law and practice since CCW wrote Feminist Approaches.
Many of the discipline’s silences about women are being revealed and challenged. Less successful but still important, the conceptual boundaries of the discipline have been explored and contested, and some have even shifted in response to, for example, the involvement of civil society actors in international matters. Women scholars, lawyers, activists and decision-makers are now more visible in international institutions than was the case in 1991. Clearly, ‘change’ has happened – and not happened – in a vast number of ways.
But in the space of all that change, CCW’s arguments for and use of feminist method remain as compelling and illuminating as they were over twenty years ago.

In search of limits for the Alien Tort Statute

Supreme Court Grand Chamber

In the reargument of Kiobel this week, the justices of the U.S. Supreme Court seemed to be searching for a way to limit the scope of the Alien Tort Statute.
As detailed in previous IntLawGrrls posts, Kiobel v. Royal Dutch Shell involves claims that Shell aided and abetted the Nigerian government’s commission of crimes against humanity in connection with suppressing opposition to Shell’s oil extraction operations. The plaintiffs, who received asylum in the United States and currently reside here, filed the lawsuit in federal court in New York.
The U.S. Court of Appeals for the Second Circuit held on appeal that the suit should be dismissed because a corporation (as opposed to a natural person) could not be sued under the ATS. The Supreme Court originally granted certiorari on the question of corporate liability. Shortly after the oral argument on that question in February of this year, the Court set the case down for reargument this fall, with the addition of a question on the broader question of whether the ATS applied to conduct outside the territory of the United States.
Many thought that the answer to that question was implicit in the Court’s decision in 2004 in Sosa v. Alvarez-Machain, in which the Court seemingly endorsed the line of cases that began in the 1980s with the Second Circuit’s decision in Filártiga v. Peña-Irala. Filártiga had allowed an ATS suit to go forward, against a former Paraguayan police officer living in the United States, for the torture and murder of the plaintiffs’ relative in Paraguay. The relevant portions of Sosa were joined by a 6-to-3 majority of the Court (including Justice Anthony M. Kennedy, a crucial swing vote).

Justice Kagan

The issue of the presumption against extraterritorial application of statutes was explicitly argued in the Sosa case, including in the brief of the U.S. government. Nevertheless, the Court in Sosa did not adopt that line of reasoning.
To the contrary, as Justice Elena Kagan noted in her questions during the argument this past Monday, the opinion in Sosa quotes from the Filártiga court’s declaration that

'for purposes of civil liability, the torturer has become like the pirate and slave trader before him ... an enemy of all mankind.'

Echoing this line of reasoning, Justice Stephen G. Breyer asked in this week’s argument,

Justice Breyer

'[T]he question to me is who are today's pirates. And if Hitler isn't a pirate, who is? And if, in fact, an equivalent torturer or dictator who wants to destroy an entire race in his own country is not the equivalent of today's pirate, who is?'

Some observers speculated that the Court was eager to find another ground for decision, feeling that this suit seemed a bridge too far in its attenuated connection to the United States (while the plaintiffs are resident here, the defendants are U.K. and Dutch corporations, and the conduct occurred in Nigeria), yet also feeling was reluctant to rule for Shell on the corporate liability question. That presumed reluctance would be due to the unspoken shadow of the Court's decision in Citizens United v. FEC (2010). Here's the question that ruling suggested in the context of Kiobel:

If corporations are “persons” who have First Amendment rights to spend money on political campaigns, how can it be that they are not “persons” who can be sued for committing torture and genocide?

While the issues are legally distinguishable, they might not be so received by the general public. (In fact, the cab driver who drove me away from the Court on the day of the first Kiobel argument – which I attended as co-counsel in a companion case that has since been dismissed, Mohamad v. Palestinian Authority – brought up the Citizens United analogy when he learned what the question presented in Kiobel was.)
Other, less cynical observers noted that the extraterritoriality issue had been aggressively briefed by some of the amici, and that several newer members of the Court might be eager to revisit the basic holding of Sosa.
During this week's reargument (full transcript available here):
► Shell’s lawyer, Kathleen Sullivan, argued for a categorical rule against any extraterritorial application of the ATS – a rule that would exclude Filártiga and other cases like it.
► Paul Hoffman, for the plaintiffs, argued against such a categorical rule, but emphasized the other ways – not currently before the Court – in which ATS actions could be limited, including doctrines such as personal jurisdiction, forum non conveniens, political question, and exhaustion.
► Solicitor General Donald Verrilli, arguing for the U.S. government, offered a confusing compromise solution. The government’s position seemed to boil down to an argument that Filártiga itself should remain good law, because we don’t want the United States to become a safe haven for individual torturers. But the Kiobel suit should not be allowed, this argument continued, because it involved (1) a foreign corporation (2) aiding and abetting (3) a foreign government (4) in the latter's territory. It was not at all clear which of these conditions would be either necessary or sufficient to the outcome.
The government refused to say how any other case – including past cases such as the Marcos case – should come out. This seemed to frustrate some on the bench.
Still other justices seemed frustrated by the government’s inconsistent positions on ATS suits.

Justice Scalia

The government had filed in favor of the Kiobel plaintiffs on the corporate liability issue, and had previously taken a more categorical position against extraterritoriality in Sosa. Justice Antonin Scalia went so far as to ask why the government should receive any deference at all in its articulation of the nation’s foreign policy interests. (From a separation of powers perspective, Scalia’s approach was somewhat shocking; isn’t the fact that the executive branch is elected and may change its position in light of elections precisely why the unelected judiciary is supposed to be deferential to it in matters of statutory interpretation, particularly on matters such as foreign policy where the executive has comparatively greater expertise?)
► Shell’s lawyer, Sullivan, suggested that applying a blanket rule against extraterritorial application of the ATS would be a “democracy-forcing device” to send the issue back to Congress. But Sullivan’s argument gets basic principles of statutory interpretation exactly backwards.
The principle of stare decisis applies particularly strongly in cases of statutory interpretation precisely because the legislature can change statutes that it believes the Court has wrongly interpreted. Eight years have passed since the Court interpreted the ATS to allow suits based on extraterritorial conduct in Sosa, and there is no shortage of corporate lobbyists who have pressed their woo on Congress since then. And yet Congress has left the ATS intact, apparently agreeing with the U.S. government’s current position that providing accountability for human rights abusers is consistent with U.S. foreign policy interests.
► As Hoffman noted, there are a million ways that ATS plaintiffs can and do lose, even when they have suffered grievous wrongs.
In this case, the defendants apparently failed timely to raise and pursue issues such as personal jurisdiction, forum non conveniens, political question doctrine, and exhaustion, choosing to emphasize other arguments instead. (Actually, Shell also failed to raise both the corporate liability and the extraterritoriality questions in a timely fashion – both were brought up for the first time on appeal.) Shell can clearly afford a good lawyer when it wants one, and its poor lawyering in the district court should not be rewarded with a massive and unjustified victory on appeal.

Joint session of Congress

Reasonable judicial modesty suggests that Sosa should not be overturned. If the members of Congress want to change the law to protect corporations who do business here while aiding and abetting torture in foreign lands, let’s at least make them vote for that on the record.
Isn’t that how democracy works?

On October 4

On this day in  ...
... 1949, U.S. immigration authorities barred Margaret Fairley (left) and her husband, Professor Barker Fairley, a Goethe expert based at the University of Toronto, from entering the United States. He had been invited to lecture at Bryn Mawr, a Pennsylvania women's college founded in 1885 – coincidentally, the year of Margaret's birth in England. The ban followed an incident in March of the same year, when the couple were detained in New York, where they were attending the Cultural and Scientific Conference for World Peace – according to The New York Times, following that detention, Margaret Fairley was "ordered out of the country at once." She'd been born Margaret Keeling in England, and was educated at Oxford, "finishing with a “first” in English though denied her degree because she was a woman." She moved to the University of Alberta, Canada, which permitted her to complete her degree. By 1913, she was that university's dean of women; she resigned to marry and move to Toronto. (credit for painting by Frederick Varley) While living for part of the 1930s back in England, according to the University of Toronto website,

'Margaret fell in with Marxist activists and when the family, missing Canada, returned in 1936, she joined the Communist party here and remained a member until she died.'

In the course of her life – she died in 1968 – she was a teacher, a campaigner for women's, social, and human rights, and an editor of the magazine New Frontiers, published by Canada's Labour-Progressive Party. Margaret Fairley, who is commemorated by a statue in a small park near the University of Toronto, edited 2 books, The Spirit of Canadian Democracy (1946) and Selected Writings of William Lyon Mackenzie (1960). She was also the maternal grandmother of our colleague William A. Schabas, and an inspiration to him, as he wrote in a touching post this past International Women's Day.

(Prior October 4 posts here, here, here, here, and here.)

On September 30

On this day in ...
... 2011, the United States killed 2 Americans by drone strike in north Yemen. As then posted, the 2, who were among several al-Qaeda-linked men traveling in a car when struck, were Anwar al-Awlaki, 40, a cleric whom the United States had long sought (and whom President Barack Obama said "had taken 'the lead role in planning and directing the efforts to murder innocent Americans'"), and Samir Kahn, 25, the editor of an online magazine maintained by al-Qaeda. Media attention was concentrated on account of the nationality of the 2, and so sparked a new round of debate regarding the U.S. policy respecting the drone aircraft (example picture above left), about which we've frequently posted. And see this report on civilians and drones, a just-released joint project of the Stanford International Human Rights and Conflict Resolution Clinic and the Global Justice Clinic at New York University School of Law. (photo credit)

(Prior September 30 posts are here, here, here, here, and here.)

Welcoming Mónica Roa

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

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

Heartfelt welcome!

Report from U.N. meeting on Somali piracy

On September 17-18, 2012, I had the opportunity to attend the 11th meeting of the U.N. Contact Group on Piracy off the Coast of Somalia, Working Group 2, in Copenhagen, Denmark. Professor Michael Scharf of Case Western Reserve University Law School and I, in our capacity as independent academics as well as members of the Public International Law and Policy Group, Piracy Working Group, were invited to give a presentation at the Working Group 2 meeting. (We're pictured above left, and below with Ambassador Thomas Winkler, the Chair of Working Group 2.)
Our topic was juvenile pirates – the treatment of detained juvenile pirates by the capturing and/or prosecuting state, as well as the need to aggressively detain and prosecute those who recruit juvenile pirates. Our brief presentation was followed by an intense question-and-answer session, during which we attempted to answer many provocative inquiries addressed at us by the delegations of more than 50 states represented at this meeting.
It was our recommendation that juvenile pirates should not be caught and released, but that instead they should be prosecuted under special circumstances, taking into account their age as well as the possibility to retrain, re-educate and rehabilitate them.  If juvenile pirates are released, they should not be simply "dumped" on the shore of Somalia; instead, every effort should be made to contact their family members for the purpose of reuniting them.
It was also our recommendation that those who affirmatively recruit juvenile pirates should be treated more harshly: for example, that the use of juvenile pirates would be an aggravating factor in sentencing. Another innovative approach would be to argue that the use of juvenile pirates is a crime against humanity, citing international criminal tribunal precedents in which the accused were convicted of of child-soldier recruitment.
In addition to our presentation on the issue of juvenile pirates, Working Group 2 members discussed several other important topics. The meeting started with updates by member states on any developments regarding their own experiences in combating Somali piracy in the last six months. Some such notable developments include:
►the first-ever post-conviction transfer of Somali pirates, convicted in the national courts of the Seychelles, to Somaliland, where they will serve their entire sentences;
►the first-ever extradition of detained pirates from the Seychelles to the Netherlands for the purposes of prosecution in the Netherlands;
►the signing of transfer agreements between Mauritius and several maritime nations, whereby Somali pirates captured by the latter will be transferred to Mauritius for prosecution in this country’s national courts;
►the update by Kenya that a long-awaited appellate judgment, which could effectively restart piracy trials in Mombasa, will be rendered at the end of September.
Working Group 2 members then discussed various human rights considerations linked to the detention and possible prosecution of suspected Somali pirates.

On September 16

On this day in ...

... 1982 (30 years ago today), the BBC published reports that in the midst of civil war in Lebanon, over a thousand Palestinian refugees had been "been killed during a 24-hour rampage by Lebanese militia in West Beirut" (map credit), at the Sabra and Shatila refugee camps. Links between that Christian Phalangist militia and the Israeli government prompted a judicial inquiry in Israel; the inquiry's report led to the 1983 resignation of Ariel Sharon, then Minister of Defense (though he'd be elected Prime Minister in 2001, and would serve till a 2006 stroke, which incapacitates him to this day). Efforts by survivors to sue extraterritorially on allegations of crimes against humanity failed, as detailed by IntLawGrrls contributor Deena Hurwitz in her "Universal Jurisdiction and the Dilemmas of International Criminal Justice: The Sabra and Shatila Case in Belgium," published as a chapter in Human Rights Advocacy Stories (2009), which Deena edited along with colleagues Margaret L. Satterthwaite and Doug Ford.

(Prior September 16 posts are here, here, here, here, and here.)

On September 12

On this day in ...
... 1977 (35 years ago today),in South Africa, as The New York Times' John F. Burns wrote: "Steven Biko, probably the most influential young black leader in South Africa, died while in police detention," an event that, Burns reported, stirred "fears that his death could increase racial tension." According to the BBC, more than 15,000 persons attended his funeral.  It was eventually revealed that Biko, 30, had died not from a hunger strike, as authorities had claimed, but from severe brain damage inflicted during interrogation. Indeed, Biko's death became a rallying point in the movement that led, nearly 2 decades later, to the election of Nelson Mandela as President of a new, anti-apartheid South Africa. Among the accounts of Biko's life and death is newpaper editor Donald Woods' Biko (1978) (above left). It is one of the books that awakened this 'Grrl to the issue of international human rights. (In a post above, IntLawGrrl Stephanie Farrior also pays tribute to Biko.)

(Prior September 12 posts are here, here, here, here,  and here.)

Welcoming Yael Vias

It's our great pleasure to welcome Yael Vias Gvirsman (left) as an IntLawGrrls contributor.
Yael is a lawyer, having been admitted to the Israeli Bar Association in 2006. She has a law degree from Strasbourg University in France, and also studied international law, including international criminal law and international human rights, at Utrecht University, in 2001-2002. Yael holds a master's degree in international relations, diplomacy, and conflict from Auvergne University.
She practices international criminal law, and is currently working on 2 defense teams – of Callixte Mbarushimana at the International Criminal Courtl and of Charles Taylor at the Special Court for Sierra Leone. She lives in The Hague with her husband and baby daughter.
Yael is a Ph.D. candidate at Hebrew University of Jerusalem, studying international criminal law as a form of intervention in conflict. Yael is a co-founder and has been an Executive Board Member of ALMA, the Association for the Promotion of International Humanitarian Law since its creation in 2010.
Her past experience includes research positions with the Hebrew University, Prosecutor at the State Attorney’s office and Legal/Eligibility Officer with UN High Commissioner for Refugees in Tel Aviv. Yael trained at the Ministry of Foreign Affairs, the International Criminal Tribunal for Rwanda and the UN Office for the Coordination of Humanitarian Affairs in New York.
Her introductory post below discusses the film, One Day in September, about the killing, 40 years ago this month, of eleven Israeli athletes at the 1972 Olympic Games.

Hannah Szenes

Yael dedicates her post today to Hannah Szenes. Hungary-born Szenes – about whom Yael promises a future blog post – was among dozens of Jewish persons who parachuted into Yugoslavia to try to liberate persons in transit to Auschwitz. Szenes eventually was arrested, convicted of treason, and executed by firing squad in 1944, at age 23. Today Szenes joins other inspiring women on IntLawGrrls' foremothers' page.
Heartfelt welcome!

On September 8

On this day in ...

... 1951, delegates from 4 dozen countries signed the Treaty of Peace with Japan, also known as the San Francisco Peace Treaty in recognition of the city where it was signed. (credit for photo of Japanese Prime Minister Shigeru Yoshida signing at the War Memorial Opera House, as members of his delegation look on) The treaty began with Japan's promise "to apply for membership in the United Nations and in all circumstances to conform to the principles of the Charter of the United Nations," signed in the same city 6 years earlier, and further "to strive to realize the objectives of the Universal Declaration of Human Rights" that states then members of the U.N. General Assembly approved in 1948. The treaty brought to a formal end the Pacific Rim aspect of World War II. It marked too the start of a new, cooperative relationship between, in particular, Japan and the United States.

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