IntLawGrrls

Verdict in Haiti prison massacre case

noreply@blogger.com (Amy Senier) — Fri, 27 Jan 2012 12:20:00 +0000

A national judge sentenced 8 members of Haiti's national police force to some of the very same conditions over which they once reigned.

Last week's verdict and sentence arose from the officers' involvement in the 2010 prison massacre in Les Cayes.
In the chaos immediately following the January 12, 2010, earthquake, detainees in the Les Cayes prison – out of fear of returning to the inside the building – tried to sleep in the prison's courtyard. The prison's warden, Sylvestre Larack, refused to let them stay, triggering a rebellion that was quelled by excessive force, in the opinion of an independent commission that examined the event.
When detainees tried to escape the facility shortly thereafter, guards responded with a hail of gunfire and tear gas that left between 12 and 15 persons dead. Some of the victims, all of whom were unarmed, had been shot in the head or beaten to death. In the wake of the massacre, prison guards denied wounded inmates medical care and hid and rearranged bodies to mask their crimes.
Larack himself, as well as the chief of Haiti's antiriot police, Olritch Beaubrun, were accused of having participated in the killings.
The verdict and sentences cap a trial that was seen as a test of Haiti's fragile judicial system, which has long been regarded as promoting impunity for human rights abuses committed by state actors.
During the three months of trial, participants faced numerous challenges, including attempts to intimidate the presiding judge and a malfunctioning generator, which plunged the proceedings into darkness. Nonetheless, 2 years after the Les Cayes massacre, Judge Ezekiel Vaval sentenced 8 of the 14 officers accused of participating in the killings to terms of imprisonment and hard labor, ranging from 2 to 13 years. Larack was sentenced to 7 years, and Beauburn received 13.
While neither of these sentences reflects the state prosecutor's request for life imprisonment, Florence Élie (right), Director of Haiti's Office de Protection du Citoyen, speculated that the judge hoped to avoid longterm acrimony between between the judiciary and the police. (photo credit)
Moreover, the mere conclusion of the trial is being seen as a victory of sorts for the Haitian justice system. According to one defense attorney, "the fact that we had a verdict at all is a big deal for Haiti."
The proceedings might also shed renewed light on conditions in Haiti's prisons, which have long been regarded as among the worst in the world on account of extreme overcrowding, limitless pretrial detention, and nonexistent medical care. Several human rights groups have denounced such conditions as "cruel, inhumane and degrading treatment."

Go On! Buergenthal @ ASIL

noreply@blogger.com (Diane Marie Amann) — Fri, 27 Jan 2012 10:00:00 +0000

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

As part of its "leading figures in international dispute resolution series," the International Courts and Tribunals Interest Group of the American Society of International L aw will host Thomas Buergenthal (left), who has served inter alia on the International Court of Justice (2000-10) and the Inter-American Court of Human Rights (1979-91), and who has returned to the law faculty at George Washington School of Law, where he is the Lobingier Professor of Comparative Law and Jurisprudence. (photo credit) Buergenthal will be available for a Q&A session to discuss his work and the work of the ICJ and then take questions.
The event will take place from 6 to 7:30 p.m. next Thursday, February 2, at Tillar House, ASIL headquarters at 2223 Massachusetts Avenue, N.W., Washington D.C. A reception will follow.
Register for the event, which is free to ASIL members, here.

On January 27

noreply@blogger.com (Diane Marie Amann) — Fri, 27 Jan 2012 08:04:00 +0000

On this day in ...
... 1977 (35 years ago today), as the United Press International wire service reported from Rome,

The Vatican, affirming the refusal of the Roman Catholic Church to ordain women as priests, said today that they could not qualify because Jesus was a man and His representatives on earth must have a 'natural resemblance' to him.

The 18-page statement relied on an assertion by a 13th C. pope, to the effect that the Virgin Mary surpassed all Apostles yet was denied the keys to heaven given those men. To this day, women remain excluded from the Catholic priesthood, although according to a recent announcement, a limited number of male Episcopal priests married to women will be allowed to do so.

(Prior January 27 posts are here, here, here, and here.)

Quick Cambodia Update

noreply@blogger.com (Beth Van Schaack) — Thu, 26 Jan 2012 21:15:00 +0000

David Scheffer, newly appointed special envoy to Extraordinary Chambers in the Courts of Cambodia (ECCC) by the United Nations (as we reported here) has hit the ground running. Further to our posts (here, here and here) about the impasse at the ECCC over the appointment of reserve Co-Investigating Judge, Laurent Kasper-Ansermet of Switzerland, Scheffer, who traveled to Phnom Penh this week on behalf of the United Nations, has announced that there is no impediment to the Swiss jurist assuming his position and carrying out his functions as Co-Investigating Judge. The Supreme Council of Magistracy had delayed "confirming" Kasper-Ansermet's appointment, apparently on the grounds that he was "unsuitable." The grounds: he had used his Twitter account to discuss the debate over the propriety of pursuing Cases 003 and 004. Scheffer in his remarks also encouraged Kasper-Ansermet to build "credible" case files with respect to the controversial Cases 003 and 004.
In other news, Case 002 involving the surviving regime leaders, continues. Coverage is available on the ECCC's website as well as the Cambodia Trial Monitor. The tribunal recentlyheard testimony from Peoudara Vanthan ("Dara"), deputy director of the Documentation Center of Cambodia (DC-Cam). The defendants have attacked the neutrality of DC-Cam, arguing that its vast documentary holdings should be viewed with suspicion. The questioning seemed to suggest that the Center was prejudiced against the accused and had organized its holdings to facilitate the defendants' prosecution. There were also questions challenging the provenance and subsequent chain of custody of many of the documents, which are decades old.

Introducing Hilde Coffé

noreply@blogger.com (Diane Marie Amann) — Thu, 26 Jan 2012 11:15:00 +0000

It's our great pleasure to introduce Dr. Hilde Coffé (left) as an IntLawGrrls contributor.
At the beginning of next month, Hilde will take up a permanent appointment as a Senior Lecturer at the Department of Political Science and International Relations at Victoria University in Wellington, New Zealand.
She joins the Victoria faculty following a number of years as an assistant professor of sociology at Utrecht University in the Netherlands. She's also been a visiting professor in in the Department of Political Science and Japanese Studies at Martin-Luther-University in Halle-Wittenberg, Germany.
In 2004 Hilde earned her Ph.D. in Social Science from the Vrije Universiteit Brussel in Belgium, having completed a dissertation entitled Groot in Vlaanderen, klein(er) in Wallonië. Een analyse van het electorale succes van de extreem-rechtse partijen / Large in Flanders, small(er) in Wallonia. An analysis of the different success of the extreme right parties in Belgium. (See items about this research here and here.)
She also holds bachelor's and master's degrees from the Vrije Universiteit Brussel, where she was a postdoctoral researcher from 2004 to 2006.
Hilde's research focuses on political participation and representation, partisan politics, and civic and political attitudes. In that vein is her introductory post below, which discusses "Conceptions of Female Political Representation: Perspectives of Rwandan Female Representatives," a paper she presented at a meeting of the American Political Science Association.
Heartfelt welcome!

Rwanda's women MPs on women in Parliament

noreply@blogger.com (Hilde Coffé) — Thu, 26 Jan 2012 10:12:00 +0000

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

An increasing number of women serve in parliaments across the world, and a growing body of research has studied female political representation. Within this research line, three points of focus can be distinguished:
► Study of female representation in a descriptive manner, with concentration on the number of women in Parliament;
► Exploration of substantive representation, preliminarily concerned with the effect female representation has on policy outcomes and political styles and cultures; and
► Consideration of symbolic representation.
This last research-focus suggests that female Members of Parliament (MPs) are role models for women in society, inspiring them to engage in political activity and discussion and serving to increase political trust.
Little research exists, however, on how female representatives themselves think about female political representation. And no study has empirically investigated female representatives' conceptions of female political representation. Yet, these perspectives and conceptions are important, because they may eventually indicate how female representatives behave.
My explorative case study, Conceptions of Female Political Representation: Perspectives of Rwandan Female Representatives, investigates the conceptions of female political representation held by female members of Parliament in Rwanda.
Rwanda has positioned itself on the international stage as having the most gender-equal Parliament in the world. In 2003, the country adopted a gender-sensitive constitution, including a guarantee that 30% of posts in all decision-making organs would be held by women. The Lower House of the Rwandan Parliament has 80 members, 53 of whom are directly elected by a proportional representation system. The additional seats are reserved for women (24), youngsters (2 seats), and disabled people (1 seat). (credit for February 2011 AFP photo of Rwanda's Parliament in session)
As a result of this rule, women hold at least 30% of the seats in the Lower House of the Parliament; a number that is added to by women elected through additional, openly contested seats. Women also hold at least 30% of the seats within the Senate, the Upper House of the Rwandan Parliament, as indicated by the constitution. (Prior IntLawGrrls posts here and here.)
My analyses, based on Q method exercises during interviews held with 14 female Rwandan members of the Lower and Upper Houses of Parliament, revealed three unique types of conceptions regarding female political representation. Specifically, female representatives focused on:
► (1) Symbolic and descriptive representation;
► (2) Symbolic representation and power; and
► (3) Substantive representation.
The first group treats the political representation of women mainly as a numbers game, and focuses on descriptive representation. Women in this first group also have a favorable attitude towards gender quota. As one female representative put it:

'If there would have been no quotas; we would not be here.'

This group puts little emphasis on the substantive effect of female political representation but is aware of the symbolic effect they have. They strongly believe that, as one said,

'Having women in Parliament stimulates other women to become active in politics.'

The second group, "symbolic representation and power," also associates female political representation with its symbolic function. But in contrast to the first group, these women ascribed greater value to power than to numbers. As one representative argued:

'The number is important, but to be able to influence politics, you need to have power. Women will have more influence when one of them holds a higher position in Parliament (e.g., President or Vice-President of the Lower House or Senate) than when they are all only ordinary MPs.'

A final, small group, "substantive representation," comprised 3 respondents. This group treats female political representation mainly as a substantive issue: one subgroup saw a low substantive effect of female political representation, and another sub-group emphasized the substantive effect of female political representation on policy outcomes.
Overall, my analysis revealed some combinations of ideas that do not fit the theoretical conceptions of descriptive, substantive, and symbolic representation. In particular, some representatives are looking for a delicate balance between a focus on capacities and the numerical presence of women in Parliament. That is, they focus on the need to have a substantial number of female representatives in Parliament, but at the same time also believe that it is important to have the best politicians in Parliament, whatever their sex is.
In general, however, I find some clustering around ideas of descriptive, substantive and symbolic representation.
Furthermore, my study shows little emphasis among Rwandan female representatives for substantive policy effects. Some female representatives consider themselves as better at representing women because they have experienced the same problems and know the problems that women are facing. Some even argue that they have put gender issues on the political agenda. However, support for the idea that female representatives have a substantial influence on policy outcomes is limited.
Rwandan female representatives value the function as role models more than an actual role in policy making. This may be related to previous research on female political representation in Rwanda, which found a limited effect of female representation on policy outputs. (See Jennie E. Burnet, “Gender Balance and the Meanings of Women in Governance in Post-Genocide Rwanda,” 107 African Affairs 361 (2008), available here; Claire Devlin & Robert Elgie, “The Effect of Increased Women’s Representation in Parliament: The Case of Rwanda,” 61 Parliamentary Affairs 237 (2008), available here.) Although I can obviously not confirm the causality of the relationship, the ideas most women have regarding female political representation do seem to be interrelated with women’s actual role and influence in Parliament.
At the same time, it is important to keep the Rwandan political context in mind, in which few policy differences between MPs are discussed in public. Indeed, during the interviews I had with the female representatives, it was often repeated that all Members of Parliament have generally the same ideas. As one female representative reported:

'All MPs have to work together on issues which are good for the Rwandan society as a whole, for all Rwandan citizens. In general, all MPs have the same ideas and points of view. If everyone wants good things for society, there is not much difference between the MPs.'

At the same time, there is limited scope and place for political debate within Rwandan parliament, and limited capacity to check and influence executive authority. Political scientists Gretchen Bauer and Hannah E. Britton addressed this point on page 23 of Women in African Parliaments, a 2006 work they edited. They wrote that the highly centralized power of Rwanda's executive also

'discourages full democratic participation regardless of gender.'

'Nuff said

noreply@blogger.com (Diane Marie Amann) — Thu, 26 Jan 2012 08:04:00 +0000

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

Concerns about the H5N1 research have again forced scientists and policy makers to think about risks associated with well-intentioned, lawful, and potentially valuable research that might facilitate bioterrorism or result in accidental release or escape. The World Health Organization (“WHO”) captured the conundrum when it expressed concern about potentially adverse consequences of the H5N1 research but stressed that research continue “so that critical scientific knowledge needed to reduce the risks posed by the H5N1 virus continues to increase.” Balancing costs and benefits requires governance of risky research, and the international scale of such research brings international law into the picture.

-- Our colleague David P. Fidler, the James Calamaras professor of Law at Indiana University Maurer School of Law in Bloomington, in "Risky Research and Human Health: The Influenza H5N1 Research Controversy and International Law." a recent ASIL Insight. David set the stage by discussing a recent WHO decision to hold off on publishing research on a dangerous strain of bird flu. (credit for electron micrograph of the flu strain at issue, H5N1) A news story on Saturday, in fact, reported that researchers have postponed work altogether. David's essay then proceeded to demonstrate the current absence of international legal mechanisms in the area and to propose models for governance that officials might consider in planned, WHO-administered negotiations.

On January 26

noreply@blogger.com (Diane Marie Amann) — Thu, 26 Jan 2012 05:04:00 +0000

On this day in ...
... 1900, in a letter to a friend, Theodore Roosevelt, then Governor of New York, wrote of the style with which he dealt with political intrigue in Albany:

I have always been fond of the West African proverb: 'Speak softly and carry a big stick, you will go far.'

Indeed, he would go far. By year's end the author would be elected President of the United States, one whose record recently was invoked by the current holder of that office. As the Library of Congress notes, the quoted phrase would "become a trademark description" of foreign policy in the administration of Roosevelt– who was also, and not coincidentally, a big-game hunter. (credit for photo of Roosevelt during 1910 African safari)

(Prior January 26 posts are here, here, here, and here.)

Mugesera Deported

noreply@blogger.com (Beth Van Schaack) — Wed, 25 Jan 2012 18:04:00 +0000

It has been a busy week for aficionados of International Criminal Law. One development that may have escaped notice concerns our neighbor to the north.

Rwandan Léon Mugesera recently lost appeals filed before provincial and federal courts in Canada seeking to prevent his deportation to Rwanda. Mugesera is known for an inflammatory speech given in 1992 that is believed to have helped trigger the genocide that engulfed Rwanda a year and a half later. After he successfully applied for permanent residence in Canada, Canadian immigration authorities commenced deportation proceedings against him. In 2005, the Supreme Court of Canada reversed an appellate court’s ruling that Mugesera did not deliberately incite murder,hatred or genocide. The Supreme Court concluded that there were “reasonable grounds to believe” that Mugesera committed crimes against humanity—the standard for deportation. The full speech is appended as appendix III to the Supreme Court opinion.
In an effort to avoid deportation, Mugesera invoked the non-refoulement principle, among other arguments, claiming that he would be subjected to persecution in Rwanda if he were returned. He filed an Article 22 individual petition before the Committee Against Torture, the body charged with enforcing the Convention Against Torture, seeking the Committee’s views on his vulnerability to torture. The Committee by letter requested Canadian officials to stay deportation so it could consider the petition. The Quebec Superior Court temporarily stayed the deportation, but then ruled that the Committee lacked the power to constrain states parties because it was limited to offering its views on individual petitions. It also determined that the responding to the Committee was an executive function, rather than a judicial one.

On January 24^th, after a 16 year legal battle, Mugeserawas deported and is now in custody in Kigali. This result, while welcomed by many, remained controversial, as many in Canada argued that Mugesera should have been prosecuted for his underlying crimes (including incitement to genocide) rather than simply deported. So far, Canada has prosecuted only two individuals under its Crimes Against Humanity and War Crimes Act:

Désiré Munyaneza and

Jacques Mungwarere—both Rwandans.

(See our coverage of the Munyaneza case here). The current government has indicated an intention to streamline its laws (particularly the Immigration and Refugee Protection Act) to make deportation even easier.

For more on Canada’s Crimes Against Humanity and War Crimes program, see here. Good coverage is also available on the website of theCanadian Center for International Justice). (We’ve covered the work of CCIJ before, see here (the effort to prosecute George W. Bush in Canada) and here (on Canada’s war crimes programgenerally and the prosecute v. deport debate)).
Mugesera has been under indictment in Rwanda for years. Mugesera’s crimes arguably fall outside of the temporal jurisdiction of the International Criminal Tribunal for Rwanda,because his infamous speech was given in 1992—almost 2 years before the ICTR’s jurisdiction commences. Article 1 of the ICTR Statute provides:

The International Tribunal for Rwanda shall have the power to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of Rwanda and Rwandan citizens responsible for such violations committed in the territory of neighbouring States between 1 January 1994 and 31 December 1994, in accordance with the provisions of the present Statute.

The Appeals Chamber of the ICTR has rejected the argument that incitement to genocide is a continuing crime. In Prosecutorv. Nahimana, the so-called Media Case, the Appeals Chamber held:

723. The Appeals Chamber isof the opinion that the Trial Chamber erred in considering that incitement to commit genocide continues in time “until the completion of the acts contemplated.” The Appeals Chamber considers that the crime of direct and public incitement to commit genocide is completed as soon as the discourse in question is uttered or published, even though the effects of incitement may extend in time. The Appeals Chamber accordingly holds that the Trial Chamber could not have jurisdiction over acts of incitement having occurred before 1994 on the grounds that such incitement continued in time until the commission of the genocide in 1994.

An international consensus has apparently emerged that Rwandan judicial system is finally capable of fairly prosecuting its own, which clearly freed Canada to move quickly on the Mugesera case. Also to this end, the ICTR Office of the Prosecutor conveyed the dossier on Jean Ukinwindi to the courts of Rwanda, paving the way for the first transfer of a suspect from the international court to Rwanda, as we discussed here. The European Court of Human Rights also ruled that Sweden could transfer Sylvère Ahorugeze without running afoul of the non-refoulement principle (see our coverage here). The gacaca system is set to conclude in May 2012, after hearing more than a million genocide cases since 2005. An official closing ceremony will be held on May 4, 2012.

President Obama's State of the Union Address, Energy, and Climate Change

noreply@blogger.com (Hari M. Osofsky) — Wed, 25 Jan 2012 15:48:00 +0000

Last night, President Barack Obama delivered his annual State of the Union Address. (photo credit)
Like last year, he focused on the potential for unity over energy independence, transition to cleaner energy, and energy infrastructure rather than on addressing climate change. He continued to tie that transition to innovation, construction, and jobs.
However, the tone was somewhat different. Unlike last year, where he did not mention climate change directly, he openly acknowledged partisan divisions with respect to climate change and even energy while trying to find bipartisan ground. The President also spent time discussing the expansion of offshore drilling and natural gas as positive rather than just emphasizing the need to shift towards cleaner sources.
I liked the realism of this shift. One of the reasons I spent time in the aftermath of the BP Deepwater Horizon oil spill exploring the complexity of offshore drilling and oil spill regulation, and principles for moving forward and addressing environmental justice concerns, is because I believe that the desire for energy independence and security will compel us to keep drilling deep in at least the short-to-medium term. Similarly, I think that natural gas is an important transitional energy source because we are not ready to shift dramatically to cleaner sources in the near term.
I do think it's important, though, to think beyond our present constraints. I live in the Midwest, with its massive wind capacity, and was particularly heartened by two experiences I had during my Climate Change and Clean Energy capstone course last semester. First, when John Dunlop of the American Wind Energy Association visited us, he emphasized that between on-shore and off-shore wind, we have capacity to more than meet our energy needs and that intermittency is more manageable than it is often portrayed as being. Second, when we went on a tour of the MISO, the Midwestern regional transmission organization, the operator answering our questions emphasized that they try to get as much wind online as possible. This effort is not motivated by any type of environmental mandate, but out of their mission of reducing cost and maximizing reliability – the wind is cheaper than the more polluting sources. I hope that we can move beyond bipartisanship to use law as a tool for the energy transformation – through a combination of conservation, efficiency, and transitioning sources – that would be a win-win for this country.
I include the most relevant portion of the State of the Union below:

After all, innovation is what America has always been about. Most new jobs are created in start-ups and small businesses. So let’s pass an agenda that helps them succeed. Tear down regulations that prevent aspiring entrepreneurs from getting the financing to grow. (Applause.) Expand tax relief to small businesses that are raising wages and creating good jobs. Both parties agree on these ideas. So put them in a bill, and get it on my desk this year. (Applause.)
Innovation also demands basic research. Today, the discoveries taking place in our federally financed labs and universities could lead to new treatments that kill cancer cells but leave healthy ones untouched. New lightweight vests for cops and soldiers that can stop any bullet. Don’t gut these investments in our budget. Don’t let other countries win the race for the future. Support the same kind of research and innovation that led to the computer chip and the Internet; to new American jobs and new American industries.
And nowhere is the promise of innovation greater than in American-made energy. Over the last three years, we’ve opened millions of new acres for oil and gas exploration, and tonight, I’m directing my administration to open more than 75 percent of our potential offshore oil and gas resources. (Applause.) Right now -- right now -- American oil production is the highest that it’s been in eight years. That’s right -- eight years. Not only that -- last year, we relied less on foreign oil than in any of the past 16 years. (Applause.)
But with only 2 percent of the world’s oil reserves, oil isn’t enough. This country needs an all-out, all-of-the-above strategy that develops every available source of American energy. (Applause.) A strategy that’s cleaner, cheaper, and full of new jobs.
We have a supply of natural gas that can last America nearly 100 years. (Applause.) And my administration will take every possible action to safely develop this energy. Experts believe this will support more than 600,000 jobs by the end of the decade. And I’m requiring all companies that drill for gas on public lands to disclose the chemicals they use. (Applause.) Because America will develop this resource without putting the health and safety of our citizens at risk.
The development of natural gas will create jobs and power trucks and factories that are cleaner and cheaper, proving that we don’t have to choose between our environment and our economy. (Applause.) And by the way, it was public research dollars, over the course of 30 years, that helped develop the technologies to extract all this natural gas out of shale rock –- reminding us that government support is critical in helping businesses get new energy ideas off the ground. (Applause.)
Now, what’s true for natural gas is just as true for clean energy. In three years, our partnership with the private sector has already positioned America to be the world’s leading manufacturer of high-tech batteries. Because of federal investments, renewable energy use has nearly doubled, and thousands of Americans have jobs because of it.
When Bryan Ritterby was laid off from his job making furniture, he said he worried that at 55, no one would give him a second chance. But he found work at Energetx, a wind turbine manufacturer in Michigan. Before the recession, the factory only made luxury yachts. Today, it’s hiring workers like Bryan, who said, “I’m proud to be working in the industry of the future.”
Our experience with shale gas, our experience with natural gas, shows us that the payoffs on these public investments don’t always come right away. Some technologies don’t pan out; some companies fail. But I will not walk away from the promise of clean energy. I will not walk away from workers like Bryan. (Applause.) I will not cede the wind or solar or battery industry to China or Germany because we refuse to make the same commitment here.
We’ve subsidized oil companies for a century. That’s long enough. (Applause.) It’s time to end the taxpayer giveaways to an industry that rarely has been more profitable, and double-down on a clean energy industry that never has been more promising. Pass clean energy tax credits. Create these jobs. (Applause.)
We can also spur energy innovation with new incentives. The differences in this chamber may be too deep right now to pass a comprehensive plan to fight climate change. But there’s no reason why Congress shouldn’t at least set a clean energy standard that creates a market for innovation. So far, you haven’t acted. Well, tonight, I will. I’m directing my administration to allow the development of clean energy on enough public land to power 3 million homes. And I’m proud to announce that the Department of Defense, working with us, the world’s largest consumer of energy, will make one of the largest commitments to clean energy in history -– with the Navy purchasing enough capacity to power a quarter of a million homes a year. (Applause.)
Of course, the easiest way to save money is to waste less energy. So here’s a proposal: Help manufacturers eliminate energy waste in their factories and give businesses incentives to upgrade their buildings. Their energy bills will be $100 billion lower over the next decade, and America will have less pollution, more manufacturing, more jobs for construction workers who need them. Send me a bill that creates these jobs. (Applause.)
Building this new energy future should be just one part of a broader agenda to repair America’s infrastructure. So much of America needs to be rebuilt. We’ve got crumbling roads and bridges; a power grid that wastes too much energy; an incomplete high-speed broadband network that prevents a small business owner in rural America from selling her products all over the world.

(Cross-posted on Environmental Law Profs Blog and SaltLaw Blog.)

Read On! de Londras on detention

noreply@blogger.com (Fionnuala Ní Aoláin) — Wed, 25 Jan 2012 12:00:00 +0000

(Read On! ... occasional posts on writing worth reading)

I would strongly recommend reading the new book by IntLawGrrls contributor Fiona de Londras (below right).
The book is entitled Detention in the 'War on Terror': Can Human Rights Fight Back? (2011), and recently was published by Cambridge University Press.
The book is timely given the ongoing controversy about maintaining the detention facilities at Guantánamo Bay, and the ongoing pursuit of military commission proceedings against those detained by the United States.
Fiona's book provides a detailed and comprehensive overview of the evoluation of detention practices in both the United Kingdom and the United States, giving state-of-the-art comparative analysis on the comparators and differences between both jurisdictions.
The book places its analysis in the context of a compelling and rich discussion of moral panic theory and its relevance to a textured understanding of responses to terrorist violence post the events of 9/11.
What is wonderful about this book is that it also tells an optimistic tale, demonstrating the relative autonomy and resiliance of international law in the face of undulating pressure from partial hegemons. That analysis of resistance is an important contribution to understanding the relative strength of international human rights law norms, and their growth and traction in the face of extra-ordinary challange.
For all those interested in national security and human rights issues, this is a must-read book for 2012.

Go On! ICL, in China

noreply@blogger.com (Diane Marie Amann) — Wed, 25 Jan 2012 08:00:00 +0000

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

"Sovereignty and Individual Criminal Responsibility for Core International Crimes" will be the subject of the 2012 Li Haopei Lecture and Seminar, to be held April 2 and 3, at the China University of Political Science and Law in Beijing, China. According to its sponsor, the Forum for International Criminal and Humanitarian Law, the event will examine the theme as it plays out in 3 issue areas:
► "First, when evidence of core international crimes incriminates State officials and there are calls for criminal investigation, State immunity concerns will continue to be voiced."
► "Secondly, the closing down of the ad hoc international criminal jurisdictions is likely to shift more attention to the exercise of national criminal jurisdiction over core international crimes, which would include jurisdictional exercise by States not directly affected by the said crimes."
► "Thirdly, the amendments of the ICC Statute at the 2010 Review Conference with regard to the crime of aggression may at one stage enable the ICC to investigate and prosecute such crimes."
Delivering the 2d annual lecture in honor of Judge Li (1906-97), a Chinese jurist, diplomat and academic who served on the International Criminal Tribunal for the former Yugoslavia, will be Judge Liu Daqun (left). (photo credit) Liu served as an Appeals Chamber Judge for the ICTY and the International Criminal Tribunal for Rwanda, will speak on "Immunity of State Officials for Core International Crimes and the ICC Statute." (Delivering the inaugural lecture, in Oslo in 2011, was International Criminal Court Vice President Hans-Peter Kaul; his speech, "Implications of the Criminalization of Aggression," is available here.)
Speakers at the seminar will include 2 colleagues who took part in IntLawGrrls' 2010 "Women and International Criminal Law" roundtable: the director of the Forum for International Criminal and Humanitarian Law, Morten Bergsmo, and Georgetown Law Professor David Luban.
Women taking part in the seminar include Professor Ling Yan (right), Judge Li's daughter and Director of the Research Center for International Criminal Law and Humanitarian Law at China University of Political Science and Law, and Dr. Zhou Lulu, Director of the Treaty Division of the Department of Treaty and Law, Ministry of Foreign Affairs of China.
Details and registration (requested by March 21, 2012) for the Lecture and Seminar are available here.

On January 25

noreply@blogger.com (Diane Marie Amann) — Wed, 25 Jan 2012 05:04:00 +0000

On this day in ...
... 1871, Maud Wood Park (right) was born in Boston, Massachusetts. An 1898 summa graduate of Radcliffe, "where she was one of only two students in a class of seventy-two to favor the vote for women," Park would go on to a career in social work and political activism. Initially, she worked in her own area, serving as a leader in city and state suffrage organizations; then, recruited by Carrie Chapman Catt, she became a campaigner for women's suffrage throughout the United States -- a goal achieved with the passage of the 19th Amendment to the U.S. Constitution in 1920. That same year, Park became the 1st President of the League of Women Voters, serving till 1924, and in that time successfully lobbying for legislation that benefited women and children. (credit for photo from Library of Congress collection of her papers) She would remain a popular lecturer till her death in 1955.

(Prior January 25 posts are here, here, here, and here.)

Introducing Sara Kendall

noreply@blogger.com (Diane Marie Amann) — Tue, 24 Jan 2012 11:20:00 +0000

It's our great pleasure to welcome Dr. Sara Kendall (left) as an IntLawGrrls contributor.
Sara's a Researcher at the Grotius Centre for International Legal Studies at Leiden Law’s Hague campus. There Sara assesses the extent to which International Criminal Court's judicial processes respond to the contexts in which it intervenes. In her introductory post below, written from Nairobi, she examines that issue with respect to Kenya – a situation in which, as Sara explains, an ICC Pre-Trial Chamber yesterday issued a major decision.
Sara has published frequently on international criminal justice issues.
She joined the Grotius Centre after receiving her Ph.D. from the University of California-Berkeley, where she also taught. In Berkeley’s interdisciplinary Rhetoric department, she specialized in socio-legal studies and political theory, with further reading in the field of human rights and international humanitarian law. Sara conducted a year of fieldwork in Sierra Leone for Berkeley’s War Crimes Studies Center, monitoring and reporting on the work of the Court, as field research for her dissertation, Contested Jurisdictions: Legitimacy and Governance at the Special Court for Sierra Leone.
Heartfelt welcome!

In Kenya, ICC intervention, domestic solution?

noreply@blogger.com (Sara Kendall) — Tue, 24 Jan 2012 10:00:00 +0000

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

NAIROBI, Kenya – The International Criminal Court yesterday confirmed charges against four of six suspects in two cases regarding alleged crimes against humanity that occurred in late 2007 and early 2008 following Kenya’s disputed election.
By the votes of Judges Ekaterina Trendafilova of Bulgaria and Cuno Tarfusser of Italy, who comprised a majority of Pre-trial Chamber II, the ICC determined that trials will go forward against:
► Parliamentarian William Samoei Ruto and radio presenter Joshua Arap Sang in Case I (affiliated with the Orange Democratic Movement opposition party); and
► Deputy Prime Minister Uhuru Kenyatta and public service head Francis Muthaura in Case II (affiliated with the Party of National Unity).
The judges declined to confirm charges against parliamentarian Henry Kosgey in Case I and former police commissioner Mohammed Hussein Ali in Case II, citing the prosecution’s failure to meet the standard of substantial grounds to believe that the crimes were committed and that the suspects were responsible.
The Pre-Trial Chamber's third member, Judge Hans-Peter Kaul of Germany, an ICC Vice President, dissented from the majority decision. He maintained that while the crimes committed were serious crimes under Kenyan criminal law, they did not meet the threshold required to be tried before the ICC. (Prior IntLawGrrls posts on these cases available here.) Among other things, the rift on the bench reveals a larger question about what ought to constitute material jurisdiction in cases before the ICC.
This post focuses not on the decisions themselves, but rather on how they have appeared in Kenyan popular discourse, and on the reactions of some civil society organizations. (map credit)
Commentators on the Kenyan situation have long noted the political dimensions of these cases and their potential for shaping the outcome of Kenya’s next election, which is currently due to be scheduled for the end of this year or for the first quarter of 2013. This is because one of the accused against whom the ICC will proceed, Uhuru Kenyatta, is the presumed successor of current Kenyan President Mwai Kibaki.
In addition to the political implications of this decision, another possible outcome of the ICC process may be a return to domestic paths to accountability.
ICC-related stories had dominated Kenya’s most widely circulated dailies well before the decisions were announced yesterday,around 1:30 p.m. East African time. On the morning of the decision, the lead stories of The Standard and Daily Nation assumed an apocalyptic tone – “Day of Judgement: Confirmed?” and “The Hague: Day of decision.” The Standard proclaimed:

'It could be the single ruling whose ink will rewrite Kenya’s history and its winds shake the political arena from today at 1:30.'

Other headlines highlighted the possibility of violence that might accompany the decision – “Anxiety and prayer as Kenyans await ruling on cases facing Ocampo Six”, “Your days are numbered, tribal inciters warned” and “Police deployed in ‘hotspots’ to curb violence.” Columnists and letter-writers devoted page after page to ICC-related debate.
An umbrella network of civil society organizations known as Kenyans for Peace with Truth and Justice, or KPTJ, had taken out a full-page advertisement in the Daily Nation calling for calm and emphasizing the domestic implications of confirming the charges. (logo credit)
While security concerns and dramatic proclamations dominated yesterday’s headlines, it appears that the debate is in the process of shifting to a different set of issues, as indicated by the KPTJ: How will this decision bear upon the next election, and will Kenyans revive previous efforts to handle these kinds of crimes domestically?
Yesterday I was the lone Hague-based academic among persons from Kenyan civil society organizations, academic institutions, and news outlets who were invited to attend an ICC-sponsored event yesterday. I made my way out to the ostentatious Safari Park Hotel outside the Nairobi city center to attend an ICC-sponsored event that featured live-streaming of the judgment summary. The event was designed to foster accurate reporting of the outcome by linking the participants with legal officers of the Pre-Trial Chamber for a question-and-answer session following the decision; despite the efforts by Court staff, however, no connection could be established with the Hague-based legal officers.
Perhaps this technical problem stood metaphorically for something larger: Kenyans would not be looking Hague-ward for answers.
In the comments that followed from invited Kenyan legal experts and members of civil society organizations, it became clear that the ICC route alone was considered insufficient for dealing with issues of impunity. Perhaps in hindsight the ICC spectacle will have offered more of a distraction from domestically driven reform projects than an exemplar of justice ‘being seen to be done,’ particularly since ‘seeing’ it involved straining through an unruly and pixellated live feed of proceedings that were taking place thousands of kilometers away. Among the participants at the ICC outreach event, the consensus seemed to be that the ‘don’t be vague, go to The Hague’ sentiment which had held sway in the past would soon be overtaken by more domestically driven initiatives.
One question to be resolved in Kenya now is whether indictees will resign from public office, either on their own volition or to satisfy the (yet to be litigated) requirements of public officials found in Kenya’s 2010 Constitution. Chapter Six of the Constitution (‘Leadership and Integrity’) includes provisions on the ethics and integrity of public officials, and pending charges against the indictees before the ICC could be interpreted as triggering those barriers. Among other members of the KPTJ, the International Commission of Jurists and the International Centre for Policy and Conflict have publicly called upon the suspension of Kenyatta and Muthaura from public office, a position that has also been put forward by the Justice and Constitutional Affairs minister.
Heated debates on this point had already been taking place in the popular press by the time of the decision, and they will likely be translated into domestic court processes during the lull before ICC trials begin.
Furthermore, civil society actors are planning to breathe new life into idea of a special tribunal recommended by the Commission of Inquiry into Post-Election Violence (popularly known as the Waki Commission) in its influential 2008 report. The ICC prosecution is thought to have relied heavily on the findings of the report in its cases after the Kenyan parliament failed to pass legislation establishing a domestic tribunal. On the day of the confirmation of charges decision, the KPTJ statement asserted:

'We also continue our calls for the establishment of a special judicial mechanism to address those who have not been prosecuted for post-election violence so that we can ensure accountability and peaceful elections.'

This sentiment was echoed at the ICC outreach event, where several civil society representatives noted the need for domestic solutions to Kenya’s “serious accountability gap,” as the executive director of the Kenyan NGO Africog described it, particularly since the ICC cases are thought to be too geographically limited. Others called for collective insistence on a local mechanism, asking:

'Why focus on these six when there are those who have committed crimes who are moving freely?'

There is substantial consensus that the Kenyan state failed to take appropriate domestic measures to justify a meaningful admissibility challenge under Article 17 of the ICC’s Rome Statute, which provides that the ICC may exercise jurisdiction only where states are ‘unwilling’ or ‘unable’ to prosecute crimes domestically. Nevertheless, it may be that the growing awareness of the limited form of justice available at the ICC may catalyze further domestic initiatives – initiatives that may ultimately sideline the externally shaped form of justice on offer in The Hague.
As former South African president Thabo Mbeki recently argued at Uganda’s Makerere University, defending the self-determination of African states is a ‘fundamental and strategic imperative.’ In this light, the more domestically driven a process may be, the better.

New World Food leader

noreply@blogger.com (Diane Marie Amann) — Tue, 24 Jan 2012 08:55:00 +0000

Pleased to note that Ertharin Cousin (right) has been appointed Executive Director of the United Nations' World Food Programme. Based in Rome, Italy, and employing 10,000 persons, the Programme is the globe's largest anti-hunger agency. (credit for 2011 photo by Giulio Napolitano of the United Nations' Food and Agricultural Organization)
Especially pleased to note that Chicago-born Cousin, who comes to the position after serving 2 years as the United States' Ambassador to the United Nations Agencies for Food and Agriculture, is a 1982 alumna of the University of Georgia School of Law. Previous posts have included leading post-Hurricane Katrina efforts for a U.S. anti-hunger organization, Feeding America, as well as positions at the Democratic National Committee and in the White House.
This April, Cousin will succeed another American, Josette Sheeran, who will become Vice President of the World Economic Forum in Geneva, Switzerland.

On January 24

noreply@blogger.com (Diane Marie Amann) — Tue, 24 Jan 2012 05:04:00 +0000

On this day in ...
... 1920, according to an item entitled "POSTPONEMENT OF THE ANNUAL MEETING OF THE AMERICAN SOCIETY OF INTERNATIONAL LAW" and published at 14 American Journal of International Law 382 (1920):

At the meeting of the Executive Council of the American Society of International Law held in Washington on the 24th day of January, 1920, after very full discussion, the Council unanimously resolved that in view of the existing diplomatic situation, it was expedient to postpone the general meeting of the Society for the year 1920, until a time when general discussion of international questions that are of active public interest may be useful rather than embarrassing.
Timely notice of the postponed meeting will be given.
Elihu Root,
President.

Reason for this extraordinary measure? Presumably, an event that had occurred just days earlier: the failure to reach a compromise by which the Senate would have given its advice and consent to the Versailles Treaty and, thus, to the League of Nations Covenant. (credit for undated photo of Root)

(Prior January 24 posts are here, here, here, and here.)

U.S. adjusts view on human rights law in wartime

noreply@blogger.com (Beth Van Schaack) — Mon, 23 Jan 2012 12:20:00 +0000

In its recent submission to the Human Rights Committee, the United States has backed off a long-standing position: that international human rights law does not apply in a time of armed conflict when international humanitarian law applies.
The change occurs in the Fourth Periodic Report of the United States to the U.N. committee, which monitors states parties' compliance with the International Covenant on Civil and Political Rights.
As noted Saturday in our first post on the Fourth Report, the United States appeared in its submission to soften its stance vis-à-vis the question of whether a state’s human rights obligations apply when that state is operating extraterritorially.
With regard to applicability of human rights law in time of armed conflict, the change of U.S. views was express. In particular, the United States stated in the Fourth Report, at ¶ 506:

With respect to the application of the Covenant and the international law of armed conflict (also referred to as international humanitarian law or “IHL”), the United States has not taken the position that the Covenant does not apply “in time of war.” Indeed, a time of war does not suspend the operation of the Covenant to matters within its scope of application.

The United States stated that “typically” it is international humanitarian law that regulates the conduct of states in armed conflict situations, according to the doctrine of lex specialis. In the next breath, however, the U.S. submission stated at ¶ 507:

In this context, it is important to bear in mind that international human rights law and the law of armed conflict are in many respects complementary and mutually reinforcing. These two bodies of law contain many similar protections [such as the prohibition against torture].

Later, the submission noted that the choice of law question is fact-specific:

Determining the international law rule that applies to a particular action taken by a government in the context of an armed conflict is a fact-specific determination, which cannot be easily generalized, and raises especially complex issues in the context of non-international armed conflicts occurring within a State’s own territory.

These passages suggest both a more relaxed understanding of the relationship between these two bodies of law and an imperative to harmonize legal obligations when there is no direct contradiction between them.
In addition, this language suggests that it is the United States' view that there may be aspects of a state's conduct that are, in fact, governed by human rights law, even in a state of armed conflict.
Thus, human rights law can be employed as an interpretive aid to add content to undefined terms in international humanitarian law, such as “judicial guarantees” and “humane treatment,” or to expound upon treaty obligations, as in situations of occupation or detention when the occupying state exercises plenary power over territory or individuals.
Despite the Fourth Report's claim that the United States "has not taken the position" that human rights do not apply in armed conflicts, prior administrations have, in fact, argued to this effect. Even in its prior submission to the Committee—The Second and Third Periodic Report submitted in 2005—the United States stated, in response to a request for information concerning the treatment of detainees on Guantánamo, that the entire topic was outside the purview of the Committee, for the reason that the ICCPR does not apply extraterritorially. In addition, it was submitted at ¶ 130 of the Second and Third Report:

The United States also notes that the legal status and treatment of such persons is governed by the law of war.

The United States argued this position more forcefully in litigation before the Inter-American Commission of Human Rights involving the legality of the detention center on Guantánamo Bay Naval Base. In its brief before the Commission (styled "Response of the United States for Request for Provisional Measures—Detainees in Guantánamo Bay, Cuba"), the United States argued in 2002:
► At p. 15:

It is humanitarian law, and not human rights law, that governs the capture and detention of enemy combatant in armed conflict.

► At p. 20:

This case … involves solely the interpretation and application of specific articles of the Geneva Convention and related customary international humanitarian law. …

► At p. 21:

International human rights law is not application to the conduct of hostilities or the capture and detention of enemy combatants, which are governed by the more specific laws of armed conflict.

In that case, the Inter-American Commission ultimately issued precautionary measures on behalf of all individuals then detained on Guantánamo. (See here and here).
In the first case filed by an individual detainee, Djamel Ameziane (of Algeria), the Inter-American Commission issued additional precautionary measures. (See press release from the Center for Constitutional Rights here).
In August 2011, the Commission issued another resolution urging the United States to close the Guantánamo Bay detention facility.
Besides this little nugget, there is lots of interesting material in the U.S. submission. In particular, in addressing various issues raised by the Committee in its last Concluding Observations, the United States discusses the:
► Humane treatment and interrogation of all detainees;
► Closing of CIA detention facilities;
► Definition of “terrorism” employed in the immigration and counter-terrorism context;
► Detention regime in Afghanistan; and
► Non-refoulement obligations of the United States.
The Fourth Report also provides an accounting of efforts to hold individuals and entities responsible for detainee abuse.
Well worth a read...

Go On! Intlaw & Internet @ Emory

noreply@blogger.com (Laurie Blank) — Mon, 23 Jan 2012 09:49:00 +0000

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

On February 1, 2012, the Emory International Law Review at my home institution, Emory University School of Law in Atlanta, Georgia, will host “International Law and the Internet: Adapting Legal Frameworks in Response to Online Warfare and Revolutions Fueled by Social Media.” The symposium will explore the various and novel legal issues surrounding the intersection of the Internet and international law, with a focus on human rights law and the law of war.
Recent cyber attacks and escalating cyber war rhetoric around the globe present today’s legal scholars and decision makers with difficult questions on how—or whether—to apply traditional notions of the law of war in the cyber realm. In addition, as evident in IntLawGrrls' posts like this one, increased Internet access and social media are shaping modern societies and the ways in which people interact. The Internet is used by the masses to spur public debate, to organize peaceful gatherings, and to even foment political revolution – while some governments use Internet censorship as a tool to do just the opposite.
Now, more than ever, there is a growing need for legal scholarship, discussion, and further clarification on how international law should treat the emergence of these technological advances.
Cosponsored by Emory’s Center for International and Comparative Law and the American Society of International Law’s Lieber Society on the Law of Armed Conflict, this symposium will feature two panel presentations and a keynote address delivered by Eric Greenwald, Senior Advisor to the Director of Operations at U.S. Cyber Command, based at Fort Meade, Maryland. (credit for logo at right)
The first panel starts at 9:45 a.m. and is entitled “How Internet Access and Social Media Have Changed Revolutionary Tactics and Government Response,” with speakers Ryan Budish (Harvard University, Berkman Center for Internet and Society); Ramnath Chellappa (Emory University, Goizueta Business School); and Sascha Meinrath (New America Foundation, Open Technology Initiative).
The keynote address by Greenwald is at 12:30 p.m., followed by the second panel at 1:30 p.m.: “Re-Conceptualizing International Law Frameworks in Response to the Threat of Cyber Warfare”, which features Col. Gary Brown (U.S. Cyber Command); Eric Jensen (Brigham Young University Law School); Catherine Lotrionte (left) (Georgetown University Law Center, Institute for Law, Science and Global Security) (photo credit); and Michael N. Schmitt (U.S. Naval War College).
The full agenda and additional information about registration, CLE credit, and parking are available here.

On January 23

noreply@blogger.com (Diane Marie Amann) — Mon, 23 Jan 2012 08:04:00 +0000

On this day ...
... 1572 (440 years ago today, though a number of other sources say it was January 28), Jeanne-Françoise Frémyot was born into an aristocratic family in Dijon, France. She lost her mother at 18 months of age. Her father gave her an education, then gave her in marriage, at age 20, to the Baron de Chantal. By age 28 she was the widowed mother of 3 children; another 3 had died shortly after childbirth. (credit for portrait of her at age 30) After meeting St. Francis de Sales, she founded, in 1610, a religious "order for women who were rejected by other orders because of poor health or age" -- the Order of the Visitation of Holy Mary. Known in English as Jane Frances de Chantal -- the name this 'Grrl took at confirmation -- she died at the age of 69 at a convent in Moulins that she had established, and was named a Roman Catholic saint in 1767. Herself the author of spiritual letters, de Chantal also was the grandmother of a noted epistolary author, Marie de Rabutin-Chantal, best known as the Marquise de Sévigné.

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

Introducing Johanna Westeson

noreply@blogger.com (Diane Marie Amann) — Sun, 22 Jan 2012 11:10:00 +0000

It's our great pleasure to welcome Johanna Westeson (left) as an IntLawGrrls contributor.
Johanna is the Regional Director for Europe in the International Legal Program at the Center for Reproductive Rights, a global legal advocacy organization dedicated to advancing women's reproductive health, self-determination, and dignity as basic human rights. As director of the Center's Europe team, she focuses on the promotion of reproductive rights in Eastern and Central Europe through work before regional and international human rights mechanisms, including work around abortion restrictions, the practice of coerced sterilization, and contraceptive coverage.
Before joining the Center, Johanna worked at the Swedish Foundation for Human Rights, where she was the Program Officer for Latin America and the Caribbean and also responsible for Human Rights Education. Johanna earlier had worked as a consultant to the World Health Organization ’s Sexual Health and Rights Project, as the main researcher on Europe. She produced a report that addressed a number of issues, with a core focus on reproductive rights, and analyzed laws and jurisprudence of European states, the European Union, and the European Court of Human Rights. She also worked with the Swedish Agency for International Development Cooperation in La Paz, Bolivia, where she ran its human rights and civil society program, and clerked at Uppsala District Court, Sweden.
Johanna earned a J.D. from Uppsala University in Sweden, and an LL.M from Columbia Law School in New York, where she was a Fulbright Scholar.
In her introductory IntLawGrrls post below, Johanna offers a critique of recent legislative efforts to regulate sex-selective abortions, and proposes a right-based approach to the issue.

Heartfelt welcome!

Rights-based approach to sex-selection

noreply@blogger.com (Johanna Westeson) — Sun, 22 Jan 2012 09:55:00 +0000

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

A 28-year-old pregnant woman sat in a doctor’s office in Albania with tears streaming down her face. The doctor had just informed her that she was having a girl. While seemingly good news, for this woman it was a personal nightmare. This would be her fourth daughter—a taboo in a society where culture prefers sons. The last time she had a girl, her husband and mother-in-law almost killed her, threatened to kick her and her daughters out of the house. This time, she vowed to risk her life to make sure that the same thing didn’t happen again.
The story, originally reported in Agence France-Presse last November, perfectly illustrates the dilemma that women face in societies worldwide where sons are valued over daughters, and the stigma and violence that occur when women “fail” to produce boys.
Albania and a number of countries have restricted sex-selective abortions and the use of technology for those purposes. But generally speaking, the bans have proven ineffective, and fail to promote an environment in which women giving birth to girls aren’t discriminated against. Instead, they restrict women’s rights, specifically their right to reproductive health services and to live free from violence.
Conveniently, abortion opponents have ignored this line of reasoning, and are increasingly using sex-selective abortion as a platform to advance their agenda in the name of gender equality. Far from liberating women, sex-selective abortion is killing millions of “unborn girls” and magnifying the prejudice and mistreatment of the girls that do make it out of the womb – so the argument goes. And with that, traditional allies of the woman’s movement often fall victim to this disingenuous argument.
Last year in fact, lawmakers in the Parliamentary Assembly of the Council of Europe, led by a well-known Italian anti-choice activist, introduced a motion for a resolution that declared sex-selective abortion as “gendercide,” purportedly to address Europe’s skewed sex ratios. The Assembly appointed Doris Stump (left) of Switzerland, a pro-choice and feminist parliamentarian, as the Rapporteur on the matter.
Although she had very little knowledge on the issue of sex-selection, Stump was asked to explore it further and submit recommendations to the Assembly. Despite attempts—by the Center for Reproductive Rights, for which I work, along with its European partners and the World Health Organization—to convince her to tackle sex-selection more holistically, she delivered a resolution that called for the prohibition of sex-selective abortions, and described the practice as a form of psychological violence against women, ignoring cultural contexts and naively insisting that women are always forced to the practice and would otherwise "never dream" of doing such a thing.
The European Assembly’s resolution exemplifies the pedagogical challenge that sex-selective abortion presents. We’re all outraged by the practice, but without much knowledge, it’s easy to call for its prohibition. In reality, there are many circumstances in which women are severely punished if they give birth to girls, and in that context, an abortion is rational.
Banning sex-selective abortion hasn’t stopped it from happening. Research shows that when abortion services aren’t available, women often resort to unsafe options, increasing their chances of serious and fatal complications. According to Guttmacher Institute, approximately 20 million unsafe abortions occur around the world annually. Virtually all of them take place in developing countries, where contraception is scarce, and very restrictive abortion laws are the norm.
Furthermore, banning abortion services means that a government is forcing many women to carry an unwanted pregnancy to term and, where son preference is predominant, many women are forced into having multiple children until they have a boy.
Within the international human rights community, there’s clear recognition that gender-biased sex-selection is an expression of sex discrimination and should be eliminated. At the same time, there’s recognition that countries have an obligation to guarantee that the practice is addressed in a manner that doesn’t further violate women’s rights, especially their reproductive rights.
Laws and policies that restrict the use of technology for sex-selection purposes or ban sex-selective abortion may be well-intended, but they have the potential to violate women’s rights to life, health, and bodily integrity. In fact, the European Court of Human Rights recently ruled against Poland for allowing doctors to repeatedly deny a woman genetic testing. The Court found that Poland’s failure to provide the woman relevant information about her pregnancy amounted to cruel and inhuman treatment.
Modern technology has indeed facilitated the determination of sex before birth, thus accelerating the problem of gender-biased sex-selection. But the availability of technology hasn’t caused sex-selection to become normalized. It’s a country’s laws, policies and societal practices that relegate women to second-class citizenship and perpetuate customs that favor boys over girls. In Western Europe, for example, where women have achieved considerable gender equality, prenatal technology is widely available and sex-selection is virtually unheard of.
Exchanging one manifestation of inequality with measures that produces more inequality guarantees that women will pay the price (see on-the-ground description of ineffectiveness of sex-selective ban in India in this IntLawGrrls post). Gender equality is hardly the motivation of opponents of abortion rights. Rather it’s a tactical step towards restricting abortion.
This is further underscored in the European Assembly example by the fact that sex-selection in Europe is a fabricated concern. While Parliamentarian Stump’s research did acknowledge skewed sex ratios in four countries, it also concluded that it isn’t a significant or widespread problem.
Gender discrimination is deeply embedded within institutions such as marriage and property inheritance laws. (See examples in this IntLawGrrls post on gendercide in China.) Rather than focusing on one specific manifestation of gender inequality, governments should pass measures that promote the equal value of women, and their equality in all aspects of life through education campaigns and the development of legal frameworks.
It’s equally important that civil society and women’s rights supporters monitor anti-choice efforts to co-opt gender equality. We must develop smart countertactics to expose their real agenda. Such work will involve the pedagogical task of explaining why the practice of sex-selective abortion needs to be combated not in the most obvious way—by banning it—but in ways that do not further violate women’s rights.

On January 22

noreply@blogger.com (Diane Marie Amann) — Sun, 22 Jan 2012 08:04:00 +0000

On this day in ...
... 1992 (20 years ago today), upon takeoff at Cape Canaveral, Florida, the Space Shuttle's STS-42 mission made history when Dr. Roberta Bondar (right) became the 1st Canadian woman in space. (photo credit) Born in 1945 in Sault Ste. Marie, Ontario, Bondar, a Canadian Space Agency Mission Specialist who holds an M.D. in neurology and a Ph.D. in astrophysics, joined 6 other astronauts on an 8-day flight aboard the shuttle Discovery. She has continued a career of public service, including 2 terms as a university chancellor.

(Prior January 22 posts are here, here, here, and here.)

U.S. ICCPR report coy on extraterritoriality

noreply@blogger.com (Beth Van Schaack) — Sat, 21 Jan 2012 11:00:00 +0000

Over the holidays, the United States released its Fourth Periodic Report to the Human Rights Committee, which is charged with monitoring the 1966 International Covenant on Civil and Political Rights, to which the United States became a party in 1992. (Prior filings from the United States are available here.)
Needless-to-say, there is lots of interest in this 693-paragraph report. This and a subsequent post will focus the United States' vision of the applicability of human rights norms:
► Extraterritorially; and
► In time of armed conflict.
The first question, dealt with in this post, is the extraterritorial application of the ICCPR, and presumably other human rights obligations governed by similar scope-of-application language. (As an example, see IntLawGrrl Diane Marie Amann's 2006 ASIL Insight on the U.S. claim to this effect made before the Committee Against Torture.)
The interpretive question turns on the meaning of the second “and” in ICCPR Article 2(1), italicized below:

Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant,without distinction of any kind…

The United States has historically interpreted this provision to mean that the U.S. owes duties only to those individuals who are both within its territory and its jurisdiction. Thus, in its 2005 Periodic Report (which actually encompassed both the Second and Third Reports, as we were in arrears), the United States insisted at ¶ 130:

[T]he obligations assumed by a State Party to the International Covenant on Civil and Political Rights apply only within the territory of the State Party.

This position stayed consistent through at least 2007.
A more expansive interpretation yields the conclusion that the Convention applies to two classes:
► Persons within U.S. territory; and
► Persons within U.S. jurisdiction.
The latter would include,at a minimum, individuals within the effective but extraterritorial control of the United States. A difficulty of this position is envisioning examples of persons who would be within a state's territory, but not its jurisdiction. One option would include individuals on a portion of the territory of the state that is controlled by a rebel or insurrectionist party in a non-international armed conflict.
In ¶ 505 of its Fourth Report, the United States coyly acknowledges its prior position on this point, but also takes notice of three important legal sources setting forth the contrary view. The paragraph states in full:

505. The United States in its prior appearances before the Committee has articulated the position that article 2(1) would apply only to individuals who were both within the territory of a State Party and within that State Party’s jurisdiction. The United States is mindful that in General Comment 31 (2004) the Committee presented the view that “States Parties are required by article 2, paragraph 1, to respect and to ensure the Covenant rights to all persons who may be within their territory and to all persons subject to their jurisdiction. This means that a State party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party.” The United States is also aware of the jurisprudence of the International Court of Justice (“ICJ”), which has found the ICCPR “applicable in respect of acts done by a State in the exercise of its jurisdiction outside its own territory,” as well as positions taken by other States Parties.

Thus the United States took specific notice of:
► 1st, General Comment 31 (2004) on the “Nature of the General Legal Obligation Imposed on States Parties to the Covenant,” in which the Human Rights Committee determined that the second, more expansive, interpretation was the correct one. In ¶ 10 of this General Comment, the Committee wrote:

States Parties are required by article 2,paragraph 1, to respect and to ensure the Covenant rights to all persons who may be within their territory and to all persons subject to their jurisdiction.This means that a State party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party.

► 2d, jurisprudence of the International Court of Justice (namely, ¶ 111 of the 2004 Advisory Opinion on Legal Consequences on the Construction of a Wall in the Occupied Palestinian Territory) finding that the ICCPR is applicable when states exercise their jurisdiction extraterritorially, as in a situation of occupation.
► 3d, the contrary views of other states.
To this list, we can add a number of other judicial opinions, such as the line of cases emerging from the European Court of Human Rights and the Inter-American Court of Human Rights grappling with the reach of the regional human rights treaties.
The Fourth Report's short and humble ¶505 is important; while the United States does not fully denounce its prior views, it does acknowledges that its position is increasingly out of step with the trend of decision.
What a difference a Secretary of State makes…

(Coming up in Monday's post: The United States adjusts course respecting the reach of international human rights law in time of armed conflict)

On January 21

noreply@blogger.com (Diane Marie Amann) — Sat, 21 Jan 2012 08:04:00 +0000

On this day in ...
... 1992 (years ago today), was adopted U.N. Security Council Resolution 732 (Libyan Arab Jamahiriya). The unanimous resolution recalled previous condemnations of the 1988 explosion of a U.S. airliner over Lockerbie, Scotland, and that the following year of a French airliner over Congo-Brazzaville. (photo credit) The Council deplored the refusal of Libya to comply with requests to cooperate fully with its investigation, and urged it again to comply, "so as to contribute to the elimination of international terrorism." In effect, as the BBC reported,

'The United Nations has ordered Libya to surrender intelligence agents accused of the Lockerbie and French airliner bombings.'

(Prior January 21 post are here, here, and here, and here.)