Guest Blogger: Anne Gell

I am pleased to introduce our newest guest blogger, Anne Gell.

Anne is a summer Legal Associate at the Documentation Center of Cambodia (DC-Cam); she discusses her research on provisional detention at the Extraordinary Chambers in Cambodia in her guest post below. She will begin her third year at Columbia Law School this fall, where she is an Articles Editor for the Jailhouse Lawyers Manual and a Kent Scholar. Annie’s experience in field of human rights includes working at Human Rights Watch US Division, Médecins Sans Frontières, Sarai in Delhi, India, and Legal Aid Juvenile Rights in the Bronx. She received her undergraduate degree cum laude with a major in history focusing on 20th century U.S. foreign policy from Columbia University in 2003.

Welcome Anne!

De Facto Segregation of ECCC Provisional Detainees

Thanks for giving me the opportunity to guest blog on my research in Cambodia on the regime of provisional detention within the Extraordinary Chambers (left).
The Office of the Co-Investigating Judges (OCIJ) at the Extraordinary Chambers in the Courts of Cambodia (ECCC) has imposed an unprecedented de facto segregation regime on the five provisional detainees since the beginning of their detention. The detainees are prohibited from interacting with each other with the exception of limited visits between the married couple, Ieng Sary (below right) and Ieng Thirith (bottom right). This means that the detainees’ options for human contact are limited to the prison staff and occasional, OCIJ-approved visits from lawyers and family members. This regime is not only detrimental to the Tribunal’s work because it strains the detainees’ health, but arguably legally impermissible in light of the ECCC Internal Rules and international precedent.
In determining the propriety of coercive measures imposed on provisional detainees, Rule 21(2) of the ECCC Internal Rules requires that the fundamental rights of the detainees be balanced with the necessity of the measure and the gravity of the charged offense. This approach is mirrored in the Regulations of the International Criminal Court (ICC) and the Rules of Detention of the International Criminal Tribunal for the Former Yugoslavia (ICTY).
Though there is little precedent on this issue, the limited precedent available from ICC and ICTY suggests that de facto segregation is rarely proper even in cases involving co-defendants accused of the gravest of crimes. (See Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui at the ICC and Delalic at the ICTY).
In applying the balancing test to the ECCC provisional detainees in light of international precedent, there are many factors weighing against a de facto segregation regime.
► First, unlike the cases of Ngudjolo Chui and Delalic, the ECCC Office of the Co-Prosecutor has not requested segregation of the detainees. Rather the OCIJ has imposed this regime on its own and in a non-transparent manner.
► Second, although the OCIJ has expressed worry that the detainees will collude if allowed to interact, the OCIJ has not publicly identified any concrete evidence of attempted collusion as required under international precedent. Delalic holds that the worry of collusion alone absent concrete evidence is not sufficient to overcome the strong presumption against infringements on provisional detainees’ fundamental rights.
► Finally, there are strong arguments that the segregation regime is a punitive gesture that provides little benefit to the Tribunal. On the one hand, consistent, long-term segregation is likely damaging the psychological health of the detainees, thereby threatening the work of the Tribunal as a whole. On the other hand, the detainees are allowed visits from friends, family, and lawyers. Though these visits might not be frequent enough to compensate for the potential psychological harm caused by the segregation of the detainees, such visits could provide opportunities for the detainees to collude via third parties.
This makes the segregation regime vulnerable to criticism that it is a formalistic measure intended to make the provisional detainees uncomfortable rather than protect the proceedings from prejudice. The Tribunal therefore must carefully consider the legal basis and consequences of a provisional de facto segregation regime, particularly as the Tribunal strives to adhere to the highest standards of human rights and justice.

Really big news about global justice

The last few weeks seem to indicate that international courts are getting some teeth, or, at least, are teething ...
► First, the International Criminal Court’s Prosecutor, Luis Moreno-Ocampo, gets Belgium to arrest Jean-Pierre Bemba, the loser in the 2006 presidential election in the Democratic Republic of Congo and head of one of the more infamous militias in that country. Perhaps to avoid charges of political meddling in DRC politics, Bemba has been charged at the ICC (left) not with crimes at home, but with involvement in mass rapes in the next-door Central African Republic.
► Then the ICC Prosecutor really gets serious, issuing an indictment for the president of Sudan, Omar al-Bashir. (IntLawGrrls posts below, here, here, and here.) That should take some of the wind out of the sails of those ICC skeptics who pointedly asked why, after a nearly 3-year investigation, the ICC had managed only the indictments of a mid-level militia commander and a single Sudanese minister. They asked: Was the Prosecutor focusing just on non-state actors rather than powerful state figures? The Al-Bashir indictment is Moreno-Ocampo’s answer. But it leads to another question: Will the U.N. Security Council use the leverage Moreno-Ocampo has given it to push for real concessions from the Sudanese government, or will it squander the chance?
► Finally, Radovan Karadžić has come in from the cold; he's due to appear in court at The Hague today. (Prior IntLawGrrls post here.) The onetime self-proclaimed president of the Bosnian Serb Republic was arrested by his erstwhile Serbian ex-backers. They are now apparently more interested in securing for Serbia a place in the European Union than in thumbing their nose at the International Criminal Tribunal for the Former Yugoslavia (right).
So far, so good. But it is still true that prosecutions by international courts of high-ranking military and government officials remain few and far between.
The really interesting story is the rise in national-level prosecutions of such officials:
► In the same few weeks, Alberto Fujimori (on whose extradition IntLawGrrls posted here) continued to stand trial in Peru, with military officers confirming that the former president indeed knew of the killings carried out in the name of combating subversion. Fujimori, like Slobodan Milosevic, had delayed the proceedings due to ill-health, but trial is now scheduled to be completed by the fall.
► Then, Argentine courts convicted the Butcher of Córdoba, Benjamín Meléndez, of orchestrating killings and secret death camps during the 1976-83 dictatorship. Since the country’s Supreme Court annulled prior amnesty laws, courts have convicted a number of the top military and police officials, and even a military priest accused of abetting torture. Trials continue throughout the country.
► Next door in Chile, the head of the secret police and his henchmen were convicted of blowing up General Carlos Prats, the former army head, and his wife, in a 1974 bombing in Buenos Aires. And that’s just on one continent. (credit for Chilean Supreme Court photo below left)
Indeed, according to a soon-to-be-published book on trying heads of state, edited by Ellen Lutz and Caitlin Reiger, since 1990, no fewer than 57 heads of state from around the globe have been indicted, at a minimum, for misconduct while in office. True, about half these are corruption cases, not violations of human rights or humanitarian law. True as well, in far fewer cases do the indictments turn into trials and convictions, and fewer still result in actual prison stints. Nonetheless, there is clearly a trend, and it points to the diffuse – but key – influence of the new architecture of international justice on national judges and courts.
That’s the really big news.

'Nuff said

(Occasional item taking context-optional note of thought-provoking quotes.)

Critics claim that Ocampo has imperiled peace negotiations -- but those negotiations were not progressing even before the ICC prosecutor named Bashir.

-- our colleague James C. O'Brien, a principal at The Albright Group, and Presidential Envoy for the Balkans during the Clinton Administration, in a Los Angeles Times op-ed comparing and contrasting this month's application for an arrest warrant against Sudanese President Omar al-Bashir (above left) by International Criminal Court Prosecutor Luis Moreno-Ocampo (IntLawGrrls posts above, here, here, and here) with the 1999 indictment of Serbian President Slobodan Milosevic (above right) by International Criminal Tribunal for the former Yugoslavia Prosecutor Louise Arbour.

On July 31

On this day in ...

... 1998 (10 years ago today), Britain announced that it would ban the use of landmines unconditionally. Legislation passed a month earlier "after public pressure to do so" -- would have permitted "British troops to deploy mines in 'exceptional circumstances.'" On this day, however, that exception was removed. This paved the way for British ratification, on this same day, of the 1997 treaty banning landmines; that is, the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer or Anti-Personnel Mines and on Their Destruction. Britain's action came a month before the 1st anniversary of the death of Princess Diana, a vocal advocate of the treaty.

... 1811, Janie Currie Blaikie Hoge was born in Philadelphia, Pennsylvania. A welfare worker, fundraiser, and wartime nurse, she worked to recruit other nurses to care for wounded Union troops during the Civil War. Hoge wrote of her work in The Boys in Blue (1867) (left). Following the war, she helped to establish the Evanston College for Ladies. Among the leaders of the college was temperance advocate and suffragist Frances E.C. Willard; when the institution merged with Northwestern University, Willard became dean of the university's Women's College.

Sierre Leone Prosecutor on the ICC's Darfur Indictment

For all of us watching the debate generated by the Darfur indictment (prior IntLawGrrls posts here and here), I highly recommend David Crane's July 21, 2008, editorial inthe Baltimore Sun. David (left), who was the Chief Prosecutor of the Special Court for Sierre Leone, opens as follows:

On June 4, 2003, as Liberian President Charles Taylor walked up the steps for the opening ceremony of the Accra Peace Accords in Ghana, I stood in front of the world's press and announced that I had unsealed an indictment charging him with 17 counts of war crimes and crimes against humanity. The international community reacted with praise - and condemnation.
Politicians and diplomats voiced concern that my announcement had jeopardized the newly organized peace process and hopes for stability in West Africa. Some even said that the indictment put lives at risk. Yet five years later, Liberia is stable, and a fairly elected government is in place with a real possibility that it is on the correct path to a sustainable peace under the leadership of the first woman ever elected a head of state in Africa. Mr. Taylor sits in The Hague on trial before a judicial chamber of the Special Court of Sierra Leone.

You can read the whole editorial here.

Off Topic: Journalism ---World War Two and The Birth of Broadcast Journalism

The Edward R. Murrow and the Birth of Broadcast Journalism, Bob Edwards, Wiley Publishing, 168 pages, 2004, $19.95 and Tantor Media Audiobooks,, unabridged on 4 compact disks, $24.95, 2004.

Bob Edwards, host NPR's Morning Edition 1979-2004 clearly and concisely examines the life and times of Edward R. Murrow, who is recognized as the creator of both radio and television broadcast journalism. Moving radio broadcast news from live parades and flower shows, created live broadcasts of unplanned events. Beginning in 1937 Murrow managed CBS radio's European Bureau and within three years became a celebrity with his heart-racing rooftop broadcasts during the Luftwaffe Blitz of England in summer of 1940. The radio audience in parlors and living rooms across the United States heard London being "bombed in real time."

Murrow was a master of finding talent researchers and correspondents. Also, he flew and reported on 25 bombing runs over Europe. He delivered reports on everything from the Allies march to Paris to the liberation of the concentration camps. Returning to the U.S. after the war, Murrow was not idle and gained further historical significance for his radio and television attacks on Joseph McCarthy during 1952-1954. Morrow created a groundbreaking television broadcast entitled See It Now by managing producers and correspondents on location and gathering unrehearsed interviews. Murrow's live remote production, split screens, and use archived and new film was in stark contrast to the usual fair of television news that consisted of the reading of headlines produced by the Associated Press and other newspapers.

Edwards' portrait is of a driven, fearless career journalist who by setting standards so high that modern newsreaders and spin masters, trying to pass themselves off as journalists, are not even in the same ballpark as Murrow. On the audio book, Bob Edwards reads his own work. Undeniably it sounds like a NPR broadcast. Edwards has enhanced the audio book by integrating recordings of Murrow's famous broadcasts from during the Blitz, from a bomber run on Germany, and from the Army-McCarthy hearings.

News---Close Up The Ranks! Center Dress! : The Community Loses One Of the Good Ones

In the month of July, Alan Nolan passed on. Nolan, an R.E.Lee and Iron Brigade scholar was involved in research and discussions concerning historiography. Nolan was sensitive to the myths that had grown around one of the most famous generals of the war. He practiced law in Indiana and brought his research and critical thinking skills to the primary sources. Nolan tipped over Lee's pedestal and brought forth a discussion of the Lost Cause historigraphy that had placed Lee there.

Professor Randall Miller reviewed Lee Considered with the following remarks:

Marching in the tracks of such historians as Bruce Catton, Thomas Connelly, and T. Harry Williams, Nolan tries to unhorse the mythic Lee. In pointing out the contradictions between the legend and the man, Nolan shows that Lee the slaveholder was not antislavery, that the reluctant secessionist endorsed Southern independence, that the general lost the war by his repeated offensive thrusts and provincial vision--and more. Lawyer Nolan's brief challenges all the commonplaces by insisting that we look at the record rather than the legend in viewing the man, and through him, the war itself. Nolan's debunking is less original than he claims, and his own reading of Lee is somewhat idiosyncratic. But he makes a forceful case for rethinking Lee and all the myths his memory has draped over the Lost Cause. A provocative book, highly recommended for university and major public libraries.

New Book ---A Gettysburg Historic House and Confederate Sharpshooters

"In The Eye Of The Storm": the Farnsworth House and the Battle of Gettysburg, Timothy H. Smith, Farnsworth House Publications, 63 pp., maps, photographs, notes, 2008. $9.95.

It was one of CWL's better impulses. While at the Farnsworth House bookstore in Gettysburg this past weekend, I paid $10 for a 63 pp. staple-bound booklet on the historic house. Wincing at the price but justifying it because Tim Smith, Licensed Battlefield Guide, is the author I added it to my book stack. The stack sits next to my desk and is called 'Books about Gettysburg that I've bought in Gettysburg.'

I had just finished Nothing But Glory and wanted a Sunday length article or book. "In The Eye Of The Storm": the Farnsworth House and the Battle of Gettysburg was the right one; I couldn't put it down. Covering the early history of Gettysburg borough, the building of the house and its first families in nine pages, Smith recounts in forty pages the three days of the battle that was fought in the borough and south of The Circle. The Slentz family, who were a tenant family who fled the McPherson farm, moved into the house.

Smith's account of the battle in the borough is highly detailed with the judicious use of first person accounts: civilian, Confederate and Federal. The exchange of gunfire between Federals at the Wagon Hotel and Confederates in the borough's homes is dramatic. Rebel sharpshooters establish posts in garrets and at chimneys; walls that are shared by buildings are destroyed so that Rebels could walk a block on the inside of buildings and not have to step into the street. Federal artillerymen are favorite targets of sharpshooters nested in third floor attics.

Major Eugene Blackford's sharpshooter battalion from Alabama have two fine first person accounts: one from the major and one from the major's brother who was on Stuart's staff. With these two accounts and another one from a Louisiana soldier, Smith offers a clear and concise description of the fight and the civilians caught in the homes that were used as forts. For the Gettysburg Address, the author relies on Harvey Sweeney's account; Sweeney was the owner and occupant of the home which later would be called the Farnsworth House. Smith's standing with the both the Adams County Historical Society and the Center for Civil War Photography is valuable. The booklet offers many photographs of the home and its neighborhood. The manner in which the buildings change over time, especially from 1863 to the present is described and documented through photographs.

Barroom pronouncements among actors who enjoyed the Farnsworth House's tavern during the filming of the movie Gettysburg concludes the booklet. The author's 106notes offer clear evidence of Smith's resolute research, the last of which is a citation for Stephen Lang (aka George Pickett climbing on the bar and declaring that he has finally taken the high ground.

Note: The above photo is not the cover of the book. My computer has Adobe 8 issues today.

News and News Commentary From Dixie---Confederate Army Veteran – And Slave

Cliff Harrington, a writer for the Charlotte Observer, offers a news story (July 19, 2008) and a commentary (July 21, 2008).

Confederate Hero Was Slave, Cliff Harrington, Charlotte Observer, July 19.

Information about Wary Clyburn had been tucked away for years in old records and the memory of his daughter, Mattie Rice. There were records that showed he had been approved to receive a pension in 1926 after letters confirmed he was a Civil War veteran. And there are the memories Mattie Clyburn Rice has from conversations with her father. Wary Clyburn was a slave. On Friday, he was honored by the city of Monroe and Sons of Confederate Veterans as an African American Confederate hero. A diverse crowd of around 200 attended. Wary was owned by Frank Clyburn, a plantation owner in Lancaster County, S.C. He went on to serve in the Civil War as a bodyguard for Thomas Clyburn, son of Frank, and later was a special aide to Gen. Robert E. Lee, documents show. Wary died when his daughter, Mattie, was 8. She was born in 1922. Her father was born about 1841 and died in 1930, according to records cited by Earl Ijames, a curator of the N.C. Museum of History. Various documents spell Wary's name several ways: Werry, Weary and Wary. Rice says the correct spelling is Wary. She was unable to attend Friday's memorial ceremony, even though she had worked for years to gather details about her father. Rice became sick and was taken to a local hospital early Friday.

The ceremony answered many questions. In a statement Friday, Ijames said Thomas Clyburn joined the Confederate army at age 19. Wary then ran away from the plantation and went to join the Confederate Army with Thomas. Many believed the two had become friends during boyhood. Rice this week recalled conversations with her father. “We talked a lot about the war,” she said. “… He told me he just went to war with this fella he grew up with. He said his family wasn't treated like the other slaves around there.” Ijames told the family that on two occasions Wary Clyburn carried Thomas away from deadly fighting and to safety. “Here's a legacy that has endured more than 140 years, through his youngest child and her increase,” Ijames said. “She never wavered in the stories her father told her.

Among the large group of descendants at Friday's ceremony were four of Wary Clyburn's grandchildren: Mary Elizabeth Clyburn Hooks, Countee Hall, Valerie Frazier and Ruth Young. Young received an honorary flag given by the Sons of Confederate Veterans. A new marker now stands at Wary Clyburn's grave in Monroe's Hillcrest Cemetery, with his name and military information for public viewing. As a final part of the ceremony, his descendants filed past his resting place. Each dropped a rose on the grave to honor their patriarch. The youngest was 2-year-old Kai Bryant – Wary's great-great granddaughter.

Confederate Army Veteran –And Slave, Cliff Harrington, July 21, 2008.

Wary Clyburn, the Confederate army veteran, puts a new face on an old standard for which we can measure our character. He was brave and loyal. Clyburn was a slave. He was born about 1841 in Lancaster County, S.C., records show. He died in 1930 in Union County, where he moved after the war. He was honored as a Civil War hero Friday during a ceremony at Hillcrest Cemetery in Monroe. Members of N.C. Sons of Confederate Veterans sponsored the event, along with the City of Monroe. Mayor Bobby Kilgore declared it Wary Clyburn Day. It should be noted that official documents spell his first name several ways: Werry, Weary and Wary. His daughter, Mattie Rice, says the correct spelling is Wary. The Lancaster, S.C., plantation where he was born was owned by Thomas Clyburn. Government records from 1850 show that Thomas Clyburn owned more than 17 slaves, infants to age 60. Earl J. Ijames, curator for the N.C. Museum of History, said there's no way to know how many slaves served in the Confederate army. “They weren't counted because they didn't have full rights and were not paid,” he said. Clyburn didn't allow the slaves he owned to be sold or split up, Ijames said. “That shows some conscience on the part of Thomas Clyburn.”

He also pointed out this conscience was within the context of slavery, one of the cruelest practices in American history. Ijames said many believe Wary Clyburn had grown up with Thomas Clyburn's son, Frank Clyburn. Rice, who was born in 1922, confirmed that claim last week. “We talked a lot about the war,” she said. “… He told me he just went to war with this fella he grew up with. He said his family wasn't treated like the other slaves around there.” Ijames said during the slavery era, it was not unusual for slaves and owners' children to grow up together and, in some cases, develop relationships and feel loyalty to one another.

Wary served as bodyguard for Capt. Frank Clyburn in Company E of the 12th regiment from South Carolina. He carried Frank on his shoulders to rescue his boyhood friend from intense fighting. He also served as a special aide to Gen. Robert E. Lee, according to documents that his daughter has. Even today Wary Clyburn gives us a clear role model of honor and bravery under the most trying circumstances. Few things have challenged the human spirit more than enslavement and war. Through Mr. Clyburn we get a snapshot of the complex relations that existed during that time. He was loyal to the men who had shown him kindness and that loyalty carried over even into a war where they could have been cast as enemies. His actions show he had a deep understanding of what it meant to be a man of character. I can't honestly say I understand Mr. Clyburn's depth of loyalty and bravery. I can say it's a shame history hasn't given us a better recording of others like him. Wary Clyburn, the Confederate army veteran, puts a new face on an old standard for which we can measure our character. He was brave and loyal.

Photographs: Charlotte Observer, Charlotte, North Carolina

Ruth Young, granddaughter of Wary Clyburn, receives the Confederate flag from a Civil War re-enactor at a ceremony Friday honoring Clyburn, who was a slave and a Civil War hero. The ceremony was held at Hillcrest Cemetery in Monroe.

Source:
July 19, Charlotte Observer, and July 21, Charlotte Observer.

CWL: The news writer does not state that Wary Clyburn was enlisted in the Confederate army but calls him a Confederate army veteran because he received a pension. Was that a Federal pension or a North Carolina pension? He also calls Wary Clyburn a bodygaurd for Captain Clyburn. I bet Captain Clyburn called Wary Clyburn a servant. Also, I bet General Lee called Wary Clyburn a servant, and not "my special aide."

Guest Blogger: Hannah Buxbaum

It's IntLawGrrls' great pleasure to welcome Hannah Buxbaum (left) as today's guest blogger.

Associate Dean for Research and Professor of Law at Indiana University School of Law in Bloomington, Hannah teaches Comparative Law, Contracts, International Business Transactions, and International Litigation. Her publications, which have appeared in English and in German, treat issues of of private international law and international litigation and jurisdiction. Her guest post below examines U.S. courts and what she call the "foreign-cubed" class action.

Hannah earned her B.A. and J.D. degrees from Cornell University, Ithaca, New York, and an LL.M. from the University of Heidelberg in Germany. Before joining Indiana's faculty, she worked in the New York and Frankfurt offices of Davis Polk & Wardwell. A member of the Executive Committee of the American Society of Comparative Law, Hannah serves as co-book review editor of the American Journal of Comparative Law, is a member of the International Academy of Comparative Law and the American Law Institute, and has served on the Executive Council of the American Society of International Law (the last body, coincidentally, is discussed today in another post below).

Hannah would like to dedicate her guest post to a transnational pioneer: her mom, Wiebke Buxbaum, who was born and raised in Germany. She received her doctorate in law from the University of Cologne and then an LL.M. from the University of California at Berkeley. After deciding to make her home in the United States, she "started over," as Hannah puts it, earning a J.D. from Berkeley and joining Brobeck Phleger & Harrison, where she specialized in corporate and banking law and became the 1st woman to make partner at that San Francisco firm.

The "foreign-cubed" class action & U.S. courts

My thanks to IntLawGrrls for inviting me to provide this guest post about my recent article, Multinational Class Actions Under Federal Securities Law: Managing Jurisdictional Conflict, published in the Columbia Journal of Transnational Law.

The project grew out of some earlier work on the topic of transnational regulatory litigation, which considered the circumstances under which domestic regulatory law might be applied to curb global economic misconduct. This piece focused on a particular kind of transnational regulatory case: the “foreign-cubed” securities class action. These lawsuits involve fraud claims brought by foreign investors against foreign issuers, based on harm arising out of investment transactions on foreign securities exchanges. While such claims appear insufficiently connected to the United States to warrant application of U.S. securities law, courts have in some cases incorporated them into class actions brought by U.S. investors against the same issuer.

This article draws on a study of 45 foreign-cubed claims brought between 1996 and 2005. It looks at the arguments made by foreign investors who seek to justify the application of U.S. law to their claims –- arguments that use the interconnections among the world’s capital markets as the basis of an expansive theory of legislative jurisdiction. It also analyzes judicial disposition of such claims at various stages of litigation (including class certification).

Ultimately, the article concludes that the current jurisdictional framework used in securities cases, which relies on outdated and ambiguous “conduct” and “effects” tests, is not up to the task of managing the sort of regulatory conflicts that foreign-cubed claims present. It therefore supports a jurisdictional limit in such cases based on the location of the relevant investment transaction.

Take the lead

The American Society of International Law is looking for a few good leaders.
ASIL's Nominating Committee's seeking nominations for 1 academic member to be President-Elect, 2 academic- and 1 practitioner-member Vice Presidents, 9 Executive Council members, and 8 nonvoting, honorary Counsellors. Deadlines are coming up fast: for President-Elect nominations, it's this Friday, August 1; for all others, it's August 15. All terms will commence at the Society's annual meeting, to be held March 2009 at the Fairmont Hotel in Washington, D.C.
Meanwhile, ASIL's premier publication, the American Journal of International Law, invites nominations for members of its Board of Editors, to be chosen "based primarily on scholarship and creativity, as demonstrated in books, articles, and other written work appearing over a period of years, including but not limited to publications in the Journal," as well as on "areas of expertise or professional perspective or discipline." Deadline is September 15, 2008.
Details on how to nominate yourself or your colleagues for any of these positions are available here.

On July 30

On this day in ...
... 1893 (115 years ago today), Fatima Jinnah was born in Karachi, in what was then British India and is now Pakistan. Raised by her older brother after her father's death when she was a child, Jinnah was educated at Dr Ahmad Dental College, and in 1923 she opened her own dental clinic in Calcutta, "at a time when taking up a profession was considered inappropriate for girls from Muslim families." Eventually she gave up her practice to care for her extended family. She accompanied her brother, Mohammad Ali Jinnah, "the leader of Muslim India" and 1st leader of independent Pakistan, on official visits; she told his story in her posthumously published book, My Brother (1987). In 1941 she helped form the All India Muslim Women Students Federation. In 1965, she ran unsuccessfully for President of Pakistan. Jinnah, who died 2 years later in the city of her birth, was honored on the stamp at above left in 2003.
... 1942, half a year after the United States entered World War II, President Franklin D. Roosevelt signed into law the Navy Women's Reserve Act, establishing the WAVES -- Women Accepted for Volunteer Emergency Service -- as a women's auxiliary agencyfor the U.S. Navy. "By the end of the war, over 84,000 women served in WAVES with 8,000 female officers, which constituted 2.5% of the US Navy's personnel strength."

Read On! "The Dark Side"

(Read On! ... occasional posts on writing we're reading)

The Dark Side: The Inside Story of How the War on Terror Turned into a War on American Ideals (Doubleday, 2008) by Jane Mayer (below right) is making a big splash this summer. It’s landed on the New York Times bestseller list and sent its author to countless interviews, including appearances last week with Bill Moyers and David Letterman.

Despite its grim title, Mayer’s book does more than call out villains (a fairly despicable David Addington stars as Public Enemy No. 1, but many others lurk alongside). In both her book (its dedication professes her “love of American history and admiration for those who have fought to fulfill the promise of the country’s ideals”) and interviews (on Letterman she said that there are “many good guys in the military, and in the FBI”), Mayer is careful to give credit to those who resisted “the dark side”.

Among those who come out best in her account are uniformed military lawyers. Mayer documents how the JAG corps was bypassed, ignored, and isolated while key decisions were made about military commissions, the laws of war, and the rules regarding the treatment of prisoners. This is not a new interpretation; Mayer’s narrative echoes charges made repeatedly in press coverage (including her own work in The New Yorker, about which IntLawGrrls earlier posted here and here) of the White House’s frequent dismissal of military legal expertise. For example, in the drafting of the military commission order, the services’ top lawyers were “marginalized,” in the words of Rear Admiral Donald J. Guter (88) (Guter is now Dean of Dusquesne Law School in Pittsburgh), and ultimately blind-sided by the rash proposal to authorize a new version of military commissions. The infamous “torture memos” triggered shock and outrage from many military lawyers, Mayer writes on p. 232:

The memos from uniformed lawyers to the politically appointed general counsel were brimming with barely concealed disbelief at the direction the Justice Department was proposing for soldiers to take.

Mayer draws on interviews, government reports, legal analyses, and an already extensive body of scholarship to build a damning critique of post 9/11 legal conclusions and political actions. But not yet answered is the central historical question: Why did the U.S. adopt legal and military practices so wrongful in the face of such powerful opposition? Judge advocates and other officials who realized, in real time, that grave mistakes were being made could not stop the Bush administration despite what Mayer casts as truly valiant efforts.

The hubris of a few misguided individuals may be enough explanation for now. But eventually, we have to reconcile the impotence of Mayer’s “good guys” with her faith in American ideals-- and her hope for the future.

(Cross-posted at Legal History Blog)

'Nuff said

(Occasional item taking context-optional note of thought-provoking quotes.)

Terrorism: In the State of the Union address, the new president should immediately renounce the term "War on Terror" and reframe terrorism as a violation of international norms.

-- Among the many recommendations for the U.S. administration that will begin on January 20, 2009, contained in Rebranding America, a project by students at Los Angeles' Occidental College, directed by their professor and our colleague, Derek Shearer, U.S. Ambassador to Finland from 1994 to 1997. (Aside: Presumptive Democratic Presidential nominee Barack Obama spent his 1st 2 years at Oxy before transferring to Columbia.)
IntLawGrrls welcomes blogreaders' own recommendations for the new administration!

On July 29

On this day in ...

... 1968 (40 years ago today), media coverage focused on a new encyclical entitled Humanae Vitae, in which Pope Paul VI (right) rebuffed the recommendation of a majority of a Pontifical Commission, and thus "confirmed a ban on the use of contraceptives by Roman Catholics." Among the pope's "the most controversial" acts, it was reaffirmed in 1995 by a successor, John Paul II. This year's anniversary has stirred the issue again: among those commenting are "[m]ore than 50 dissident Catholic groups from around the world," which last week published, in an Italian newspaper, "an open letter asking Pope Benedict XVI to lift the church's ban on birth control." This group focused on HIV/AIDS as a reason for change; other commentators cited opposition among Catholic laypeople, sometimes by "majorities exceeding 80 percent," as well as links between overpopulation and global warming. Meanwhile, in the Philippines, Manila's archbishop supported the ban with this argument:

'If there is discipline in the marital bed, then there is discipline in the streets, there is discipline in schools, there is discipline in the government.'

... 1993 (15 years ago today), an Israeli appellate court overturned the conviction of John Demjanjuk. The court found insufficient evidence to support charges that Demjanjuk had committed war crimes as "Ivan the Terrible, a gas chamber operative at the death camp Treblinka, in Poland." Demjanjuk had been extradited to Israel by the United States. On his return, the United States undertook to deport him; however, no country has agreed to accept the Ukraine-born man, who'd immigrated to the United States in 1951. Earlier this month, a Spanish court announced that it would proceed with a war crimes action against Demjanjuk and 3 others. Initiator of the suit -- brought pursuant to the principle of universal jurisdiction -- was the NGO Equipo Nizkor. (credit for 1987 photo of Demjanjuk on trial in Israel)

Classic Still In Print---Nothing But Glory: Pickett's Division at Gettysburg

Nothing But Glory:Pickett's Division at Gettysburg, Kathleen Georg Harrison, Thomas Publications, 178 pages, photographs, drawings, maps, notes, bibliography, index, $12.95.

Kathy Georg Harrison, Gettysburg NMP historian and ranger, has immersed herself in the park's archives and the holdings of states, universities and the U.S. army to produce a classic work that has been reissued twice since its first publication in 1987. Nothing But Glory:Pickett's Division at Gettysburg should rest on the same shelf of any Gettysburg enthusiast, along with Stewart's Pickett's Charge: A Microhistory of the Final Attack at Gettysburg, July 3, 1863, Priest's Into the Fight: Pickett's Charge at Gettysburg and Hess' Pickett's Charge--The Last Attack at Gettysburg .

Harrison closely links her narrative to primary sources. Often the soldiers' voice comes through; CWL read parts of Harrison's book while at Spangler's farm and while sitting under a tree at the Roger's house site on Emmitsburg Road. Covering the division's June 1863 activities very quickly, she starts the detailed narrative on July 1 at Chambersburg and end the narrative on July 4 at Bream's Mill/Black Horse Tavern which was the hospital for Pickett's division. Harrison's book is essential reading for those taking the licensed battlefield guide test. CWL wishes that Harrison would produce a comparable work on the Pettigrew-Trimble assault.

Upcoming Discussion---James Buchanan and the Political Crisis of the 1850s

Heavy hitters of history will converge on Franklin and Marshall College, Pennsylvania to run the bases on James Buchanan, 15th President. A symposium organized by the James Buchanan Historical Society and the Lancaster County Historical Society and funded by the Richard C. von Hess Foundation will convene September 19-20 at Wheatland (the Buchanan homestead) and Franklin & Marshall College.

The political crisis of the 1850s will set forth by William W. Freehling (Virginia Foundation for the Humanities) and Michael Holt (University of Virginia). Because of the likely divergence of opinions between Freehling and Holt, John W. Quist (Shippensburg University) will moderate the discussion) on Friday evening at Wheatland. Slated for Saturday morning at Franklin & Marshall College, the constitutional crisis of 1857 will be discussed along with Buchanan's foreign policy. The Dred Scott Supreme Court decision and Bleeding Kansas will be presented noted writers Paul Finkelman, Nicole Etcheson and John Belohlavek. Before and after lunch Buchanan will be taken apart as political party leader and cabinet manager. The rebellions by the Mormons in Utah and the Secessionists in the South will be reviewed, as well as the various perceptions by the North of the secessionist movement. Jean Baker, Daniel Crofts and William Shade, each a noted scholar will be the presenters.

An interesting feature of the symposium is that secondary teachers receive in-service credits. High school teachers will meet with the speakers and will bef provided with lesson plans and classroom materials. Lancaster County Community Foundation and the James Buchanan Foundation will host the teacher/scholar discussion. Early registration of $25 is encouraged because a cap has been set on the number of attendees. Secondary, undergraduate and graduate student have the registration fee waived. A lunch is available; the cost is $10.50.

Visit the wwwsite of James Buchanan's Wheatland to view the registration materials. Wheatland and Franklin & Marshall College are about an hour and a quarter east of Gettysburg, Pennsylvania.

... and counting ...

(Occasional sobering thoughts.) Amid news that:
► the mid-July death by natural causes of Air Force Technical Sergeant of Jackie L. Larsen (below right), a 37-year-old paralegal from Tacoma, Washington, marked the 100th death of an American woman servicemember in Iraq since a U.S.-led coalition invaded that country in March 2003; and
► officials of the United States and other NATO countries "have launched investigations into three separate U.S.-led airstrikes that Afghan officials say killed at least 78 civilians this month";
here's the available count of casualties in those 2 conflicts in the 5 weeks since we last reported. According to Iraq Body Count, between 86,312 and 94,174 Iraqi women, children, and men have died in the conflict. That's an increase of between 1,589 and 1,760 deaths in the last 5 weeks. According to the U.S. Defense Department, 4,124 American servicemembers have been killed in Iraq. Total coalition fatalities: 4,438 persons. That's 24 servicemember deaths in the last 5 weeks, all but 1 of them Americans. Military casualties in the conflict in Afghanistan stand at 560 Americans and 329 other coalition servicemembers, an increase of 37 and 3, respectively, in the last 5 weeks.
Typically "...and counting..." has not included figures on civilian casualties in Afghanistan, for the reason that we've been unable to find a source for consistent counting like those linked above for other counts. But the news of the new investigation offered some figures on civilians in Afghanistan:

An estimated 698 civilians were killed in the first six months of this year, compared with 430 during the same period last year, the United Nations says. Of those, 255 were killed by NATO forces.

On July 28

On this day in ...
... 1945, in a move that New York Times reporter James B. Reston termed the payment of "a first installment on an old debt," the U.S. Senate voted 89-2 to ratify the Charter of the United Nations (right). The "debt" to which Reston referred: the Senate's 1920 rejection of a post-World War I precursor to the post-World War II Charter, the Covenant of the League of Nations. Debate in 1945 lasted "only six days," compared with the nine-month Senate debate over the League. Voting against the Charter were 2 Republicans, Henrik Shipstead of Minnesota and William Langer of North Dakota; the latter maintained that the Charter "would mean 'perpetual war' and the 'enslavement' of millions of poor people from Poland and India."
... 2003 (5 years ago today), Lady Valerie Goulding (below left) died in a nursing home in Shankill, County Dublin, Ireland. Born in England in 1918, she'd moved to Ireland following her marriage to "a fertiliser manufacturer and art collector, Sir Basil Goulding." In Dublin in 1951, she founded the Central Remedial Clinic for the care of 2 persons with physical disabilities; it now serves 4,000 patients. This launched her life's work on behalf of the disabled. She served by appointment to Seanad Éireann, Ireland's Senate, from 1977 to 1981; lost 2 bids for election to the Dail, Ireland's principal parliamentary chamber; and was considered as a candidate for Uachtarán na hÉireann, President of Ireland, in 1983. (photo credit)

Peace through Pastry

I would like to follow up on Jaya's horror story of Friday with a story of one attempt to "humanize the other". As Jaya points out, making human rights norms applicable to immigration authorities both means and requires humanizing immigrants. In Europe, human rights norms are applicable to immigrants and asylum seekers through the European Convention on Human Rights, though their enforcement often leaves much to be desired. As human rights activists well know, humanizing the other - including immigrants and, as Hope discussed yesterday, persons with disabilities - is a process of education key to developing and enforcing human rights norms. For example, Amnesty International and other such groups publicize individuals' stories to make abstract legal concepts concrete. Humanizing the other is also key to making and maintaining peace, and a group of French Jewish and Muslim women called the Bâtisseuses de Paix (Peace Builders) has taken on the task of humanizing each other and their respective communities (though they don't use this term) in a delectable way--by making pastry.
One thing I've learned about "Islamic" terrorism is that it is fueled or reinforced by the Israelo-Palestinian conflict. In reading about the bâtisseuses, I learned that this conflict also fuels hostility between the Jewish and Muslim populations in France (the largest such communities in Europe), as French Jews identify with Israelis and French Muslims identify with Palestinians. To build solidarity between the two groups, former journalist Annie-Paule Derczansky founded the group in 2002 after a trip to the Middle East during the second intifada revealed that despite the breakdown of political communication, women's mixed Israeli-Palestinian cultural groups remained intact and functioning. Back in Paris, Derczansky created a space where Jewish and Muslim women could share recipes in an attempt to block the transfer to France of the conflict in the Middle East. The problem for detractors of the group's method is that its golden rule is to discuss anything and everything but that conflict: they see only hypocrisy and little to no chance of having any affect on resolving issues between Jews and Muslims, either in France or in the Middle East. Supporters such as Evelyne Berdugo, head of the Jewish women's organization Coopération Feminine, see it as "practical work on the ground....[No] big words [or] speeches, but action with regular people." One participant sees it as separating the Israelo-Palestinian conflict from one's daily life in France so that it doesn't pollute relationships with neighbors, and they all seem to recognize that their work, like their pastry, is for their children. If it helps them grow up without knee-jerk hostility based on a foreign conflict, perhaps they will be able to address that conflict in a spirit of neutrality and solidarity. And maybe given time, even if the group's golden rule doesn't bend, some the participants will take on the "elephant in the room" in another setting. As a staunch supporter of grassroots projects to bridge religious or cultural divides, even with flour and butter, to reduce humans' inhumanity to humans, I say "pass the cornes de gazelle" (image credit).

McCain on Nuremberg redux for bin Laden

CNN reports that the Republicans' presumptive nominee for President supports some kind of international prosecution for Osama bin Laden should that al Qaeda leader be captured. Specifically:

Sen. John McCain on Friday said as president he would consider bringing Osama bin Laden to justice through a Nuremberg-like international trial.

... 'We have various options. The Nuremberg Trials are certainly an example of the kind of tribunal that we could move forward with. I don't think we'd have any difficulty in devising an international -- internationally supported mechanism that would mete out justice. There's no problem there.'
McCain said it would be a 'good thing to reveal to the world the enormity of this guy's crimes, and his intentions, which are still there.'

Unclear what kind of trial the Senator from Arizona (above right) means by "a Nuremberg-like international trial," nor why he'd rule out a domestic trial for a man whom Mary Jo White, then the U.S. Attorney in Manhattan, indicted a decade ago. Interesting nonetheless.

On July 27

On this day in ...
... 1857, in Mount Pleasant, Ontario, Canada, a daughter, Ann Augusta, was born to suffragist physician Emily Howard Stowe and her carpenter husband, John Stowe. In 1883 the daughter married Dr. John Benjamin Gullen and, moreover, earned her M.D. from the Faculty of Medicine at Victoria University, Toronto. Augusta Stowe-Gullen was the 1st woman to graduate from a Canadian medical school (left). Stowe-Gullen was active in suffrage, temperance, and other social movements, "and she succeeded her mother as President of the Dominion Women's Enfranchisement Association in 1903." She was awarded the Order of the British Empire in 1935, 8 years before her death in Toronto. A medical professor and practitioner at numerous hospitals in Canada, she was a founding member, in 1909, of the Women's College Hospital in Toronto, site of this anecdote:

One day, a visitor remarked upon the hospital's extensive female staff and asked whether everyone in the hospital was female. 'Of course not,' Gullen replied. 'Half the babies born are male.'

... 1953 (55 years ago today), in a purpose-built hall at Panmunjom, a village on the de facto border dividing the northern and southern portions of the Korean peninsula, representatives of 16 U.N. member states signed an armistice "ending hostilities in the three-year-old Korean war." The truce document was not a final peace accord:

... [T]hough the shooting would cease within twelve hours after the signing, only an uneasy armed truce and political difficulties, perhaps even greater than those of the armistice negotiations, were ahead.

The agreement remains to this day the lone basis for cessation of the conflict.

Multidimensional Human Rights: Disability Rights and the Global South

(Part II in a series on the implications of the new Convention on the Rights of Persons with Disabilities)

Are disability human rights a priority only for the peoples of the Global North? Don’t governments and activists in the Global South have more important human rights issues to prioritize (among them international trade inequities; war, armed conflict, and the trade in small arms that fuels them; the lack of affordable food, housing, and clean water for the poor; torture and sexual violence; and trafficking in people)? (Photo: Market stall owner in Uganda courtesy of "Disability Rights in Uganda Research Blog")
In reality, no government, international organization, or NGO will be able to develop effective legal or political measures to fully address any of those issues without also taking into account the rights, perspectives, and contributions of persons with disabilities (PWD).

The Heights of Disability Access
Recent news stories about Isaac Lidsky, who is said to be the first blind law clerk to work for the United States Supreme Court are inspiring. Lidsky obtained the highly-competitive position after attending top schools and working for the U.S. Department of Justice. Similarly, the recent appointment of David Paterson, who is legally blind, as Governor of New York brought attention to the heights that have been and can continue to be achieved by individuals with disabilities.
Like other U.S. lawyers, judges, political leaders, and law professors who are blind or have vision impairments, they use some of the wide range of adaptive strategies and technologies available to increase independence and access to work, social, and community life. Depending on the nature and extent of vision issues, we use helpful devices that range from the low-tech (the ubiquitous white cane or guide animals) to the high-tech (software and scanners that allow computers to enlarge and read printed text aloud).

First World Privileges?
But are disability rights a luxury issue that only rich Northern states can afford to address? Do the vast majority of PWD even in wealthy countries have access to their basic needs, much less the heights of professional status or media attention? Should disability rights be treated as low priority for those working toward economic and social development and those fighting discrimination and abuse based on racial, ethnic, gender, class, and migration status?

“Weeded Out”
The startling statistics below (excerpted from a recent United Nations Fact Sheet) leave no doubt that the response to all of these questions is a resounding “no”:
► Around 10 per cent of the world’s population, or 650 million people, live with a disability. They are the world’s largest minority.
► Eighty per cent of persons with disabilities live in developing countries, according to the UN Development Programme (UNDP).
► The World Bank estimates that 20 per cent of the world’s poorest people are disabled, and tend to be regarded in their own communities as the most disadvantaged.
► Women and girls with disabilities are particularly vulnerable to abuse. A small 2004 survey in Orissa, India, found that virtually all of the women and girls with disabilities were beaten at home, 25 per cent of women with intellectual disabilities had been raped and 6 per cent of disabled women had been forcibly sterilized.
► Mortality for children with disabilities may be as high as 80 per cent in countries where under-five mortality as a whole has decreased below 20 per cent, says the United Kingdom’s Department for International Development, adding that in some cases it seems as if children are being “weeded out”.
► An estimated 386 million of the world’s working-age people are disabled, says the International Labour Organization (ILO). Unemployment among the disabled is as high as 80 per cent in some countries. Often employers assume that persons with disabilities are unable to work.
► For every child killed in warfare, three are injured and permanently disabled.

Legal, Political, and Moral Obligations
The rights of persons with disabilities are human rights, inherent in their humanity, and to be universally promoted and respected for moral as well as legal reasons. States in both Global North and Global South have recognized the norms of the (now 60-year-old) Universal Declaration of Human Rights and most have also ratified the core treaties that comprise the International Bill of Rights. These legally binding rights apply to PWD wherever they may live. States and the international community have an obligation to respect, protect, fulfill, and promote them for all human beings.
The practical issues involved in implementation cannot serve as an excuse for the failure to recognize or implement the rights of PWD. International law recognizes disparities in economic capacity among states and therefore allows for “progressive realization” of certain rights. But as has been demonstrated, “progressive realization” does not mean “non-realization.” And protecting any human rights (civil, political, economic, social, or cultural) was never a cost-free enterprise.
Often, reasonable accommodations within a specific context are less costly than employers and non-disabled people are led to believe. For example, the UN Fact Sheet notes that a

U.S. survey of employers conducted in 2003 found that the cost of accommodations was only $500 or less; 73 per cent of employers reported that their employees did not require special facilities at all.

Economic disparities among states and inadequate technical capacity and infrastructure are realities that pose significant obstacles for both PWD and non-disabled people. Of course, global, regional, and national struggles over the equitable distribution of natural and economic resources continue. Those struggles must be conducted in a context in which the fundamental rights and well-being of people are the primary object.
Still, each government, rich and poor, must also take on the good faith responsibility for ensuring at least that those resources that are available are distributed in a non-discriminatory way, that targeted policies are put in place through law and education to address discriminatory attitudes toward PWD, and to provide reasonable accommodations that allow PWD to participate fully in employment, education, housing, health care, family life, sport, and other aspects of social and political life in their home countries. Such an approach contributes to economic and social development rather than undermines it.
Article 32 of the Convention on the Rights of Persons with Disabilities (CRPWD) provides for the mainstreaming of disability rights in the creation and implementation of international development programs. The international community (and the individuals and groups who can hold our governments and institutions accountable--see "We Can Do" and "People with Disabilitites--Uganda" websites) should therefore commit to assisting (and learning from) developing countries with regard to the economic resources, the mutually beneficial transfer of culturally-specific information and technology, and other assistance needed to make human rights for PWD a reality.
The non-profit sector has begun to recognize the importance of disability human rights in the Global South. For example, Executive Director Diana Samarasan recently announced the creation of a Disability Rights Fund dedicated to helping countries in the developing world implement the new convention.

Global South Participation
As reported in Part I of this series, the CRPWD was negotiated, adopted, and entered into force rapidly and with widespread acceptance by the international community. Although delegations from the Global North were influential, the negotiation process included active input from developing countries. NGOs from South and North built an important coalition that energized the creation of the convention.
The many official and NGO delegations that were particularly active in the negotiation process included those from Mexico, China, Ireland, Thailand, Canada, Germany, Japan, South Africa, Uganda, India, South Korea, Jamaica, Venezuela, Slovenia, Colombia, Lebanon, Sierra Leone, Morocco, New Zealand, Sweden, Mali, Serbia-Montenegro, and Russia. Click here for the archives of the negotiations and here for the daily summaries. (Photo: South African human rights lawyer and World Bank Advisor on Disability, Charlotte McClain-Nhlapo )
Some countries from the Global South, such as Mexico, played high profile roles in the negotiations. As previously reported, Jamaica was the first country to ratify the new convention. China is preparing to host the Paralympics this Fall, although its participation in the CRPWD process and hosting of the event is undermined by its own record of continuing human rights violations.
Let’s hope that the multidimensional nature of disability human rights will gain much needed attention as jurisprudence and action around the CRPWD develops. Social justice and human rights demands it, for PWD and for all.

(Next: Some Resources on Disability Human Rights)