African lessons on terror detention

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

On 7 March President Barack Obama signed an executive order facilitating the indefinite detention of a group of Guantánamo prisoners. As IntLawGrrl Beth Van Schaack posted, the order introduces a new system of periodic review of Guantanamo prisoners as well as the resumption of military trials.
Human rights activists view this as a step backwards.
I believe South Africa's Apartheid experience has a special relevance and resonance for the so-called ‘war on terror’.
Much of the current concern regarding the impact of security legislation on human rights centers on the treatment of detainees in places of detention. "The Regulation of Detention in the Age of Terror - Lessons from the Apartheid Experience", an article that my co-author James Fowkes and I published in 2009 in the South African Law Journal, considered the regulation of detention during Apartheid to see what principles or lessons can be gleaned from that experience that can be useful for regulating detention in the context of terrorism.
Following a summary of the most important security legislation during Apartheid, the article examines the nature of the Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa (Robben Island Guidelines). These Guidelines, drawn up in 2002 by the African Commission on Human and Peoples' Rights (logo below left), aimed at the punishment and prevention of torture in Africa. It is the aim of the Robben Island Guidelines to assist African countries in designing systems that will be effective in combating torture. It is our contention that the Apartheid experience reveals several respects in which they are not an adequate guide. Whereas the monitoring mechanisms of the Guidelines should be taken seriously, they can be improved upon.
The paper examines the behaviour of the Apartheid judiciary and its performance in providing oversight of the executive’s actions. It then turns to consider the performance of the Apartheid judiciary in two areas key to court regulation of torture:
► The approach to the admissibility of evidence, and
► The weighing of fact in adjudicating torture allegations.
We conclude that even in authoritarian systems threats to national security (whether real or imaginary) seldom fall exclusively within the domain of the executive. It is therefore not naïve to believe that the law can have a positive effect on the way detainees are treated. We offer proposals in the article, as a contribution to the African effort to design systems that will be resilient to practices such as torture in security situations. We believe our proposals have a wider significance and can be a resource upon which lawyers all over the world can draw.

The International Criminal Court and the Transformation of International Law? Maybe not quite yet . . .

(Delighted to welcome back alumna Leila Nadya Sadat, who contributes this guest post from Paris)

This week, unexpectedly, the Security Council voted unanimously to refer the situation in Libya to the International Criminal Court. That is cause for celebration; but celebration tempered with a strong dose of caution and even some real pessimism about the future.
On the plus side, the ICC is now becoming an international institution that is increasingly seen as a real partner in the maintenance of international peace and security.
Also, on the plus side, as Diane Marie Amann mentioned in an earlier IntLawGrrls post, the U.S. voted for the Resolution, rather than simply abstaining from vetoing it as the U.S. had done with Resolution 1593, referring to the Court the situation in Darfur.
Finally, I entitled this blog entry after my 2002 book of the same name, because one sees in the Resolution glimmers of change — that war is not the only answer to international conflict, that law is a relevant consideration in its resolution and that justice may be a possibility. That would be cause for celebration indeed.
At the same time, there are many worrisome elements in the Resolution which bode ill for the Court and for the referral. The Resolution itself retains two outrageous Bush-administration provisions (while admittedly discarding a third).
First, while deciding in paragraph 5 that the Libyan authorities “shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor” (even though Libya is not a State Party to the Court) the paragraph continues that “States not party to the Rome Statute have no obligation under the Statute. . . ” and, in paragraph 6, “decides, that national, current or former officials or personnel from a State outside [Libya] . . . shall be subject to the exclusive jurisdiction of that State” for any acts they may commit relating to UN operations in Libya. What an extraordinary display of double standards, given that several members of the Council who voted for the Resolution are not parties to the Rome Statute! Can a rule of law be a rule of law if it applies to some but not all?
The Resolution also provides that the ICC, not the United Nations, shall bear all the expenses relating to the referral, apparently as a way of appeasing the U.S. Congress, many of whose members continue to threaten the Court. So the United States and other non-Party States (China, India, Russia) are using — but not paying for — the ICC as a tool of coercive diplomacy. This is not good news.
Finally, the ICC is already struggling to convince African states that it is not a Court directed at them. The first four referrals all seemed quite sensible; but the fifth, the situation involving Kenya, was far more troublesome, given that the Prosecutor undertook the case on his own initiative, and at least some questioned whether it met the legal standards necessary in terms of subject matter jurisdiction, gravity and complementarity to be pursued at the ICC rather than in Kenya or otherwise. (Prior IntLawGrrls posts available here.) There were also serious questions raised at last summer's ICC Review Conference at Kampala as to whether it would not be preferable to see a proprio motu referral of the Colombia or Afghan situations. A sixth referral involving an African state — even in a case involving the clear commission of atrocities — may encourage the ICC’s detractors in Africa, and the double standards evinced by the Resolution’s text do not assist in this regard.
In the view of this writer, the Libya referral, in and of itself, is a good thing. The atrocities taking place as reported in the media seem clearly to warrant ICC intervention. But the failure of the great powers to fully support this Court, and to use it cynically when and as they please, rather than committing their money, time, energy and political support to helping it grow strong and endure, feeds the perception that this Court is not about justice, but about power, undermining its legitimacy. Thomas Friedman recently opined that President Barack Obama’s 2009 speech in Cairo (above) strengthened the case for democracy in the Arab world as he led others through the salutary example of his own life. Would that Obama will find the same courage to champion the International Criminal Court, and to show the world that Americans believe in accountability too.

(Cross-posted at Leila's An American in Paris blog)

ICC referral: sweet, or bittersweet?

Some sweet irony in the referral of the Gadhafi regime to the International Criminal Court.
As watchers of the Hague-based court at left well know, longtime Libyan leader Moammar Gadhafi long has been a thorn in the ICC's side.
It's not just that Libya's not a party to the Rome Statute of the ICC. As the map below shows, the same holds true of many of its Arab neighbors -- and of certain very large states to the west and east of Libya.
Rather, Libya's particularly prickly relation to the ICC stems from Gadhafi's efforts to exerts his brand of leadership on the African continent.
To cite an example: It's no accident that, as Pittsburgh Law Professor Charles Jalloh, among others, has noted, the 1st African Union resolution condemning the ICC's pursuit of Sudanese President Omar al-Bashir occurred at a meeting in Libya.
Libya also is a member of the Human Rights Council, formed in 2006 as a means better to promote human rights within U.N. member states and throughout the world.
The Human Rights Council broke with Libya on Friday, as we posted here and here. Reports that the Gadhafi regime had ordered aerial attacks and street-thuggery against its own, unarmed civilians compelled the Council unanimously to urge the General Assembly to suspend Libya's U.N. membership.
Last night the Security Council went giant steps further, not only imposing sanctions and an arms embargo, but also referring the Libya matter to the ICC. The vote was unanimous among the T-10 and P-5 alike: ICC nonparty China put aside earlier-reported misgivings, and the United States, another ICC nonparty, openly supported an ICC referral for the 1st time ever.
Here're the pivotal paragraphs of Security Council Resolution 1970 (February 26, 2011):

The Security Council,
....
Acting under Chapter VII of the Charter of the United Nations, and taking measures under its Article 41,
....
ICC referral
4. Decides to refer the situation in the Libyan Arab Jamahiriya since 15 February 2011 to the Prosecutor of the International Criminal Court;
5. Decides that the Libyan authorities shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution and, while recognizing that States not party to the Rome Statute have no obligation under the Statute, urges all States and concerned regional and other international organizations to cooperate fully with the Court and the Prosecutor;
6. Decides that nationals, current or former officials or personnel from a State outside the Libyan Arab Jamahiriya which is not a party to the Rome Statute of the International Criminal Court shall be subject to the exclusive jurisdiction of that State for all alleged acts or omissions arising out of or related to operations in the Libyan Arab Jamahiriya established or authorized by the Council, unless such exclusive jurisdiction has been expressly waived by the State;
7. Invites the Prosecutor to address the Security Council within two months of the adoption of this resolution and every six months thereafter on actions taken pursuant to this resolution;
8. Recognizes that none of the expenses incurred in connection with the referral, including expenses related to investigations or prosecutions in connection with that referral, shall be borne by the United Nations and that such costs shall be borne by the parties to the Rome Statute and those States that wish to contribute voluntarily; ...

The resolution zeroes in on Gadhafi -- and what little seems left of his regime in the wake of many ministerial defections to the antigovernment side.
Worth noting: The caveat concerning a national of a nonparty state present at the scene by authorization of the Council -- presumably, a person deployed as a U.N. peacekeeer. Evidence that such a person took part in criminal behavior must be referred to the state of nationality; by the terms of ¶6, absent a waiver the ICC would have no jurisdiction over such a malefactor. (Thanks to our colleague Kevin Jon Heller (his OJ post here) for pointing out my initial, erroneous interpretation.)
Some cause for concern: The foisting of the costs of ICC investigation onto the ICC and states that choose to contribute. That provision in ¶8 hints at certain lingering reluctances, and serves to remind of the deaf ear that the Security Council has turned to the ICC Prosecutor's pleas for aid in effecting the arrest of international fugitive and still-incumbent President Bashir.
It's to be hoped the Security Council's newfound spine will translate into helping the ICC as it endeavors to respond responsibly to yet another weighty referral. It's also to be hoped that the ICC will rise to the "test," to quote our colleague William Schabas; that is, it "must inspire confidence in its ability to provide a meaningful, significant and above all prompt response to the crisis."
If not, today's irony may prove more bitter than sweet.

(Credit for 2010 map indicating: in grey, states, like Libya and China, that have neither signed nor ratified the ICC Statute; in orange, states, like the United States, Sudan, and Russia, that at one time signed but never ratified; and in green, full states parties to the ICC Statute. Though slightly out of date -- it shows 111 rather than the current 114 states parties -- the map is accurate with regard to the states discussed in this post, a version of which is cross-posted at The Huffington Post.)

Africa-based international law projects

(Delighted to welcome back alumna Bonita Meyersfeld, who contributes a 2-part series of guest posts on international law in Africa. Part 2 is below; Part 1, published yesterday, is here.)

Having described the overall work of the Southern and Eastern African Regional Centre for Women’s Law at the University of Zimbabwe, I continue in this post with descriptions of research in progress:
► Makanatsa Makonese (left), a Doctor of Philosophy Candidate, is examining Zimbabwe’s Post-Independence Land Reform Laws and Policies and Their Impact on Women’s Right to Agricultural Land: A Critical Analysis of the Fast Track Land Reform Programme from 2000 and Beyond.
This research seeks to assess the availability or otherwise of a legal, policy, and institutional framework governing the Fast Track Land Reform Programme in Zimbabwe. The focus is on women and their right to access, own, and control agricultural land. The effect over the years of the country’s property laws in general, and land laws in particular, will be critically examined. The goal is to establish whether there have been any efforts during the implementation of the fast track land reform programme to break away -- away from a system that subjugates women in property ownership and toward one that recognises women as equal partners in national economic, social, and political development and transformation.
A primary focus of the research is the recognition that the fast track land reform programme was and is not just about parcelling out land but also about: creating social classes; developing jurisprudence around land ownership and reform in Zimbabwe; and setting up centres and sources of power that are critical in shaping the country in various ways. The position of women in the matrix and the country’s level of compliance with international human rights standards and best practices therefore have to be examined.
The nuance of the work is its engagement in a rights analysis in a context of rights violations; namely, the land grabs and concomitant displacement of landowners.
► Research by Renifa Madenga (left), also a Doctor of Philosophy Candidate, is entitled Using Women’s Voices/Experiences To Interrogate The Efficacy Of The International Criminal Justice System on Rape: The case of Rwanda 1994 Genocide. (credit for photo (c) Robert H. Jackson Center)
Her study explores the lived reality and experience of rape survivors of the 1994 Rwandan genocide. It is sited in the web of fears, needs, relationships, and anxieties that affect survivors of rapes committed during the Rwandan genocide, as well as their interactions with the international criminal justice system at the International Criminal Tribunal for Rwanda.
Using the voices and experiences of survivors and witnesses, the study interrogates the efficacy of the justice system. Its major questions: Does the system acknowledge and condemn the egregious abuses suffered by victim survivor witnesses? Does it recognize and addresse the needs, fears, and aspirations of those survivor witnesses?
The researcher, Madenga, works as an Appeals Counsel in the ICTR Office of the Prosecutor, and chairs that office's 3-year-old Sexual Violence Committee.
► Annette Mudola Mbogoh, another Doctor of Philosophy Candidate, is researching The 2007 Post-Election Violence As A Spring Board For Peace, Reconciliation And Reparation: A Case For The Participation And Involvement Of Women In Mombasa, Kenya.
The study investigates the participation of women in Mombasa in peace, reconciliation, and reparation processes through Kenya's Truth, Justice and Reconciliation Commission. Women suffered gross human rights violations in recurrent electoral violence in Mombasa -- in 1992, in 1997, and in the unprecedented 2007 general elections. (Prior IntLawGrrls posts available here.) Women have been internally displaced, lost their loved ones, their property, and their businesses. They are survivors of physical violence and rape. However, their voices, needs, and concerns have been sidelined in the current transitional justice process in Kenya (flag at right). The Truth, Justice and Reconciliation Commission presents an opportunity for women’s voices, injustices, and stories to be heard, investigated, documented, and redressed in the ensuing reparation programmes.
Against this backdrop, this research investigates the level of participation of women in the unfolding truth commission process, as well as the factors hindering women’s active involvement. It seeks both to document injustices committed against women by virtue of their sex and to identify priority concerns and preferred reparations on the part of survivors. It interrogates the question of truth-telling versus justice. The study highlights the importance of reparations to achieve true reconciliation and the extent to which women’s multiple identities influences their choice between collective and individual reparations. The study explores the politics of representation amongst women in a very polarized and ethnicized community. It furthers the debate on the right to truth, which has been expounded by the institutions of the inter-American human rights system. These arguments are hinged on the new Constitution of Kenya, which enshrines women’s right to equality and representation in legislative bodies through reservation of special seats. Finally, the study recommends implementation of a gender perspective in peace and reconciliation efforts, as is espoused in international instruments such as U.N. Security Council Resolutions 1325 and 1820.
► Under examination by Catherine Makoni is The Impact of the Political Crisis in Zimbabwe on Women’s Right to Protection of the Law: An Investigation into the Handling of Cases of Politically Motivated Rape from 2000-2009.
Makoni's research investigates how cases of politically motivated rape have been dealt with, if at all, within the justice system of Zimbabwe (flag at right). The objective is to interrogate the duty of the state to protect women, and therefore its role to provide sufficient and meaningful redress. The research undertakes an empirical assessment of what assistance victim survivors of rape have received from both state and nonstate actors -- including officials of their own political party, who have undertaken to protect party members from acts of violence and intimidation by the ruling party. The study further seeks to influence responses by all these actors.
Rape was used as a tool for political coercion during the election periods in 2000, 2002, 2005 and 2008. The political crisis had an impact on how cases of politically motivated rape were dealt with at multiple levels. In brief, the State failed in its duty to protect women. The perceived inviolability of the perpetrators, as a result of their perceived political affiliation, determines whether allegations of rape are reported, investigated, prosecuted, and adjudicated. The law as presently formulated is not sufficient to cover the total scope of rape as it occurs when used as a tool for political coercion.
► Rosalie Kumbirai Katsande, a Lecturer at the Centre, is Exploring the Potential of Laws and Procedures Governing Business Entities in Facilitating Women’s Entrepreneurial Development in the Horticultural Sector of Zimbabwe.
Inspiring this research is a passage in Peasants, Traders and Wives: Shona Women in the History of Zimbawe 1870 – 1939 (1996), in which Dr. Elizabeth Schmidt, Professor of History at Loyola University Maryland, writes:

When the Jesuit father A Hartmann visited the Shona Chief Chipanga in about 1891, he asked the chief how numerous the people where including women and children, the chief reportedly answered, 'women are not counted'. He then took a handful of dust from the ground and said, 'that is the woman. Hartman concluded that women were regarded as almost nonexistent.

In her own research project, Katsande explores women entrepreneurs in the horticulture sector of Mashonaland East Province of Zimbabwe. Her work interrogates the appropriateness for the development of business regimes by government authorities for women in rural areas. In an effort to determine the appropriateness of current such regimes, the study traces the economic history of Zimbabwe and shows how women’s economic initiatives have been marginalized by historical processes. Laws designed during colonial governance continue to inform and limit women’s entrepreneurial potential and development.
Historically, state officials discouraged Zimbabwean women from settling in the towns and at the mines. The officials opposed the growth of a permanent and potentially explosive African population in the urban areas, and encouraged women and children to subsidize male wages through agricultural production at rural homesteads. State officials expected rural-based women to bear the social costs of production -- caring for the sick, disabled, and retired workers -- while raising the next generation of labourers. Innovation by women was deeply affected by legislative and policy restrictions.
Against this backdrop, the study considers the current government’s people-centred development approach from an African feminist perspective, which, inter alia, focuses on empowering African women to improve their own lives.
The study reveals challenges to community income-generating projects initiated by the Zimbabwean Ministry of Women Affairs, Gender and Community Development. These are reported to have failed to address women’s economic needs; indeed, they present more of a burden, as they add work on already overworked women.
Women in the areas of study are running potentially viable horticultural ventures. The profitability of these ventures is dependent on agricultural support and training; however, this is not being received. Instead, women in these communities are presented with artificially constructed income-generating projects.

These are some of the impressive projects under way at the Centre. Perhaps of primary importance is the investigation of the realities of individual lives and how to link them into the international human rights agendas through national legal and policy frameworks.

Centre for women's law in Africa

(Delighted to welcome back alumna Bonita Meyersfeld, who contributes a 2-part series of guest posts on international law in Africa. Part 1 is below; Part 2 is here.)

I recently attended a workshop at the Southern and Eastern African Regional Centre for Women’s Law (right). Primarily a postgraduate teaching and research institution, SEARCWL focuses on issues related to women’s multiple interconnections and intersections with the law in all its pluralities. It’s run by Professor Julie Stewart (below left) of the Faculty of Law at the University of Zimbabwe.
Among the Centre’s features is a Masters in Women’s Law programme which focuses on using a human rights compliance and implementation framework to assess, promote, implement, and conduct research on the rights of women’s and girls.
I was amazed at the quality of work being done and the far-reaching impact of each student’s work. Each research project was intellectually sound, academically consistent with international developments and grounded in principles of international law.
I came away with a sense that the work being done in this small location in the heart of Harare will probably have some of the most important impacts in bringing international human rights law theory to communities in Africa. Above all, because it is based on a ‘grounded theory of research’ which challenges assumptions in an honest and liberating way, the work being done at SEARCWL really does have the potential to change the application of laws to women’s lived experiences. Topics include:
► Political rape against supporters of a certain political party in Zimbabwe;
► Deficiencies in the prosecutions of gender crimes at the International Criminal Tribunal for Rwanda, a study being undertaken by an ICTR prosecutor;
► Women’s access to water in the “grabbed” land in Zimbabwe; and
► The experience of women in and after ethnic killings in 2007 in Kenya. (prior IntLawGrrls posts available here)
The Centre hosts some of Africa’s finest developing academics, and is a source of scholarly work which integrates the advancing academic theories in international law with the communities that international law academics often theorise about but never actually meet.
Specifically:
► In teaching, researching, reforming, and implementing human rights, law reform and laws as they affect women, the Centre seeks to undertake a holistic examination of all aspects of a problem. Each and every piece of research undertaken must examine the human rights implications of the problem; it must examine the constitutional and legal implications within the laws of the country being researched. A gender perspective (and not a women’s perspective) must be a fundamental part of the research plan, including an analysis of how men and women are affected by the conditions surrounding the identified problem.
► All and any research conducted under the Centre's auspices must be grounded in the realities of the lives of people. To this end, the Centre works on developing theory and methodology in tandem. The best illustration of this is the research and theorizing cycle, which helps students to see where they fit into the intellectual processes, but which also informs how they should move forward in any research process. This is illustrated by the diagram below.
► Most research adopts the international and regional human rights frameworks. Local constitutions and national laws are evaluated for compliance. This framework also allows for comparison between countries in the region and internationally.
The Centre sees nothing exceptional in what it does. It views itself, rather, as using the various capacities of human rights, from aspiration to litigation, to drive forward benefits for women and girls while recognizing the needs of men and boys. In so doing, it tries to build synergies that positively benefit both sexes and both genders.
In tomorrow's post, I will set forth projects through which the Centre endeavors to achieve these goals.

Campaign to Ban FGM Up & Running

More than 100 million girls and women have been subjected to female genital mutilation/cutting (FGM/C) (see here for a taxonomy), primarily in parts of Africa, the Arabian Peninsula (especially Yemen) and Southeast Asia (especially Indonesia and Malaysia). (The map, at right, of the prevalence in Africa and Yemen is from the World Health Organization). Given worldwide patterns of migration, these girls and women, and the practice, are now found all over the world. Three million girls are at risk of the practice every year. Only 19 countries in Africa specifically prohibit the practice, although other countries claim that their laws on assault and battery may be invoked to counter the practice.
In September, 2010, a coalition of non-governmental organizations launched an International Campaign to Ban Female Genital Mutilation. On November 15, 2010, political leaders from 42 countries called for an end to the practice in connection with an appeal placed in the International Herald Tribune. A major goal of the campaign, which has recruited support from a number of "First Ladies" of countries where the practice is prevalent, is to convince the 65th General Assembly to pass a resolution condemning the practice. The theory for seeking a U.N. Resolution is as follows:

A Resolution of the United Nations General Assembly banning female genital mutilation worldwide will be a pivotal moment in the fight to bring an end to the practice, providing the recognition that FGM is a violation of fundamental human rights. The gravity and the dimensions of this violation demand the attention of the international community as a whole and require that international measures be put in place to eliminate it.

A Resolution with an explicit ban on female genital mutilation will help to complete the shift of perspectives on FGM from a problem of "public health" or a "cultural" problem, to its universal recognition as a human rights violation and a form of violence against women.

A resolution is also important, because the major human rights treaties are silent on FGM per se, although there is some euphemistic language that clearly invokes the practice. For example, the Convention on the Elimination of Violence Against Women (CEDAW), with its equality paradigm, makes no mention of violence against women, but Article 5(a) does oblige states parties

To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women...

In addition to recognizing "the right of the child to the enjoyment of the highest attainable standard of health," Article 24(3) of the Convention on the Rights of The Child is more pointed than CEDAW; the former obliges states parties to take

all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children.

Similarly, Article 21 of the African Charter On The Rights And Welfare of the Child requires states to

take all appropriate measures to eliminate harmful social and cultural practices affecting the welfare, dignity, normal growth and development of the child and in particular:

a) those customs and practices prejudicial to the health or life of the child; and

(b) those customs and practices discriminatory to the child on the grounds of sex or other status.

Only the "Moputo Protocol," The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, names the practice directly when it specifically compels states parties to prohibit

through legislative measures ... all forms of female genital mutilation, removing certain private parts of young girls and women, as well as making scars on their bodies.

You can sign the appeal here. A blog on FGM/C is available here. The image above right (from the Orchid Project, dedicated to banning the practice) states:

To Educate a Girl is to Educate a Nation - Stop Excision.

Hear, hear.

Decolonization dance

Indépendance cha-cha is the lively name Le Monde has given to the history of French decolonization featured in this multimedia presentation.
With the run of the cursor you can stream through time, clicking to stop when the spirit moves. Examples:
► Listen to the rallying song Débout les Zouaves while reading about World War I (1914-1918), during which French forces included more than 200,000 persons from colonies in sub-Saharan Africa and Madagascar -- more than 25,000 of whom died in the conflict.
► The Colonial Exposition -- and the Counter-Exposition mounted by André Breton and other surrealists -- both held in Paris in 1931.
► Publication of Peau noire, masques blancs (1952) by the Martinique-born psychiatrist and anticolonial theorist Frantz Fanon (depicted not only in a photograph but also via audio of a lecture he gave).
► The securing, in rapid succession in 1960 and 1961, of independence by many former French colonies in Africa; followed by occasional French interventions ever since.
► 2007 accusations of corruption by leaders in certain African countries, about which IntLawGrrls posted.
► Video of a 2007 speech in Senegal by President Nicolas Sarkozy -- that that left "Africans ... seething."
Worth your time to give cha-cha a spin.

On October 13

On this day in ...
... 1862, Mary Henrietta Kingsley (top left) was born in Islington, England. She received no formal education but was taught German by her father, a traveler and writer, because it then was the language of medical research. Kingsley taught herself from the many books in her father's library. At age 29 her parents died within weeks of each other; thereafter what had been a vicarious life of travel became a real one. Kingsley ventured out in 1893, "[d]ressed in a stiff black skirt and blouse, with high buttoned shoes and a perky hat." She explained her choice of clothing thusly:

'You have no right to go about Africa in things you would be ashamed to be seen in at home.'

Kingsley would make a number of journeys to West and Central Africa, bring back to England new animals, and write books that increased English knowledge of the continent to Europe's south -- and unlike missionaries of the time, she defended indigenous practices, such as polygamy. Among her bestsellers was Travels in West Africa (1897). Kingsley died of enteric fever in 1900, while serving as a nurse in the Boer War in South Africa.

(Prior October 13 posts are here, here, and here.)

On September 20

On this day in ...
... 1960 (50 years ago today), the United Nations admitted 14 newly independent States -- Cyprus plus 13 African countries, Cameroon, Central Africa Republic, Chad, Dahomey (today, Benin), Gabon, Ivory Coast, Malagasy Republic (Madagascar), Niger, Republic of the Congo-Brazzaville, Republic of Congo-Leopoldville (Democratic Republic of Congo), Somalia, Togo, and Upper Volta (Burkina Faso). As a result of this admission, predicted The New York Times, "The voting balance will have shifted decisively from the big 'cold war' superpowers to the smaller nations." At the end of the month, flags of the new members were raised (right) at U.N. headquarters in New York. (photo credit)


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

Guest Blogger: Claire Moore Dickerson

It's IntLawGrrls' great pleasure to welcome Claire Moore Dickerson (left) as today's guest blogger.
Claire is the Senator John B. Breaux Professor of Business Law at Tulane University Law School in New Orleans, Lousiana, and also a permanent visiting professor at the University of Buea in Cameroon. She has conducted considerable research in that country and elsewhere in Africa, especially the Ivory Coast and Senegal. Her scholarship -- including the co-authored Unified Business Laws for Africa (2009) -- is noted for its application of socioeconomic principles to business-related areas and for its focus on the intersection of commerce and human rights.
In her guest post below, Claire discusses her article, forthcoming next January in the American Journal of Comparative Law; it examines business law and informal-sector entrepreneurs in Sub-Saharan Africa.
Claire teaches Business Enterprises, International Business Transactions, Contracts, and a Comparative Corporate Governance Seminar. She came to Tulane from Rutgers University School of Law, Newark, New Jersey, where she was Professor of Law, Dickson Scholar, Schuchman Fellow, Co-Director of the Global Legal Studies program, and holder of the Visiting Lowenstein Chair. She also taught at the law school as St. John's University.
She holds an A.B. magna cum laude from Wellesley College, a J.D. from Columbia University, where she was a Stone Scholar, and an LL.M. in Taxation from New York University. Before entering law teaching she was a partner at the New York office of Coudert Brothers, and later at Philadelphia's Schnader Harrison Segal & Lewis.
She's active in several professional organizations, including the Law & Society Association and the American Society of International Law, and has served on the Executive Committee of the Section on Socio-Economics of the Association of American Law Schools.
In a further guest post below, Claire dedicates her contribution to 2 foremothers, Maître Alice Roullet-Piccard and Dr. Dorothea May Moore.

Heartfelt welcome!

Sub-Saharan development & business laws

(Thanks to IntLawGrrls for the opportunity to contribute this guest post on research to be published as "Informal-Sector Entrepreneurs, Development and Formal Law: A Functional Understanding of Business Law," 59 American Journal of Comparative Law (January 2011), as well as my dedication below to two foremothers)

While discussing the policies of the prior US administration towards his country, a respected Senior Barrister in Cameroon trotted out the old adage:

'Give people fish, and you feed them for today. Teach them to fish, and you have fed them for a lifetime.'

He was, of course, asking that donor institutions and donor states provide tools that reinforce independence rather than mere handouts. This perspective does seem consistent with a trend by the World Bank, among others, to encourage business, including smaller businesses.

Indeed, prodded by economists seeking to encourage development by facilitating business, this international financial institution has over the past half-dozen years paid very serious attention to the role of business laws. Consider, for example, the World Bank’s “Doing Business” reports, annual compilations of studies focused on the contribution of law to the business environment in emerging economies.

It is easy for us in the global North, especially as we endure the deepest financial crisis since the Great Depression, to be cynical about the ability of business laws to facilitate development. Business laws have failed to protect the overall business environment, including the availability of credit.

As we consider what regulations to impose on the largest financial and other companies here, politicians and economists are contemplating the long-term impact on the entire business community. Thus, small businesses should care about the regulations constraining the most powerful actors in their economy. Still, their daily ability to work in sanitary, lighted, safe environments, and to expect the machinery of government to support their commercial contracts, continues to be protected.

In Sub-Saharan Africa,

► To what extent can law restrain the excesses of the most powerful agent, typically the state, while facilitating business on the ground?

► To what extent can laws help create a business environment that most closely mimics that of the global North — where, in the best of circumstances, the most powerful actors are adequately controlled?

The Sub-Saharan business climate is, of course, fundamentally different.

In Sub-Saharan Africa, the informal sector represents 40-60% of gross domestic product, according to a study by Friedrich Schneider. International Labor Organization figures state that this sector employs as much as 93% of non-agricultural workers.

The informal sector thus is highly important. Yet formal law does not penetrate easily or predictably there. For this reason, simple transplantation of classic business law from the global North will not be sufficient to protect and support the business either of an informal-sector-market woman or street vendor, or even of the many business people who have a foot in both the formal and informal sectors.

The focus has to be on functionality.

The goal is to serve the informal sector with laws that accomplish there what classic business laws do for the smaller businesses of the global North. Specifically, laws should increase the predictability of transactions while limiting abuse from government and other powerful agents.

The attack should be two-pronged.
► Formal law both can constrain formal-sector actors, such as some landlords transacting with informal-sector businesses, and can mandate that formal-sector actors provide pro-business realities that Northern businesses enjoy, including sanitary work environments. Precisely because these actors are in the formal sector, they are subject to government regulation — even if the landlord is in fact the government.
► The second prong still cannot directly affect the informal-sector nano-entrepreneurs, those self-employed workers who typically operating alone or with family, and with very modest sales. These workers will not be directly affected because, almost by definition, they are at best unpredictably subject to formal laws and regulations. On the other hand, nano-entrepreneurs do tend to have a legal regime, or a quasi- legal traditional regime, that affects businesses.

This second prong, in turn, deploys two strategies to allow formal law to have as direct an impact as possible on the informal sector.
►► The first strategy aimed at the informal sector is to have formal laws that reinforce existing business norms. These laws are the most likely to support effectively a North-style predictability, since the informal-sector nano-entrepreneurs are primed to comply.
►► The second strategy aimed at the informal sector emphasizes the importance of encouraging coordination of consumers of law. This strategy is especially important when the applicable legal system is highly centralized — as is typically the case in Sub-Saharan Africa. (Discussion of relatively developed countries and their formal economies may be found in Law & Capitalism: What Corporate Crises Reveal about Legal Systems and Economic Development around the World (2008), by Columbia Law Professors Curtis J. Milhaupt and Katharina Pistor.)

Laws promoting coordination include West and Central Africa’s Economic Interest Group (specifically, Sections 869-885 of the OHADA Commercial Companies and EIG Uniform Act), as well as other laws that promote cooperatives. A case in point is the self-coordination effort in the Ghanaian chocolate industry, described here. (credit for photo of woman in Ghana holding fair-trade chocolate) (Prior IntLawGrrls post on problems in the chocolate industry.)

In short, the additional strategy aimed at the informal sector workers is to facilitate the formation of cooperatives.

The goal is for business-related laws to achieve in Sub-Saharan Africa the functionality that classic business laws offer, in the best of times, to businesses of the global North.

'Nuff said

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

We have witnessed with shame the horrible events that occurred in Rwanda, Sierra Leone, Somalia and even here in Kenya. Thousands of Africans have been killed and displaced, women raped and forced to live as sex slaves, property destroyed and communities displaced.
As a Kenyan, and as an African woman, I can affirm that whether it is here in Kenya or in Darfur, in the Democratic Republic of Congo, in the Central African Republic or in Uganda, the need for justice is universal. The ICC is bringing us hope that we can finally see the fulfilment of the right of the victims to learn the truth, to see the perpetrators of these crimes tried, and to receive reparation. The only reason we might fear ICC is if we are guilty.

-- The 2004 Nobel Peace Prizewinner, Dr. Wangari Maathai (above left), in an op-ed, which she published yesterday in the Nairobi-based Daily Nation, reflecting on the work of the Kampala International Criminal Court Conference. (credit for photo by Martin Rowe)

Kampala Update: Stocktaking, Aggression

(Another in IntLawGrrls' series of Kampala Conference posts)

KAMPALA, Uganda – I last provided an update on the International Criminal Court Review Conference at the conclusion of the stocktaking discussions. Yesterday, several documents (available here) related to the stocktaking events were adopted:

► A resolution on the impact of the Rome Statute system on victims and affected communities,

► A resolution on complementarity,

► A moderator’s summary on the peace and justice discussion,

► A declaration on cooperation, and

► A summary of the roundtable discussion on cooperation.

Enforcement of sentences

As well, a resolution on strengthening enforcement of sentences – an initiative of Norway – was adopted. This resolution recognizes that there may be states that are willing to accept persons sentenced by the ICC, but which cannot enter into sentence enforcement agreements with the ICC because their prisons do not meet "widely accepted international treaty standards governing the treatment of prisoners," as required by Article 103 of the Rome Statute. The resolution encourages other states, and international and regional organizations, mechanisms or agencies, to cooperate with the interested state to help it bring its prisons up to international standards. The idea is that, if there is more cooperation among states in this respect, more states will be able to enforce ICC sentences, and convicted individuals will be able to serve sentences in prisons in a region nearer their homes. To date, the ICC has entered into sentence enforcement agreements with Austria, Belgium, Denmark, Finland, and the United Kingdom.

Aggression

The beginning of this week marked a turning point in the Review Conference. Attention is now squarely focused on the negotiations respecting the crime of aggression, about which IntLawGrrls have posted frequently this past year. Two days in a row, the Chair has issued a Conference Room Paper on the crime of aggression, putting forward language on the exercise of jurisdiction gleaned from state comments and views. The June 7 Conference Room Paper incorporated aspects of a proposal made by Argentina, Brazil and Switzerland. Canada and Slovenia have also put forward proposals on the exercise of jurisdiction. (Many documents available here.) Another Conference Room Paper might be issued today, based on yesterday’s country statements made in response to these two proposals. The Chair of those negotiations, Prince Zeid Ra'ad Zeid al-Hussein, Jordan's Ambassador to the United States and nonresident Ambassador to Mexico, expects that they will become quite intense as the end of the conference draws near. Accordingly, he asked all delegations to ensure that they are represented on Friday, even if the Review Conference goes late into the night (he said this because some participants have flights on Friday).

Additional events

Finally, I wanted to mention that there have been a number of fantastic side-events taking place at the Review Conference:

► IntLawGrrl Susana SáCouto has already blogged about the release of the report on “Case-based Reparations at the International Criminal Court” by the War Crimes Research Office at American University Washington College of Law.

► Another side-event to take note of is the launch by the ICC and the International Bar Association of the Uganda-specific “Calling African Female Lawyers” campaign. This national campaign, which is a part of a broader international six-month campaign, aims to encourage experienced female lawyers from Uganda to play a crucial role at the ICC by representing victims or defendants in proceedings before the Court. Over the next six months, applications from qualified African female lawyers – including Ugandan lawyers - will be given priority.

FGM: The American Academy of Pediatrics Weighs In

Recently, according to the New York Times, the American Academy of Pediatrics suggested a policy change that would allow American doctors to perform "a ceremonial pinprick or 'nick'" on girls "if it would keep their families from sending them overseas for the full circumcision." (See the new policy here). Female genital mutilation (FGM) is a complex, heart-wrenching issue that has occupied feminists both within and outside of Africa for many years. (For an excellent description of the issue, see IntLawGrrl Hope Lewis's article here) The health consequences for girls can be severe, even fatal. It is a deeply entrenched cultural practice in some places within Africa. The human rights community - at international and local levels - has agitated for recognition of FGM as a violation of women's human rights, and it is recognized as such in a number of international human rights documents. But still it continues. Some countries, such as Ghana, have passed legislative bans - although many of these have proven to be completely ineffective. More often than not, simply prohibiting the practice does not work. A few activist strategies, however, have enjoyed some success in curbing the practice in some areas. For example, a community in Kenya has popularized an alternative initiation rite, one that does not involve genital cutting. Some communities have successfully framed the issue as one involving significant health issues for girls rather than as one that violates the human rights of girls. I am a human rights activist/scholar, but I am also a pragmatist. Although I would love to see some recognition of the ways in which FGM violates women's rights, if an approach that emphasizes health resonates with local communities and works to combat the practice, then it makes sense to frame the issue in terms of health. So is it wise of the AAP to change its policy to one of tolerance? As with most things, the devil is in the details. As some feminists will legitimately argue, there is a serious risk of legitimizing the practice if it is medicalized and accepted within organizations such as the AAP. However, if we are truly talking about a "ceremonial pinprick" that will have cultural meaning within the community and take the place of more dramatic and dangerous cutting, then it might not be a bad solution in those limited circumstances. The bottom line, however, is that for any solution to work on a large scale, it will have to come from and have meaning within the communities that actually practice FGM.

Write On! Sexual violence/conflict in Africa

(IntLawGrrls welcomes back alumna Doris Buss, who contributes this Write On! guest post regarding a call for papers for an upcoming conference she's organizing)

"Sexual Violence and Conflict in Africa" is the subject of a 2-day workshop to be held May 5 & 6, 2010, at my home institution, Carleton University in Ottawa, Canada.
At this event, which is supported by the United Nations University, we plan to bring together academics and activists to initiate a detailed, multi-disciplinary, and multi-sectoral discussion of sexual violence and conflict in Africa. The workshop will be a mix of paper presentations and roundtable discussions to explore the social, political, economic, and cultural aspects of sexual violence and conflict in Africa. The intent is to move beyond descriptions of the phenomenon to a discussion of causes, consequences, patterns and possible solutions.
Paper proposals and applications for participation are invited from academics, practitioners (including non-governmental organisations) and service-providers. To foster a high-level, focused discussion, space is limited, and not all papers and participants can be accommodated.
To apply, please send in a paper proposal setting out the title, an abstract of fewer than 200 words, and a brief explanation of where your paper/research/area of expertise fits with the following workshop themes:
► 1. Understanding Wartime Sexual Violence: What is known about the patterns and processes of sexual violence in difference conflict zones in Africa? To what extent can and should comparisons be made across (or even within) conflict settings? What research is being done/data gathered and by whom? What work is being done on developing and reflecting on research methodologies and analytical frameworks for examining wartime sexual violence?
► 2. Sexual Violence and Ethnic/National conflict: What is the relationship between conflict, forms of conflict, identity markers, and patterns of sexualized violence. How have gender and ethnicity been invoked, contested and redefined through wartime rape? How do pre-conflict customs and norms explain the potential for, or resistance to wartime sexual violence? How is ethnicity and race understood and deployed by conflict actors, and the international community seeking to intervene in (or after) conflict? How do ethnic and gender categories function in a post conflict context to shape access to social resources by victims of sexual violence?
► 3. Militarism, masculinity and small arms: How are norms of masculinity invoked or changed through different types of militarism? What role do small arms, or changing patterns of armed conflict, play in structuring certain types of masculinity? How, in turn, does this impact on the conditions for and patterns of sexual violence? How are African masculinities portrayed in Western conceptions of and responses to wartime sexual violence?
► 4. The political economy of sexual violence: This panel explores the complex link between political economy, environment and wartime sexual violence. What role do multinational corporations, foreign direct investment, aid, and resource extraction play in creating the conditions for, and international responses to, wartime sexual violence?
► 5. Peacekeeping and Peacemaking: the role of the international community: What impact and influence do UN initiatives, including peacekeeping efforts have on the patterns and processes of sexual violence in conflict settings? What impact do they have on efforts to redress particular forms of sexual violence? What role do international actors play in the continuities between exploitation in war and peace?
► 6. (Re)presenting rape: What are the circumstances within which wartime rape in Africa becomes visible in and to the West? What political and analytical ‘work’ does the African rape victim, and the African rapists do in Western narratives of action, inaction, politics and justice? How and in what ways is the colonial project in Africa visible, or not, in Western representations of African sexual violence? How do such colonial tropes motivate international and Western responses and, for better or for worse, help constitute the transnational social field through which African activists operate?
► 7. Postconflict and transition: How do patterns and processes of sexual violence become visible, or not, in post conflict transition and reconciliation efforts? To what extent do patterns of sexual violence impact upon access to resources and redress in postconflict contexts? How are masculinities contested and redefined in the conflict period and to what extent does that impact on efforts to address (redress) wartime sexual violence?
If you are interested in simply participating, please send a brief letter identifying yourself, your organisation, and the nature of your work/interests in relation to the themes below.
Please send all correspondence to: sexualviolence.conflict.africa@gmail.com. Deadline for proposals is March 2, 2010.

Read On! Black and Green Atlantic

(Read On! ... occasional posts on writing worth reading) It's my great pleasure to announce a new work hot off the presses, available just in time for holiday giving. It's The Black and Green Atlantic: Cross-Currents of the African and Irish Diasporas, published this month by Palgrave Macmillan.

Co-edited by up-and-coming scholar Peter D. O'Neill (my dearest), Ph.D. candidate in Literature at the University of Southern California, and David Lloyd, Professor of English at USC, the book collects truly interdisciplinary explorations of the transoceanic experiences of women and men who migrated from Africa and Ireland. As the publisher puts it:

For centuries, African and Irish people have traversed the Atlantic, as slaves, servants, migrants, exiles, political organizers and cultural workers. Their experiences intersected; their cultures influenced one another. These essays explore the connections that have defined the 'Black and Green Atlantic' in culture, politics, race and labour.

Experts in this discourse will recognize that in undertaking these examinations, the collection builds upon the "extraordinarily influential" book The Black Atlantic: Modernity and Double Consciousness, published in 1992 by Paul Gilroy, since 2005 holder of a chair in social theory at the London School of Economics.

Peter and David each contributed an essay, both of much interest to anyone who studies theories of the state or issues of race and gender: Peter's is entitled "Laundering Gender: Chinese Men and Irish Women in Late Nineteenth-Century San Francisco"; David's, "Black Irish, Irish Whiteness and Atlantic State Formation."

Also of note are the many contributions by women scholars; specifically, "Fenian Fever: Circum-Atlantic Insurgency and the Modern State" by Amy E. Martin; "Green Presbyterians, Black Irish and Some Literary Consequences" by Nini Rodgers; "How Irish Maids are Made: Domestic Servants, Atlantic Culture, and Modernist Aesthetics" by Marjorie Howes; "Freeing the Colonized Tongue: Representations of Linguistic Colonization in Marlene Norbese Philip's and Eavan Boland's Poetry" by Stacy J. Lettman; "Beyond the Pale: Green and Black and Cork" by Lee Margaret Jenkins; "To redeem our colonial character: Slavery and Civilization in R. R. Madden's A Twelvemonths Residence in the West Indies" by Fionnghuala Sweeney; and "Declaring Differently: The Transatlantic Black Political Imagination and Mid-Twentieth Century Internationalisms" by Anne W. Gulick.

Rounding out the collection are: "White Skin, Green Face: House of Pain and the Modern Minstrel Show" by Mark Quigley; "Samuel Beckett and the Black Atlantic" by Jonathan Tadashi Naito; "Transatlantic Fugue: Self and Solidarity in the Black and Green Atlantics" by Michael Malouf; "Martyrs for Contending Causes: David Walker, John Mitchel and the Limits of Liberation" by Anthony R. Hale; "Embodied Perception and Utopian Movements: Connections Across the Atlantic" by Denis O'Hearn; and last but by no means least, "Ventriloquizing Blackness: Eugene ONeill and Irish-American Racial Performance" by Cedric J. Robinson.

Heartfelt congratulations!