Go On! Web Seminar on Libya

The Program on Humanitarian Policy and Conflict Research at the Harvard School of Public Health will host on April 5 at 9:30 a.m. EST a Live Web Seminar on the “Crisis in Libya: Planning the International Response.” The presenters include:

• Luis Moreno-Ocampo, Prosecutor, ICC;


• R. Nicholas Burns, The Sultan of Oman Professor of the Practice of International Relations, Harvard Kennedy School of Government;


• Sarah Leah Whitson, Executive Director, Middle East and North Africa Division, Human Rights Watch (below left);


• Dirk Vandewalle, Associate Professor of Government, Dartmouth College; and


• Philippa Thomas, Nieman Fellow, Harvard University & Foreign Correspondent, BBC (below right).

The seminar will examine the modalities through which the international community may respond to the ongoing crisis in Libya amid reports of violence, refugee and IDP flows, and other forms of instability. It will also touch on the legal, political and strategic dilemmas arising for the international community, especially in terms of prevention and mitigation of civilian harm.
Registration to the Live Web Seminar is free. Registration and background materials are available on the IHL Research Initiative Portal.
This Seminar is part of a series of monthly live web seminars on contemporary challenges and dilemmas in humanitarian law and policy. The seminars are tailored to practitioners and policy makers. Since 2008, these events have provided a source of interactive professional dialogue at a global level for thousands of professionals engaged in humanitarian action around the world.

Diversity in the Military

Women were first allowed to serve (in statutorily limited numbers) in the U.S. military with the passage in 1948 of the Women's Armed Forces Integration Act. Over time, a number of limitations on women's full military service have been repealed or otherwise eliminated. (See here for a short history of women in the military). And yet, women remain underrepresented in national militaries. In the United States, women make up about

• 15% of active-duty service members;


• 18% of National Guard and reserves;


• 10% of Iraq and Afghanistan combat veterans; and


• 10% of those who have served in the Iraq and Afghanistan theaters of war.

Women are vastly under-represented in senior ranks as well. Even in the Israeli military, one of the few that conscripts women, less than 5% of the senior ranks are occupied by women. It was only in 1993 that Sheila Widnall (right) was appointed U.S. Secretary of the Air Force—the first women to lead a branch of the U.S. military.

The military is one sector of society that has remained steadfastly impervious to demands for formal equality. In most national militaries, women are excluded by law from certain combat functions. The United States' 1994 combat exclusion policy states that

Women may not serve in units that engage an enemy on the ground with weapons, are exposed to hostile fire, and have a high probability of direct physical contact with the personnel of a hostile force.

This policy thus precludes women from being “assigned” to ground combat units operating "well forward on the battlefield"—a concept with little basis in the reality of many of today's combat situations. Indeed, women have served in ground combat situations by virtue of being assigned to units deemed “attached” to these ground units. This often artificial distinction keeps women from gaining recognition for their ground combat experience. In light of the evolution of modern warfare and weaponry, and the disappearance of linear battlefield or a clearly defined enemy, de facto battlefield equality is well ahead of de jure battlefield equality.

But, change is afoot... In February 2010, the Navy announced a new policy allowing women to serve on submarines. Then, this month, to little fanfare, the U.S. Department of Defense released a report (see press release here) drafted by a Military Leadership Diversity Commission and entitled, Military Leadership Diversity Final Report, From Representation to Inclusion: Diversity Leadership for the 21st-Century Military. The Commission was established by virtue of the 2009 National Defense Authorization Act (sec. 596) to evaluate and assess policies that provide opportunities for promotion and advancement of women and racial and ethnic minorities in the armed forces. The Commission, chaired by retired Air Force Gen. Lester L. Lyles (left), issued 20 recommendations, one of which will be of particular interest to readers of this blog.

Recommendation 9 states:

DOD and the Services should eliminate the “combat exclusion policies” for women, including the removal of barriers and inconsistencies, to create a level playing field for all qualified servicemembers. The Commission recommends a time-phased approach:

• Women in career fields/specialties currently open to them should be immediately able to be assigned to any unit that requires that career field/specialty, consistent with the current operational environment.


• The DOD and the Services should take deliberate steps in a phased approach to open additional career fields and units involved in “direct ground combat” to qualified women.


• DOD and the Services should report to Congress the process and timeline for removing barriers that inhibit women from achieving senior leadership positions.

The recommendation is based in part on a number of key observations, including

• an acknowledgement of changed battlefield conditions and the disconnect between the reality of women's combat experience and the policy;


• the recognition that the lack of formal combat experience prevents women from achieving promotion to certain officer grades and in certain operational career fields;


• the results of new research that debunks the idea that allowing women to serve in combat would hamper mission readiness, diminish military capabilities, or undermine unit cohesion; and


• the obvious point that armed forces leadership should be able to bring all available talent to bear on the challenges facing our military.

Let's hope that the Department of Defense heeds the report's recommendation so that our military's leadership can better reflect the nation it serves and the forces it leads. It is only when women can make the ultimate sacrifice for our nation and its security (photo credit) that women can achieve true equality with men.

Go On! ASIL interest group session: Fact-Finding in International Criminal Law

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

International criminal law enthusiasts should be sure to attend this week's ICL Interest Group meeting at the American Society of International Law (ASIL) Annual Meeting in Washington, D.C., about which we've already blogged here, here, here, and here. The Interest Group, of which I am honored to serve as Co-Chair, is hosting a panel discussion with IntLawGrrl guest/alumna Nancy Combs, Cabell Research Professor of Law at William and Mary Law School (left), about her book, previously featured here. The session is Friday, March from 10:45 am - 12:15 p.m. (Full annual meeting schedule here).
The session will be moderated by the group's other Co-Chair, Linda Malone, the Marshall-Wythe Foundation Professor of Law and Director of the Human Security Law Program at William & Mary Law School (right).
The panel will also feature prepared remarks and questions by discussants drawn from our interest group, including:
►David Crane, Professor of practice at Syracuse University College of Law and founding Chief Prosecutor of the Special Court for Sierra Leone (left).
► Hannah Garry, Director of USC Law's International Human Rights Clinic (right).
► IntLawGrrl guest/alumna Saira Mohamed, Assistant Professor of Law at Berkeley Law (below left).
► Dan Saxon, formerly a legal officer of the Office of the Prosecutor of the International Criminal tribunal for the Former Yugoslavia and now a lecturer at Cambridge University.
► IntLawGrrl guest/alumna Meg DeGuzman, Assistant Professor of Law at Temple University Beasley School of Law (right).
► Marko Oberg, Legal Officer at International Criminal Tribunal for the Former Yugoslavia.

Major Staff Turnover Anticipated at the ICC

The ICC is poised to experience a major turnover in its professional staff in 2012. These upcoming elections and appointments will constitute the most significant and dramatic changes in the ICC's leadership corps since the inaugural elections in 2003.
On the judicial side: the terms of six of the Court's 18 judges (depicted above) will expire next year. (The ICC Statute staggered the terms of office of the first batch of judges so that one third would serve 9 year terms. It is this group of judges whose terms are now ending.) The nomination period for the open positions shall run from June 13 to September 2, 2011. Candidates will be elected at the tenth session of the Assembly of States Parties (ASP) (December 12-21, 2011) to be held at United Nations Headquarters. The Court also needs a new President and new Vice Presidents. This radical overhaul of the bench will come just as the first trials before the Court are coming to a close and the ad hoc tribunals are shutting their doors.
The Judicial Division is composed of 18 judges in three divisions. The Pre-Trial Division is composed of 6 judges. Some of the responsibilities of the Division are carried out by two Pre-Trial Chambers of 3 judges each or by a single judge. As the name implies, the Pre-Trial Division carries out a number of functions prior to the initiation of trial:

• authorizing the prosecutor's proprio motu investigation,
• ruling on admissibility challenges, including on complementarity and gravity grounds,
• reviewing decisions by the prosecutor not to proceed in the event of the referral of a situation,
• upholding the rights of the accused and protecting victims and witnesses in the investigative phase,
• authorizing investigations on the territories of states parties,
• issuing warrants for arrest,
• confirming the charges against an accused, and
• (eventually) serving as a filter to charges of aggression (if the ASP decides to activate the aggression amendments in 2017).

The Trial Division, composed of 8 judges with criminal law experience, is charged with conducting fair and expeditious trials to determine the individual responsibility, vel non, of the accused and to award any reparations due to the victims. Finally, the Appeals Division, consisting of the President of the Court and four other judges, is responsible for adjudicating any appeals emerging from the Pre-Trial Division or the Trial Division.
Among those ICC judges whose terms are ending are three women:
Fatoumata Dembélé Diarra of Mali, the First Vice President of the Court and a member of the Trial Division (above right), Elizabeth Odio Benito of Costa Rica and a member of the Trial Division (immediate right), and Sylvia Steiner of Brazil, who is a member of the Pre-Trial Division (above left).
The current prosecutor's term ends in June 2012, and the ASP has established a representative search committee to find his replacement pursuant to the same schedule as the judicial elections. The Committee is being coordinated by H.R.H. Zeid Ra’ad Zeid al-Hussein, Permanent Representative of Jordan to the United Nations. The Committee hopes to have a short list of candidates by the end of this summer.
As they consider their nominations, the ASP will do well to recall the qualifications of judges and the prosecutor, which are set forth in part in Articles 36 and 42 of the ICC Statute, respectively. In particular, Article 36(8)(a) directs the ASP to in the selection of judges, to

take into account the need, within the membership of the Court, for: ... (iii) A fair representation of female and male judges.

Not surprisingly, NGOs are calling for a merits-based set of nominations rather than politicized vote-trading. To this end, the Coalition for an ICC has created a high-level expert panel to assess the candidates put forward by States Parties. See here for more on this campaign. (Diane's prior post on the CICC panel convened to vet judicial candidates is here.)
The ASP is going to experience an overhaul as well, with the election of new members of the Bureau (the executive committee of the ASP), a new President, and 6 new members for the Committee of Budget and Finance. (Ambassador Simona Mirela Miculescu (left), Permanent Representative of Romania to the United Nations, recently assumed the position of Vice-President of the Assembly).
The crime of aggression will likely become operational during the terms of office of this group. (The ASP can make a decision as early as 2017 to activate the Court's jurisdiction over the crime). No doubt this too will impact states parties' choices of candidates as it is these individuals who must be trusted to adjudicate this new and controversial crime.
Stay tuned...

Guest Blogger: Elizabeth Ashamu

We're delighted to welcome Elizabeth Ashamu (right), who provides today's guest post below on her work seeking justice for victims of extraordinary rendition in the African human rights system.
A third-year law student at NYU School of Law, Elizabeth is a Root-Tilden-Kern and Institute for International Law and Justice scholar. Her academic and professional work has focused on human rights in Africa. She holds Bachelor's and Master's degrees in African Studies from Yale University.
Before law school, work on human rights, transitional justice and natural resource management took her to Togo, Rwanda, Liberia and Cameroon. As a law student, Elizabeth was a founding member and the first president of the NYU African Law Association. She has spent time in Southern Sudan researching post-conflict forest governance, and she interned with the Special Court for Sierra Leone at its Hague office. Her interest in strengthening democratic processes in Africa led her to serve as legal advisor with the Carter Center’s election observation mission for Guinea’s presidential elections and as an observer for the Southern Sudan referendum on self-determination.
Elizabeth looks forward to working with Human Rights Watch after her graduation, as its 2011-2012 NYU Fellow.
Heartfelt welcome!

Women @ ASIL (5th ed.)

As we have each year since our founding ((here, here, here, here, and here), IntLawGrrls is proud today to highlight women who will speak March 23-26 at the forthcoming annual meeting of the American Society of International Law.
This 105th gathering of the Society, entitled Harmony and Dissonance in International Law, kicks off with the Grotius Lecture by Nobel Prizewinning economist Amartya Sen, for which our colleague Kim Lane Scheppele (Princeton) will serve as discussant. Also of note are: the annual WILIG luncheon, featuring IntLawGrrl Lucy Reed, immediate past President of ASIL; an opening plenary by Michael H. Posner, Assistant Secretary of State for the Bureau of Democracy, Human Rights, and Labor; and a plenary among several international judges. I'm especially excited about the Friday lunch dialogue featuring International Criminal Court Deputy Prosecutor Fatou Bensouda (left) -- wearing my hat as an ASIL vice president, I've been given the honor of serving as discussant/moderator for her talk. (photo credit)
All events will take place at the Ritz Carlton Hotel, 1150 22d Street, N.W., Washington, D.C. (Details and registration here.)
Delighted to see from the program that, once again, there's much diversity in topics and presenters. Virtually all panels again have at least 1 woman participating, and that many have many more. Particularly proud that so many persons featured are IntLawGrrls or IntLawGrrls alumnae!
Without further ado, here's this year's honor roll of Women @ ASIL:

Wednesday, March 23, 4:30-6 p.m.
► "The Global Status of Rights": Kim Lane Scheppele (Princeton) as discussant for Grotius Lecture by Amartya Sen.

Thursday, March 24, 11:15 a.m.-12:45 p.m.
► "The Supreme Court & Arbitration Law": Lorraine M. Brennan (JAMS International).
► "Legal Origins, Doing Business and Rule of Law Indicators: The Economic Evaluation of Legal Systems": Corinne Boismain (Université de Metz).
► "International Environmental Law Making and the International Court of Justice": Malgosia Fitzmaurice (University of London) (right), Natalie Klein (Macquarie), and IntLawGrrl guest/alumna Cymie Payne (Lewis & Clark) as panelists; Caroline Foster (Auckland) will moderate.
► "International Courts and Tribunals Interest Group: Judicial Selection": Eloïse Obadia (International Centre for Settlement of Investment Disputes) and Gabrielle Kirk McDonald (Iran-U.S. Claims Tribunal) (left).
► "Commissions of Inquiry into Armed Conflict, Breaches of the Laws of War and Human Rights Abuses: Process, Standards, and Lessons Learned": Agnieszka Jachec Neale (Essex) and Heidi Tagliavini (Swiss Ministry of Foreign Affairs).
►"New Voices I: Global Health, Trade & Common Resource Regimes": Lisa Clarke (Amsterdam), Erika Techera (Macquarie), and Margaret Young (Melbourne).

Thursday, March 24, 1-2:30 p.m.
► IntLawGrrl Lucy Reed (right), immediate past President of ASIL and a partner at Freshfields Bruckhaus Deringer LLP in New York, at the annual luncheon of WILIG, the Women in International Law Interest Group.
► "Fragmentation of International Legal Orders and International Law: Ways Forward?": Nele Matz-Lück (Max Planck Institute for Comparative Public Law and International Law, Heidelberg) as panelist; Ruti Teitel (New York Law School) will moderate.
► "Responding to Nuclear Security Challenges in a Fragmented World": Asli Ü. Bâli (UCLA) and Rose Gottemoeller (Assistant Secretary of State, Bureau of Verification, Compliance, and Implementation).
► "Seamlessness or Segmentation? International Economic Governance and European Sovereign Debt": Odette Lienau (Cornell) and Ann Misback (Federal Reserve Board).

Thursday, March 24, 3-4:30 p.m.
► "Annual Benjamin Ferencz Session: Integrating the Crime of Aggression into International Criminal law and Public International Law": Teresa McHenry (U.S. Department of Justice) and IntLawGrrl Beth Van Schaack (Santa Clara).
► "The Role of International Tribunals in Managing Coherence and Diversity in International Law": IntLawGrrls guest/alumna Andrea K. Bjorklund (California-Davis) and Valerie Hughes (Legal Affairs Director, World Trade Organization).
► "Dispute Resolution Interest Group: IS ICSID Losing Its Appeal...Again?": Andrea Menaker (White & Case LLP), moderator.
► "Espionage and the First Amendment After Wikileaks": Mary-Rose Papandrea (Boston College).

Thursday, March 24, 5-6:15 p.m.
► "Decision Making in International Courts and Tribunals: A Conversation": plenary keynote featuring numerous international jurists, including Dame Rosalyn Higgins (former President of the International Court of Justice) (left) and Brigitte Stern (Université de Paris I (Panthéon-Sorbonne)).

Friday, March 25, 7-8:30 a.m.
► "Targeting with Drone Technology: Humanitarian Law Implications": Naz Modirzadeh (Harvard) will moderate.

Friday, March 25, 9-10:30 a.m.
► "Strategy and Planning Meeting for ASIL's new International Disability Rights Interest Group," about which IntLawGrrl Hope Lewis, interest group co-chair along with Stephanie Ortoleva (BlueLaw), posted yesterday.
► "International Environmental Law Interest Group: Roundtable on Research Methodologies," an all-woman panel: Cinnamon Carlarne (South Carolina), Edith Brown Weiss (Georgetown) (right) and Jutta Brunnée (Toronto) as panelists; Sara Seck (Western Ontario) will moderate.
► "International Trade Law and International Investment Law: Convergence or Divergence?": Marinn Carlson (Sidley & Austin LLP).
► "What the Kosovo Advisory Opinion Means for the Future": Anne Peters (Basel).
► "The Role of Legal Norms in Mediation and Negotiation: Views from the Field": Jennifer Lake (Legal Advisor, Independent Diplomat, an advisory group).
► "Ethical and Practical Challenges for Corporate Lawyers Advising Clients on Human Rights": Sarah Altschuller (Foley Hoag LLP), Rachel Davis (Harvard's Kennedy School), and Alexandra Guáqueta (Flinders University).

Friday, March 25, 10:45 a.m.-12:15 p.m.
► "International Criminal Law Interest Group: 'Fact Finding Without Facts': A Conversation with Nancy Combs": IntLawGrrls guest/alumna Nancy Amoury Combs (William & Mary) will speak on her book titled above, about which she posted here; discussant will be her William & Mary colleague, Linda A. Malone.
► "Intellectual Property Law Interest Group: Harmonizing International Law: An IP Perspective": Seagull Song (Renmin University); Elizabeth Chien-Hale (Institute for Intellectual Property in Asia) will moderate.
► "Recent Trends in International Investment Treaty Law": Carolyn Lamm (White & Case LLP) and Loretta Malintoppi (Eversheds LLP).
► "The Roles and Responsibilities of International Organizations": Vera Gowlland-Debbas (Université de Génève) and Daphna Shraga (Office of Legal Affairs, United Nations) as panelists; Blanca Montejo (Office of Legal Affairs, United Nations) will moderate.
► "New Battlefields/Old Laws: Shaping a Legal Environment for Counterinsurgency": Ashley Deeks (Columbia) and Sarah Sewall (Harvard's Kennedy School).
► "Elections and Ethnic Violence": Susan Benesch (World Policy Institute); Sarah Knuckey (NYU) will moderate.

Friday, March 25, 12:30-2:30 p.m.
► "Luncheon Dialogue on the International Criminal Court": ICC Deputy Prosecutor Fatou Bensouda will be the principal speaker; yours truly, Diane Marie Amann (California-Davis), will serve as moderator/discussant.

Friday, March 25, 1-2:30 p.m.
► "International Legal Research Interest Group: Greater than the Sum of Its Parts: Global Cooperation in Making the World's Laws Accessible": Hongxia Liu (World Justice Project), Marylin Raisch (Georgetown), and Roberta Shaffer (Law Librarian of Congress) (left) as panelists; Amy Emerson (Cornell) will moderate.
► "Harmony and Dissonance in Extraterritorial Regulation": IntLawGrrls guest/alumna Hannah Buxbaum (Indiana).
► "Labor and Migration in International Law: Challenges of Protection, Specialization and Bilateralism": Nisha Varia (Human Rights Watch) and Ayelet Schachar (Toronto) as panelists; Regan Ralph (Fund for Global Human Rights) will moderate.

Friday, March 25, 3-4:30 p.m.
► "International Law and the Liability for Catastrophic Environmental Damage": Monika Hinteregger (University of Graz) as panelist; Marie Soveroski (ASIL International Environmental Law Interest Group Co-Chair) will moderate.
► "New Voices II: Internationalizing & Domesticating Law": Anna Dolidze (Cornell), IntLawGrrls guest/alumna Molly Beutz Land (New York Law School), and Tonya Putnam (Columbia).
► "Are There 'Regional' Approaches to International Dispute Resolution?": Katia Fach Gómez (Fordham), Judge Nkemdilim Amelia Izuako (U.N. Dispute Tribunal), and Catherine Kessedjian (Université Panthéon-Assas).
► "International Legal Theory Interest Group: Harmony and Dissonance in International Legal Theory": IntLawGrrls guest/alumna Nienke Grossman and Helen Stacy (Stanford).
► "International Legal Implications of Israel's Attack on the Gaza Aid Flotilla": Sari Bashi (Gisha: Legal Center for Freedom of Movement); Sarah Weiss Maudi (Israel Ministry of Foreign Affairs); Naz Modirzadeh (Harvard).

Friday, March 25, 8-10 p.m.
► "ASIL Annual Dinner: A Celebration of Distinction and Promise": featuring, inter alia, award of the Goler T. Butcher Medal to IntLawGrrl guest/alumna Gay McDougall, (left), U.N. Independent Expert on Minorities; Certificate for Scholarship (Creative Scholarship) to Jutta Brunnée, coauthor with Stephen J. Toope of Legitimacy and Legality in International Law; and Certificate for Scholarship (Honorable Mention in a specialized area of international law) to IntLawGrrl guest/alumna Anne Gallagher, author of The International Law of Human Trafficking, on which she posted here.

Saturday, March 26, 9-10:30 a.m.
► "Duplication and Divergence in the Work of the United Nations Human Rights Treaty Bodies": Sarah McCosker (Office of the Australian Attorney General) and Catherine Powell (State Department) (right) as panelists; Christina Cerna (Organization of American States) will moderate.
► "Trade and Investment in Africa: Harmony and Disharmony with the International Community": Uche Ewelukwa (Arkansas) as panelist; Angela M. Banks (William & Mary) will moderate.
► "Geoengineering Climate Change: Can the Law Catch Up?": IntLawGrrl Hari M. Osofsky (Minnesota) as panelist; IntLawGrrl Rebecca Bratspies (CUNY) will moderate.
► "Author Meets Reader; International Law in the U.S. Supreme Court: Continuity and Change": IntLawGrrls guest/alumna Mary Dudziak (Southern California) and Lori Damrosch (Columbia) as panelists; Ingrid Wuerth (Vanderbilt) will moderate.
► "Transnational Piracy: To Pay or Prosecute?": Jennifer Landsidle (State Department) as panelist; Mileno Sterio (Cleveland-Marshall) will moderate.

Kudos to: ASIL President David Caron; ASIL Executive Director Betsy Andersen; the Program Committee Co-Chairs, IntLawGrrls' guest/alumna Chimène Keitner (California-Hastings), Catherine Amirfar (Debevoise & Plimpton LLP), and Tai-Heng Cheng (New York Law School), as well as Planning Committee members Kristen Boon (Seton Hall), Christiane Bourloyannis-Vrailas (EC/UN), Harlan Cohen (Georgia), Omar Dajani (Pacific McGeorge), Jennifer Daskal (Department of Justice), John Fellas (Hughes Hubbard & Reed LLP), Chiara Giorgetti (White & Case LLP), Dick Jackson (Department of Defense), Rebecca Jenkin (Debevoise & Plimpton LLP), Larry Johnson (Columbia), Erasmo Lara (Mexico Foreign Ministry), Blanca Montejo (United Nations), Michael Newton (Vanderbilt), IntLawGrrl Christiana Ochoa (Indiana), Jeffrey Pryce (Steptoe & Johnson LLP), Regan Ralph (Fund for Global Human Rights), Hina Shamsi (American Civil Liberties Union), Ingrid Wuerth (Vanderbilt), Lionel Yee (Singapore Attorney-General's Chambers), and Nassib Ziadé (International Centre for the Settlement of International Disputes)!

Go On! AI annual meeting in San Francisco

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

Amnesty International USA will host its Annual General Meeting this weekend, March 18-20, in San Francisco. Registration details here; full agenda here. (photo at right is from last year's meeting)
Amnesty is convening a special session for human rights lawyers on Friday, March 18 at the Fairmont Hotel, 950 Mason Street, from 9 a.m.-4 p.m. The event is free, but registration is recommened. Topics will include:

• the Foreign Sovereign Immunities Act,


• the Torture Victims Protection Act,


• the Alien Tort Statute,


• corporate accountability for complicity in human rights violations, and


• applying actions from international human rights mechanisms in U.S. courts.

Here is the full schedule:

9:00 – 9:30 Welcome and Opening Remarks: Jessica Carvalho Morris (left), Vice-Chair AIUSA Board of Directors and Director of the International and Foreign Graduate Programs, University of Miami School of Law
9:30 – 11:00 Civil Actions to Hold Human Rights Violators Accountable: Successes, Obstacles, and Future Challenges

• William S. Dodge, Professor of Law at the University of California’s Hastings College of the Law

• IntLawGrrl Chimène Keitner, Associate Professor of Law at the University of California’s Hastings College of the Law (right)

• Andrea Evans, Litigation Director, Center for Justice and Accountability (left)

11:00 – 12:30 No Safe Haven: Criminal and Administrative Enforcement

• IntLawGrrl Pamela Merchant, Executive Director, Center for Justice and Accountability (left, at podium)

• IntLawGrrl Beth Van Schaack, Associate Professor of Law, Santa Clara University School of Law (below left)

• Theresa Harris, AIUSA Board of Directors and Executive Director of the World Organization for Human Rights USA (right)

12:30 – 2:00 Lunch

2:00 – 3:30 Corporate Accountability: Emerging Standards

• Paul Hoffman, Schonbrun, Seplow, Seplow, Harris, Hoffman & Harrison, LLP

• IntLawGrrl Natalie Bridgeman Fields, Founder and Executive Director of Accountability Counsel (right)

• Morton Winston, Founding Chair of the AIUSA Business & Human Rights Group

3:30 – 4:00 Discussion and Closing Remarks

Hope to see you there!

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.

Libya and the Codification of the Crime of Aggression

There has been a lot of attention in the press and blogosphere about the worrisome situation in Libya, the (in)adequacy of the United States' and United Nations' response thereto, and the Security Council's unanimous referral of the situation to the International Criminal Court via Resolution 1970 on February 26, 2011. (See our prior coverage here). On March 2, 2011, the ICC Prosecutor announced that he had opened his investigation into potential crimes committed in Libya (see his press conference here). The President of the ICC, Judge Sang-Hyun Song (S. Korea), thereafter assigned the situation to Pre-Trial Chamber I.

In undertaking his investigation into international crimes committed since February 15th, the ICC Prosecutor has already signaled that he will consider the commission of crimes against humanity—a constellation of acts made criminal under international law when they are committed within the context of a widespread or systematic attack against a civilian population with knowledge of that attack. Certainly the strafing of peaceful demonstrators with helicopter gunships, the indiscriminate bombing of residential neighborhoods by warplanes (left, photo credit), and the unleashing of mercenaries and snipers on the ground collectively rise to the level of such an attack. This is especially true given that at least a thousand people have been killed and thousands others have been injured and/or displaced. (Although, I should note that Judge Kaul, who does not sit on this PTC, will likely disagree here).

War crimes may also have been committed, depending on whether the situation in eastern Libya or elsewhere rises to the level of armed conflict. Common Article 3, whose prohibitions are listed as war crimes in Article 8(2)(c) of the ICC Statute, is applicable once there is an "armed conflict" occurring "on the territory of" a party to the Geneva Conventions. The determination of when violence rises to the level of an "armed conflict" depends on the level of violence and the degree of organization of the parties. Certainly, the formation of an increasingly hierarchized and united armed opposition—populated and led by courageous defectors from Libyan armed forces' officer corps—goes far toward finding the necessary degree of organization. In addition, there are indications that swaths of the country are under the control of opposition groups forging a transitional government (the Libyan National Council) after governmental authorities collapsed.

All this implies that the heightened threshold of Protocol II, which also governs non-international armed conflicts and whose prohibitions may be prosecuted as war crimes pursuant to Article 8(2)(e) of the ICC Statute, may also be satisfied. That treaty becomes applicable when there is a non-international armed conflict

which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.

It explicitly excludes situations

of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts.

There thus may be reasonable grounds to conclude the existence of a full-scale civil war, albeit an unbalanced one according to comparative military assessments, which would lay the groundwork for war crimes charges.

The crime of aggression is not immediately implicated in the Libyan situation. For one, the aggression amendments will not come into force until 2017 at the earliest. Moreover, the definition of the crime does not envision the act of aggression being committed by or against non-state actors that are not linked to a state. Nonetheless, the crime of aggression may bear on responses by the international community to the crisis in Libya.

Indeed, military options are not off the table, according to recent comments by President Obama and other world leaders. In particular, it has been proposed that the international community—or some subset thereof—should impose a no-fly zone over the country in an effort to prevent Libya's increasingly erratic and vicious leader from committing further violence against his own people. The Gulf Cooperation Council and Arab League reportedly support such a measure as do several vocal members of Congress. France and Britain are working on a draft Security Council resolution that would authorize such a response, although it is unclear if Russia and China would support this measure, which sounds of military intervention. This raises the prospects that a group of states, such as NATO or some other coalition of the willing, might move forward without explicit Council approval. This is exactly the kind of scenario that worries detractors of the codification of the crime of aggression in the ICC Statute.

The imposition of a no-fly zone without prior Council approval might run afoul of the prohibition of aggression as it has been defined in the aggression amendments. Article 8bis(2) of the amendments defines “act of aggression” broadly as

the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State...

The amendments go on to list the following as acts of aggression:

a) The invasion or attack by the armed forces of a State of the territory of another State ...;
b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State; ...
d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State...

Simply policing the no-fly zone might constitute a breach of Libya's territorial integrity, and for a no-fly zone to be effective, it would likely be necessary to neutralize Libya's air defense capabilities, which would involve air strikes. To be sure, such acts would only be prosecutable as the crime of aggression if they are deemed to constitute a "manifest" violation of the U.N. Charter with reference to their character, gravity and scale as per Article 8bis(1). As we have discussed at length in our crime of aggression series, no explicit exception was carved out for bona fide humanitarian interventions or for considerations of a state's motives for engaging in military action. However, important understandings adopted in Kampala imply that a consideration of the "consequences" of military action might shield actions from being characterized as an act of aggression. This would depend, of course, on the views of

• the prosecutor (exercising prosecutorial discretion),
• the Pre-Trial Division (which would need to approve aggression charges), and
• the Security Council (which also acts as a filter to aggression charges and can defer prosecutions for a renewable period of a year).

In any case, the ICC is poised to enter the debate about such humanitarian interventions in the event that they occur once the aggression amendments are operational. The situation in Libya offers yet another potential scenario in which a deployment of armed force might be warranted and beneficial, but may not—for whatever reason—be able to garner Security Council approval.

Breaking News from the ICC

The ICC recently released three important decisions in the last two days:

1. The first two are decisions by Pre-Trial Chamber II, by a majority, to issue summons to the six Kenyan suspects (about which we've blogged before) to appear before the ICC on April 4, 2011:

• William Samoei Ruto (Ruto),
• Henry Kiprono Kosgey (Kosgey),
• Joshua Arap Sang (Sang),
• Francis Kirimi Muthaura (Muthaura),
• Uhuru Muigai Kenyatta (Kenyatta) and
• Mohammed Hussein Ali (Ali).

The Chamber found reasonable grounds to believe that Ruto, Kosgey and Sang (the Odinga defendants) can be prosecute for specified crimes against humanity (murder, forcible transfer and persecution). (The Chamber rejected efforts to prosecute the three for torture). The cases against Ruto and Kosgey will proceed under a theory of indirect co-perpetration (i.e., committing crimes through another person(s)) in accordance with article 25(3)(a) of the Rome Statute. The case against Sang, by contrast, will proceed under a theory of complicity rather than co-perpetration, because the PTC determined that no reasonable grounds existed to believe that Sang's contribution to the commission of the crimes was essential.

Maintaining almost perfect symmetry, the PTC determined Muthaura and Kenyatta (the Kibaki defendants) will be prosecuted as co-perpetrators of the crimes against humanity of murder, forcible transfer, rape, persecution and other inhumane acts. Likewise, the case against Ali will proceed under a theory of complicity based on the finding that there were reasonable grounds to believe that Ali otherwise contributed to the commission of the crimes in accordance with article 25(3)(d) of the Rome Statute.

Unsurprisingly (see prior post), Judge Hans-Peter Kaul dissented (opinion as yet unavailable), arguing that the Prosecutor had failed to establish reasonable grounds to believe that the crimes were committed pursuant to or in furtherance of the policy of an organization as required by the definition of crimes against humanity in the ICC Statute.

2. In the Darfur situation, PTC I confirmed charges against two rebel leaders (Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus) based upon alleged attacks on the compound of the African Union peacekeeping mission in Sudan on the evening of September 29, 2007. The two will be prosecuted for the war crimes of:

•violence to life and attempted violence to life;
•intentionally directing attacks against personnel, installations, material, units and vehicles involved in a peacekeeping mission; and
•pillaging.

Stay tuned...

Breaking News: Obama's Executive Order on Guantánamo

The White House released today the long-promised Executive Order on detainee policy along with a fact sheet setting forth additional policy points (see prior posts here, here and here). President Obama's statement on the new policy is here.

The E.O. states that it has been issued pursuant to the President's constitutional authority as well as the September 2001 Authorization for Use of Military Force. It does not purport to establish any additional or separate source of detention authority. The Order and fact sheet articulate the following elements:

1. The fact sheet calls for the resumption of trials before military commissions "for international terrorists that [sic] fall within their jurisdiction" in light of "key reforms" to the military commission system, including the bar on the use of statements taken as a result of cruel, inhuman or degrading treatment. As our readers will recall, in Hamdan v. Rumsfeld, the Supreme Court confirmed that military commissions may only assert jurisdiction over violations of the law of war as opposed over crimes that are defined by general international criminal law, domestic law, or the international prohibitions against terrorism. Here is Secretary of Defence Gates's statement rescinding the moratorium.

2. The E.O. establishes a periodic review of the continued detention of current detainees who have been deemed to qualify for prolonged security detention by the inter-agency review mandated by E.O. 13492 (Jan. 22, 2009) or those individuals who have been referred for prosecution but have not yet been charged or prosecuted. By the terms of the E.O., this periodic review will not apply to future detainees. This review is also separate and apart from the habeas rights already being asserted with varying degrees of success by detainees in federal courts. Although some details of this process are provided in the E.O., full implementing guidelines will be issued by the Secretary of Defense in consultation with the Attorney General. The standard for continued detention is that an individual's detention is

necessary to protect against a significant threat to the security of the United States.

3. Each current detainee is entitled to a full initial review within one year of this date before an inter-agency Periodic Review Board (PRB) composed of representatives from the Departments of State, Defense, Justice and Homeland Security as well as the offices of the Director of National Intelligence and the Chair of the Joint Chiefs of Staff. Then, detainees are entitled to a "file review" every 6 months that will consider "relevant new information" compiled by the Secretary of Defense plus a written statement from the detainee. The file review may result in a full review if "a significant question is raised as to whether the detainee's continued detention is warranted." Barring this, subsequent full reviews are to be provided triennially. (Note: The 4th Geneva Convention calls for a 6-month review of all security detentions of non-POWs).

4. The initial and periodic full reviews shall involve the following procedural steps and protections:

• the provision of notice of the review and a summary of the factors to be considered by the PRB in determining whether continued detention is warranted;
• the right of the detainee to submit evidence and witness testimony relevant to the determination of whether the detention remains necessary;
• the provision of all information relevant to the inquiry, including "mitigating information," except where there are national security concerns that might require the provision of "a sufficient substitute or summary" rather than the raw material;
• there is no adversarial discovery allowed from the government;
• the detainee is entitled to a personal representative (who is an advocate) and private counsel (at the detainee's expense);
• a "reliability" determination of all the information provided by the PRB;
• a "prompt" written disposition, including recommendations for transfer conditions in the event that the continued detention standard has not been met;
• review by a Review Committee (composed of the Secretary of State, the Secretary of Defense, the AG, the Secretary of Homeland Security, the Director of National Intelligence, and the Chair of the Joint Chiefs of Staff) on that Committee's discretion or if consensus within the PRB cannot be reached;
• no appeal of any review process is available to the detainee.

5. According to this review process, once an individual's detention is no longer "necessary to protect against a significant threat to the security of the United States," the Secretaries of State and Defense are to identify a suitable transfer location outside the United States consistent with the national security and foreign policy interests of the United States. The Secretary of State shall be responsible for obtaining appropriate security and humane treatment assurances regarding transferees. Transfer efforts shall be reviewed annually by the Review Committee. This will include a consideratin of those individuals whose detention is no longer deemed warranted pursuant to the new periodic review process as well as those individuals whose petition for a writ of habeas corpus has been granted.

6. The fact sheet promises the launch of additional criminal prosecutions in Article III courts. The fact sheets criticizes Congress's "intrusion" into this process and promises to seek the repeal of restrictions on the prosecution of detainees in federal courts (see our discussion here and here).

5. The fact sheet indicates that the Executive remains committed to exercising its discretion to choose the appropriate forum for further prosecutions, including with respect to individuals whom the United States may "apprehend in the future." The fact sheet argues:

A one-size-fits-all policy for the prosecution of suspected terrorists, whether for past or future cases, undermines our Nation’s counterterrorism efforts and harms our national security.

6. The fact sheet expresses support for two "components" of the international legal framework governing armed conflicts:

a. Protocol II, i.e., the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (June 8, 1977), and
b. Article 75 of Protocol I to the 1949 Geneva Conventions.

With respect to the former, the Administration recommends ratification, particularly in light of the fact that an inter-agency review has concluded that U.S. military practice is consistent with the Protocol and its imperative of humane treatment in the conduct of armed conflicts. With respect to the latter, the United States is already on record indicating that Article 75 of Protocol I constitutes customary international law vis-a-vis international armed conflicts (query its relevance here given that the conflict has been characterized as non-international by the Supreme Court in Hamdan). The fact sheet does not repeat this observation, but it does reaffirm that the Article is "consistent with our current policies" and has historically earned our support. Article 75 provides certain "fundamental protections" that apply in international armed conflicts, broadly defined, to those individuals "in the power of a Party to the conflict and who do not benefit from more favourable treatment under the Conventions or under this Protocol." These basic protections include:

► The right to be treated humanely in all circumstances and without discrimination.
► The right to respect for the person, honour, convictions and religious practices of all such persons.
► Prohibitions on the following acts "at any time and in any place whatsoever, whether committed by civilian or by military agents:"

• violence to the life, health, or physical or mental well-being of persons, including (i) murder; (ii) torture of all kinds, whether physical or mental; (iii) corporal punishment; and
  (iv) mutilation;
• outrages upon personal dignity, in particular humiliating and degrading treatment, enforced prostitution and any form of indecent assault;
• the taking of hostages;
• collective punishments; and
• threats to commit any of the foregoing acts.

► The right of any person arrested, detained or interned for actions related to the armed conflict to be informed promptly of the reasons for the detention. Any such preventative detention must be as short as possible:

Except in cases of arrest or detention for penal offences, such persons shall be released with the minimum delay possible and in any event as soon as the circumstances justifying the arrest, detention or internment have ceased to exist.

► The right to have any sentence or penalty be made pursuant to "a conviction pronounced by an impartial and regularly constituted court respecting the generally recognized principles of regular judicial procedure." These protections include the following:

• the right to be informed of charges without delay,
• all necessary rights and means to launch a defense,
• the right to be judged based upon one's individual responsibility,
• the protection against ex post facto prosecution,
• the principle of lenity,
• the right to be presumed innocent until proven guilty,
• rights to be present at trial, confrontation rights and the protection against self-incrimination, and
• the protection of res judicata

7. The fact sheet reiterates the administration's long-term policy of closing the detention facility on Guantánamo.

8. This law-of-war detention policy shall be reviewed every four years.