'Nuff said

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

[T]he Grand Chamber's judgment exposes flaws in the current European asylum regime. ... [E]stablished to reduce 'asylum shopping' and ensure minimum standards of protection to asylum seekers across the European Union, [it] is based on a presumption of equality and cooperation among safe countries. For geopolitical reasons, [there is] an unbalanced burden-sharing among the various European countries.
The judgment acknowledges those challenges, yet underlines that neither uneven burden-distribution (Greece) nor a state's minimalist reaading of the Dublin Regulation (Belgium) absolves Member States of their responsibilities vis-à-vis the Convention or other applicable international treaties ....

-- Tom Syring, co-chair of the International Refugee Law Interest Group of the American Society of International Law and member of Norway's Immigration Appeals Board, in an ASIL Insight written in his personal capacity. Syring analyzed the judgment that the European Court of Human Rights (right) issued this January in M.S.S. v. Belgium & Greece. An asylum case, M.S.S. unfolded within the framework of the Common European Asylum System -- launched in 1999 and better known as CEAS -- as well as the 2003 Dublin Regulation that implements CEAS. A 17-member Grand Chamber of the Court ruled that both respondent countries had violated rights of the asylee-applicant under Article 3 (banning inhuman and degrading treatment) and Article 13 (guaranteeing an effective remedy) of the 1950 European Convention on Human Rights. Belgium was faulted for having returned the applicant to his 1st state of entry -- Greece -- without considering that there he might endure the poor living conditions and risk of refoulement to his native Afghanistan. Greece, meanwhile, was held to account for the possibility of such risks and for the delays in providing the remedy of asylum. By Syring's telling, the judgment appears to place a significant, affirmative responsibility on member states -- and thus is well worth a read for international lawyers in many fields beyond that of asylum law.

'Nuff said

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

... The Court essentially concludes that international custom requires that international(ized) tribunals try international crimes, whereas national courts can have jurisdiction only if such crimes had already been incorporated into national law when they were committed.
The assertion of such a custom is difficult to harmonize with a whole range of cases in which national courts have retroactively asserted jurisdiction over international crimes. ...

-- Jan Arno Hessbruegge, who works as a legal advisor for the Office of the U.N. High Commissioner for Human Rights, in a personal-capacity ASIL Insight on the November 2010 judgment of the Community Court of Justice of the Economic Union of West African States in Hissein Habré c. République du Sénégal. We've posted here, here, and here about the court of ECOWAS, a regional organization whose members include not only Senegal, but also Benin, Burkina Faso, Cape Verde, Côte d'Ivoire, Gambia, Ghana, Guinea, Guinea Bissau, Liberia, Mali, Niger, Nigeria, Sierra Leone, and Togo. Hessbruegge's Insight is skeptical about the reasoning of the ECOWAS Court in this case. And he rightly points out that it raises the potential for conflicting judgments in cases involving former Chadian dictator Habré -- not necessarily the 2009 decision of the African Court of Human and People's Rights about which we've posted, but rather the eventual judgment in Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), pending before the International Court of Justice. (credit for © 2005 Madjiasra Nako/IRIN photo of "[w]idows protest[ing] in the Chadian capital, N'Djamena, demanding the extradition of Hissène Habré to Belgium to face charges of crimes against humanity")

International Court of Justice Roundup

In connection with meetings at the Peace Palace (left) last week and the recent visit of Dame Rosalyn Higgins to Santa Clara, I had occasion to take a peek at the current docket of the International Court of Justice. The ICJ has entertained 150 cases since its inception in 1947. At the moment, 16 cases are pending on its docket—more than at any other point in history. I asked Judge Higgins about the more frequent resort to the Court and she credited several factors, including an increased faith in the ability of international law to resolve disputes, a recognition of the Court's ability to render just and efficient outcomes, and greater litigiousness generally.
Among the cases pending before the ICJ (another of whose judges, as we've posted here and here, will be in the Bay Area this week), we see:
► Frontier disputes:

• Territorial and Maritime Dispute (Nicaragua v. Colombia);
• Maritime Dispute (Peru v. Chile); and
• Frontier Dispute (Burkina Faso v. Niger).

► Cases invoking environmental law:

• Aerial Herbicide Spraying (Ecuador v. Colombia); and
• Whaling in the Antarctic (Australia v. Japan).

► Near and dear to my heart, are several cases involving international criminal law:

• Jurisdictional Immunities of the State (Germany v. Italy). This case involves the willingness of Italy to entertain civil claims arising out of WWII that Germany argues are barred by immunity doctrines and were waived in a web of post-war treaties. Greece has recently requested permission to intervene on the ground that its legal interests could be affected by the Court’s decision, because Italy is also accused of enforcing Greek judgments based on occurrences similar to those underlying the main suit. As we’ve blogged before, Italy's counterclaims against Germany were rejected on temporal jurisdictional grounds.
• Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal). This case concerns Senegal's compliance with its obligations to extradite or prosecute the former President of Chad, Hissène Habré. As our readers will recall, after the African Union mandated Senegal to prosecute Habré “on behalf of Africa,” Senegal indicated that it would begin pretrial proceedings once it received the necessary international funding, which is estimated at $11.7 million. Donors met in November 2010 to consider the financing of the prosecution of Habré. For more on the case, see Human Rights Watch's coverage.
• A case squarely presenting the question of the legality of the exercise of universal jurisdiction (a question that was dodged by the majority of the ICJ on non ultra petita grounds in Arrest Warrant of 11 April 2000 (DRC v. Belgium)), was recently withdrawn by the parties. Certain Criminal Proceedings in France (Republic of Congo v. France).

► Cases involving claims of violations of territorial integrity and the prohibition on uses of force:

• Certain Activities Carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) and
• Armed Activities on the Territory of the Congo (DRC v. Uganda), which remains pending.

► Human rights

• Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia);
• Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation); and
• Ahmadou Sadio Diallo (Guinea v. DRC), an expropriation case.

► Civil jurisdiction

• Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters (Belgium v. Switzerland), involving the enforcement of judgments under the Lugano Convention.

A final dispute that is hard to categorize (though I must admit that the word "petty" came instantly to mind) concerns the continuing fight over the use of the word “Macedonia” by the former Yugoslav Republic of Macedonia. Application of the Interim Accord of 13 September 1995 (Greece v. former Yugoslav Republic of Macedonia). Greece has jealously guarded the term, arguing that the former Yugoslav Republic of Macedonia, which declared its independence in 1991, harbors irredentist territorial ambitions toward Greece’s northern province of Macedonia.
In addition to these contentious cases, there is one matter invoking the Court's advisory jurisdiction. Judgment No.2867 of the Administrative Tribunal of the International Labour Organization upon a Complaint Filed against the International Fund for Agricultural Development relates to a complaint filed against IFAD on a terminated employment contract that went before the ILO.
Busy times at the ICJ indeed.

On November 9

On this day in ...
... 2005 (5 years ago today), Belgium-born Muriel Degauque committed a suicide bombing attack in Baghdad, Iraq. The 38-year-old (left), daughter of a factory worker and a secretary, had been raised a Catholic. But she'd converted to Islam a few years earlier, and had become increasingly estranged from her family.

(Prior November 9 posts are here, here, and here.)

Stripping (Women) of Veils, and (Men) of Citizenship

Almost a year ago, I posted on the Sarkozy government's plan to introduce a law prohibiting women from wearing the burqa (right, credit) in public. In February, the government did just that, but on reviewing it, the Conseil d'Etat found there was no "indisputable legal basis" for a comprehensive ban and advised limiting the ban to public buildings. President Sarkozy will nevertheless submit a bill to the council of ministers later this month that contains a blanket ban: "no one may wear in public clothing designed to hide the face," under penalty of a 150-euro fine and/or "citizenship training." The ban would therefore include bandannas and masks worn by protesters, as well as niqabs (left, credit) such as the one worn by a French woman arrested in late April in Nantes for "driving in uncomfortable conditions" (French Vehicle Code art. 412-6). Officers claimed her niqab obstructed her vision; others say motorcycle helmets obstruct vision just as much.
The arrest came shortly after President Sarkozy announced his support for a full ban and intent to try to get around the Conseil d'Etat. Heating up the debate, the Interior Minister announced he would seek to have the woman's companion stripped of his citizenship for possible polygamy and child-welfare benefits fraud, whereupon the Minister of Immigration and National Identity announced plans to provide for a new citizenship-stripping procedure. Such pronouncements have of course been ridiculed: the companion is married to only one of the 4 women with whom he lives and has children. In a land where adultery is not a crime and extramarital relationships, including those that produce children, abound, threatening to strip people of their citizenship for such behavior is comical to say the least. But coming at the same time as Joe Lieberman's plan to strip Americans who join terrorist organizations of their citizenship, you have to wonder if there isn't some kind of nationalist trend afoot: unAmerican, unFrench, un(fill in the nationality) criminal behavior warrants not a criminal penalty, but exclusion from the nationality--a penalty deemed so counter to human dignity that the US Supreme Court held it violated the 8th amendment, as it constituted "the total destruction of the individual's status in organized society" (Trop v Dulles, 1958).
Clearly, a more dignified solution must be found, as anti-Muslim laws stigmatizing women are spreading across Europe. Just last Monday, a veiled woman was stopped in a post office in Novara, in north-western Italy and fined 500 euros for violating Novara's new by-law prohibiting clothing that prevents immediate identification in public. While Italy has banned masks or clothing that makes identification impossible since 1975, the measure is designed to prevent terrorism and the exception for "justified causes" has generally been interpreted as allowing veils. Local governments have begun to introduce stricter measures, however, and the Northern League has submitted a bill to parliament to specifically prohibit Islamic face veils.
Belgium seems poised to win the race to ban veils, however: its law prohibiting masks and veils in public passed in the lower house and is waiting to go before the Senate. Meanwhile, a German Euro-deputy has suggested enforcing such a ban across Europe.
In France, one of the major arguments made against face veils is that they are "an outrage to the dignity of women." Robert Badinter, therefore says he is "entirely in favor" of criminally prosecuting anyone who "pressures a woman into wearing a burqa." This is at least consistent with the principle of protecting women's dignity. But what to do about women who choose to wear veils? And more particularly, women like the driver in Nantes, a French adult convert to Islam whose freedom of choice cannot be said to be compromised by family practices?

On May 3

On this day in ...
... 1952, Jane Brigode (right) died 82 years after she'd been born in Rummen, Belgium. A feminist and political activist, she joined Marthe Boël in spearheading women's political organizations. In 1920 the 2 held the 1st women's conference; a year later, they cofounded Union des femmes liberales de l’arrondissement de Bruxelles, and 2 years later, they and Alice Buysse cofounded the National Federation of Liberal Women. Brigode also served as co-President of Belgium's Liberal Party during World War II, from 1940 to 1945.

(Prior May 3 posts are here, here, and here)

On January 27

On this day in ...

... 1950 (50 years ago today), by Executive Order 10099, U.S. President Harry S. Truman declared that the mutual defense plan of the North Atlantic Treaty Organization was in effect. (credit for photo of Truman signing NATO treaty in July 1949) The move that prompted diplomats from Belgium, Britain, Denmark, France, Italy, Luxembourg, and Netherlands, and Norway to meet at the international conference room of the State Department in Washington, D.C., in order to sign bilateral agreements with the United States that enabled them to receive U.S. military matériel. The total cost of this military aid was set at $1 billion.

(Prior January 27 posts are here and here.)

On January 24

On this day in ...
... 1877, Louise Van den Plas was born in Brussels. After hearing a number of lectures on the subject at the very end of the 19th Century, she founded the 1st Catholic feminist movement in Belgium in 1902. Among its premier issues were women's suffrage and the social and economic betterment of women. An author and journalist, Van den Plas died in Belgium in 1968.

(Prior January 24 posts are here and here.)

On January 23

On this day in ...
... 1984, Nicole Lumen became the 1st woman to preside at a cour d'assizes -- a lower criminal court -- in Belgium.

(Prior January 23 posts are here and here.)

On December 3

On this day in ...
... 1914 (95 years ago today) , during World War I, Belgians, who'd been occupied over the course of recent months by the forces of the German Kaiser Wilhelm II, were delivered this proclamation:

His Majesty, the Emperor and King, having deigned to appoint me Governor-General in Belgium, I have to-day assumed the direction of affairs.
BARON VON BISSING. Brussels, December 3, 1914.

The rule of Moritz Ferdinand Freiherr von Bissing (above right), a Prussian military general, would be marked by collective punishments (violative of the Article 50 of the Annex to the 1907 Hague Convention No. IV respecting the Laws and Customs of War on Land) and other harsh measures. Bissing signed the death warrant of a British nurse working with the Red Cross in Brussels -- Edith Cavell (left), who'd organized an underground network through whch Allied soldiers escaped Belgium.

(Prior December 3 posts are here and here.)

Rosamond Carr, foremother

(Thanks to guest blogger Alice Edwards for her guest post and this tribute to IntLawGrrls' newest foremother)

Rosamond Carr, with whom I'm pictured a right, was a wonderful feminist in her own way, a real humanitarian, mother of Rwanda’s orphans, and a good friend to me.
Having started out life in New York as a fashion design hopeful, New Jersey-born Rosamond moved to the Belgian Congo after having married British “big game hunter and filmmaker” Kenneth Carr. He was 24 years her senior -- although she shared with me that she had not known that he was so much older than her when they married. A few years into the marriage, it foundered.
But by then, it seems, Rosamond had fallen in love with Africa, and instead of fleeing back to the States, she bought a farm in Rwanda, growing flowers for hotels, businesses and embassies in Kigali and living modestly. It was at this time that she started raising money to send young Rwandans to school and university, many of them the children of her farm workers. She never married again, nor had any children of her own.
Rosamund's life became intertwined with another amazing woman -- and IntLawGrrls foremother --the zoologist Dian Fossey. Rosamond always spoke fondly and vividly about Fossey if you’d ask her. Identified in the Fossey film biography Gorillas in the Mist (1988) as "Roz Carr," Rosamond is portrayed by actress Julie Harris.
Rosamund refused to leave her home and her staff during the April 1994 genocide in Rwanda. Her farm was in the foothills of the Virunga mountains, close to some of the worst slaughter and fighting in the country. Eventually she was evacuated and many of her staff and friends were killed, but she returned in August the same year to turn her own pyrethrum-drying plant into the Imbabazi Orphanage for children who had lost their parents in the genocide. She was still running the orphanage when I met her in 2000-2001, when we became neighbours in the lakeside village of Gisenyi, on the Congo border. I was there working for the U.N. High Commissioner for Refugees.
Though she turned 90 during that time, Rosamond incredibly active for her age. She was generous to a fault, and her beautiful garden was a real sanctuary from what was still difficult Rwandan politics at that time. We corresponded by old-fashioned letter until she died in 2006, aged 94. Her life is portrayed her memoir, Land of a Thousand Hills: My Life in Rwanda (1999), co-authored with her niece, Ann Howard Halsey.
Rosamond's selflessness inspires me to this day.

On June 26

On this day in ...
… 1975, Indian Prime Minister Indira Gandhi (right) declared a state of emergency in India, granting herself extraordinary powers and launching a massive crackdown on civil liberties and political opposition. Her opponents had long made allegations that her party had indulged in electoral malpractice to win the 1971 elections. (image credit) After 1972, her popularity started decreasing due to mass poverty and corruption. By 1974, there was severe turmoil across India. In June 1975, a court found her guilty of electoral fraud, excessive election expenditure, and the use of government machinery and officials for party purposes. It ordered her removed from her seat in Parliament and banned from running for elections for an additional six years. Rather than face the charges, on this day Gandhi declared a state of emergency. Political foes were imprisoned, impending legislative assembly elections were indefinitely postponed, constitutional rights were abrogated, and the press was placed under strict censorship. With her approval, slum dwellings were ordered removed, and, in an attempt to curb India's growing population, a program of forced sterilization was initiated.
… 1949 (60 years ago today), Belgium (flag at left) lifted the restrictions on voting rights for women. Since 1919, all women who were not prostitutes could stand for election and vote in municipal elections; on this day in 1949, women were given the right to vote at all levels. Continued underrepresentation of women in parliament led to the introduction of the Smet-Tobback law in 1994, which forced parties to include no more than 2/3 of candidates of either sex on electoral lists. The rules were applied for the first time in the June 13, 1999 elections, leading to a virtual doubling of the number of women in the House.

(Prior June 26 posts are here and here.)

On June 4

On this day in ...
... 1939 (70 years ago today), the U.S. Coast Guard rebuffed the SS St. Louis, "a cruise ship carrying more than 900 Jewish refugees from Nazi Germany," when it tried to enter the United States via Miami, Florida. (credit for photo of refugees aboard the ship) As a Miami Herald report recounted on the 20th anniversary of this event, the ship had sailed from Hamburg and 1st attempted to disembark in Havana, Cuba. It would be forced to return to Europe, where, according to the U.S. Holocaust Memorial Museum, Britain, the Netherlands, Belgium, and France took in 288, 181, 214, and 224 passengers respectively. All but one of the persons relocated to Britain survived the war; of those returned to the European continent, only about half -- 278 -- "survived the Holocaust."
... 1970, in "an event officially designated by the King as Tonga's 'reentry into the community of nations,'" the South Pacific island Kingdom of Tonga won independence from Britain. It had been a protectorate of the latter country since conclusion of a treaty of in 1900. Today Tonga (flag at left) is the last kingdom in Polynesia.

(Prior June 4 posts are here and here.)

On March 18

On this day in ...
... 1974 (35 years ago today), at a meeting in Vienna, Austria, 7 of the 9 member states of the Organization of the Petroleum Exporting Countries lifted an embargo on selling oil to the United States that had been in effect since October 1973. Only Libya and Syria voted against ending the OPEC ban, which, as The New York Times reported, "had been imposed because of American support for Israel," but which was being eased by evidence that U.S. policy in the region had "'assumed a new dimension.'"
... 1950, the Belgian government collapsed following a referendum favoring the return, from exile in Switzerland, of King Leopold III. The vote revealed deep divisions among government officials and among regions of the multi-ethnic country (right) respecting the king's actions during World War II: "He had been accused of co-operating with the Nazis and displaying fascist tendencies," and "[h]e surrendered Belgium unconditionally to the Germans in 1940 -- despite the opposition of his cabinet." Today his son, King Albert II, serves as the country's constitutional monarch. (credit for map depicting Belgium's Flemish community in orange, its French community in red, and its German-speaking community in green)

(Prior March 18 posts are here and here.)

On February 13

On this day in ...
... 1542, Catherine Howard was beheaded for adultery at the Tower of London. Of this queen (below right), the 5th of 6 wives of the English King Henry VIII, this website writes:

Catherine Howard did not have an impact upon English history. She is perhaps the most inconsequential of Henry VIII's six wives, her reign as queen a very brief eighteen months. She bore no children and made no lasting impression upon those who knew her. But it should be remembered that she was thirty years younger than her husband, a silly young girl who never understood the dangers of royal regard. Her life was over before it had truly begun; we can only wonder how it might have ended differently.

Not a word of fault found with the fatally fickle king.
... 1961, officials in the province of Katanga announced that the man who'd served from June to September 1960 as Congo's 1st Prime Minister, Patrice Lumumba, was dead. It was claimed that Lumumba (below left) had been "killed by villagers trying to take him into custody"; however, years later that was deemed not to be the whole truth. According to the BBC:

A Belgian Government inquiry into the murders reported in November 2001 that they would not have taken place without the complicity of Belgian and American intelligence services.
In February 2002 the Belgian Government made its first official apology for its part in the assassinations and has set up a $3m fund to encourage democracy and development in the Democratic Republic of Congo.

On October 18

On this day in ...
... 1908 (100 years ago today), a treaty was concluded by which Belgium annexed the Congo Free State. Within a month the Belgian Parliament passed a law authorizing colonial administration. The ensuing century roiled the central African state, which still struggles to govern itself. Excellent accounts of the era depicted in the 1910 postage stamp at right may be found in fiction -- for example, Barbara Kingsolver's Poisonwood Bible (1998) -- and nonfiction -- Adam Hochschild's King Leopold's Ghost (1998) -- alike.
... 1978 (30 years ago today), President Jimmy Carter ordered U.S. production of some parts of the neutron bomb, "reserving judgement on assembly or deployment." A news video of the White House announcement is available here.

'Nuff said

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

'Le CIO et les Jeux olympiques ne peuvent imposer des changements à des nations souveraines ou régler tous les maux du monde.'

that is,

'The International Olympic Committee and the Olympic Games can neither force sovereign nations to change nor settle all the world's problems.'

-- IOC President Jacques Rogge, in a LeMonde interview. Rogge, who represented Belgium in the 1968, 1972, and 1976 Olympics, insists that the Olympics' primary purpose is to improve sports, yet added that the just-concluded Beijing Games promoted better understanding between China and the rest of the world.

Death in absentia at home; trial abroad awaits

Le Monde reports that former Chadian President Hissène Habré (dressed in white in the photo at left) was convicted of crimes against humanity and yesterday sentenced to death by a criminal court in N'Djamena, Chad's capital city. But the defendant was not present: he's been in exile in Senegal since 1991.
"Africa's Pinochet" is the nickname that Human Rights Watch gave Habré, whose government is said to have "carried out some 40,000 politically motivated murders and 200,000 cases of torture" from when he seized power in 1982 and when he was deposed in 1990. That NGO maintains a Case against Habré webpage replete with documents and other links.
The premier situs for that case has not been Chad, however. Senegal indicted him, but its courts initially rebuffed the prosecution. Then Belgium issued an international arrest warrant. Senegal thus sought to extradite Habré, but its courts against rebuffed the effort. Then, in 2006, the African Union "[m]andate[d] the Republic of Senegal to prosecute and ensure that Hissène Habré is tried, on behalf of Africa, by a competent Senegalese court with guarantees for fair trial." And now? According to Le Monde,

Senegal's Minister of Justice, Madické Niang, indicated in July, after the country's legislature modified its Constitution to permit such a proceeding, that Dakar was 'ready' for the trial of Habré.

(credit for 2000 photo)

Internet Jihad and Free Speech

It's not my role to set off bombs - that's ridiculous," she said in a rare interview. "I have a weapon. It's to write. It's to speak out. That's my jihad. You can do many things with words. Writing is also a bomb.

So says Malika El Aroud, a 48-year-old Belgian "female holy warrior for Al Qaeda" who will not take up arms herself, but encourages men and other women to do so via internet--her weapon of choice since her suicide-bomber husband blew up not only himself, but the anti-Taliban Afghan General Ahmed Massoud, 2 days before the September 11, 2001 attacks in the US.

Both the Council of Europe's 2005 Convention on Terrorism and the European Union's amended 2002 Framework Decision on Terrorism encourage European states to criminalize incitement to terrorism. So-called internet jihad will no doubt be one of the first testing grounds for protecting speech in the struggle against terrorism.

(IntLawGrrl Diane Marie Amann continues this discussion in a post below.)

On May 8

On this day in ...
... 1901, the Ligue des Droits de l'Homme, or Human Rights League, was founded in Belgium. It followed by 3 years the establishment of a similar league in France. According to its website, the Ligue (logo at left) "continues its daily efforts to keep watch over the protection of fundamental rights in Belgium's French community."
... 1973 (35 years ago today), "[a]fter 70 days, two deaths, numerous injuries, countless meetings, bureaucratic bickering and a last-minute gunfight, more than 100 militants lay down their arms and surrendered this occupied reservation town to wary Federal officials" at Wounded Knee, South Dakota. Thus ended a siege by Native Americans at the town on the Pine Ridge Reservation where the U.S. Army had massacred Sioux in 1890. Serving as a medic during the 1973 occupation was Madonna Thunder Hawk (right), who described her experience here.