Remembering Beijing: The Ferraro Factor

(Thanks to IntLawGrrls for the opportunity to contribute this guest post)

Geraldine A. Ferraro, who passed away this weekend, is a symbol of women’s rights advocacy.
As America’s first female candidate of a major party for vice-president, she broke barriers. But readers of IntLawGrrls may not know how actively and directly she influenced women’s rights issues in the international legal context as well.
Appalled by televised reports about the use of rape as a weapon of war by Serbs in the Bosnian conflict, Gerry contacted Madeleine Albright to ask what the new Clinton Administration was doing about it. She was immediately asked to join the Administration’s first delegation to the UN Commission on Human Rights in Geneva, in February 1993, where she helped convince Member States to adopt a separate resolution addressing rape in war.
As Gerry told it, accomplishing this task required her to conduct gender-sensitivity training, too. For example, she found herself telling the male diplomats from the Islamic Conference that they needed to recognize that such sexual violence was not so much an insult to THEIR ‘honor’ (which was all they were prepared to declare) but rather a very real lasting physical and psychological abuse of the women who were victimized. Gerry emphasized that something serious had to be done by the Commission to name it, stop it, punish the perpetrators and aid the survivors. As a result, the Commission adopted a resolution that called for ‘joint and separate action to end this despicable practice,’ as well as for investigations, accountability and assistance to the victims.
Later that year, the protection of women’s rights was affirmed as a major focus of the UN World Conference on Human Rights in Vienna – only a few hundred miles from Bosnia itself.
Gerry was then appointed to head the US delegation to the Commission on Human Rights in Geneva as Ambassador. After she took the reins of the delegation for its 1994 session, the UN created the post of Special Rapporteur on Violence against Women, with a mandate to investigate and intervene to stop abuses worldwide. Additionally, at Gerry’s direction, attention to women’s rights and a gender perspective was incorporated into UN resolutions authorizing many other investigations into human rights abuses.
The following year, after setbacks at a spring Preparatory Conference (“Prepcon”), women advocates realized it was urgent to have strong US leadership on women’s human rights issues as a part of the negotiating team for the upcoming Beijing World Conference on Women, scheduled for September 1995. The World Conference was under attack from various quarters – representatives of the Vatican and Islamic countries had worked vigorously at the Prepcon to place large portions of the draft Platform for Action into brackets (meaning they would remain open to negotiation) and had added proposals challenging the universality of human rights. Some opponents of the Conference offered the concept of ‘human dignity’ as an alternative to that of equal rights (i.e., women might have dignity but may not have equal rights). Others demanded recognition of parental rights and duties rather than the human rights of women and girls, and questioned the use of the word gender. The topic of reproductive rights was challenged directly in ways seeking to undermine advancements stemming from the October 1994 Cairo World Conference on Population and Development.
Gerry was appointed a vice-chair of the US delegation to Beijing in June 1995 and reached out immediately to NGOs and experts alike to work with her and tackle the issues one by one. She engaged in a wide range of informal contacts to try to improve the diplomatic atmosphere—and to reach agreements that affirmed rather than destroyed women’s universal rights. Ensuring a successful outcome in Beijing required her to engage with critics at home, as well as to interact with the representatives of the Vatican and Islamic states from Iran to Sudan. Conference language affirming universality of women’s human rights was threatened by other proposed language that would have both endorsed cultural relativity and emphasized national sovereignty, in particular, through repetition of a key footnote that had ‘saved’ the Cairo conference by encouraging each country to interpret the rights any way it wished. In the end, Gerry Ferraro succeeded in maintaining a US position that preserved the emphasis on universality of women’s rights for all, and concentrated on ensuring equal rights for women.
Hillary Clinton’s remarkable speech at the Conference fixed in delegates’ minds the concept that “women’s rights are human rights” and that they are not something different, inferior, or diminished as compared to other human rights.
The Beijing Declaration and Platform for Action went on to affirm that violence against women was not merely an ‘obstacle’ to equality and peace as had been stated earlier in the 1980 Copenhagen World Conference on Women, but also an abuse that impaired and violated the enjoyment of human rights by women. It defined violence against women broadly – as a phenomenon occurring in public and in private – that had to be prevented, outlawed and punished. The document calls for reporting and monitoring of violations, investigations and prosecutions of perpetrators, due diligence by governments and accountability. The document identifies rape in armed conflict – the issue that spurred Ferraro to engage with the UN’s human rights bodies – as a war crime and under certain circumstances as a crime against humanity or act of genocide. The Beijing World Conference advanced women’s rights both conceptually and politically.
Gerry Ferraro, who was born on Women’s Equality Day (August 26), could claim a victory for the ideas, strategies, and ongoing efforts to bring women’s human rights issues into the mainstream of UN human rights bodies and world attention. Here, as in her unprecedented political candidacy, her efforts and achievements strengthened the position of all women.

(credit for September 12, 1995, UN/DPI 120801 photo by Chen Kai Xing of Ferraro, center, in Beijing)

Not so fast toward the EU?

'Our children must not be burdened by policies of the 1990s.'

So said Serbian President Boris Tadić a few days ago, while laying a wreath near Vukovar, Croatia, where Serb forces executed more than 200 hospital patients as part of a 3-month siege in which more than 1,000 Croats were killed, 5,000 civilians seized, and 22,000 non-Serbs expelled. (credit for Reuters photo)
Tadić said he had come

to pay respect to the victims, to say words of apology, to show regret and create a possibility for Serbia and Croatia to turn a new page.

Part of that post-atonement chapter, Serbia hopes, is European Union membership, so that Serbia no doubt welcomed subsequent EU and the U.S. State Department comments heralding the visit as a welcome step toward reconciliation.
But the move brings to mind the objection that Serge Brammertz (below right), Chief Prosecutor of the International Criminal Tribunal for the former Yugoslavia, raised regarding any plan to allow EU admission while ICTY indictees like former Bosnian Serb General Ratko Mladić remain at large. As we've posted, Brammertz has said:

Be sure to ask countries to support the tribunal. There is a tendency to think, 'Let's move on. Let's take the countries into the international community. We are saying, 'There can be no compromise. There can be no alternative to bringing the fugitives to justice.'

On the Job! Bosnia internship

(On the Job! pays occasional notice to interesting intlaw job notices)

The Mission of the Organization for Security and Co-operation in Europe to Bosnia and Herzegovina is seeking interns for its Judicial and Legal Reform Section.

This Section conducts a countrywide trial-monitoring program for criminal cases, extending from the investigation stage through to the execution of criminal sanctions. Points of particular focus, on which interns (based in the Mission's main office in Sarajevo) will contribute research and analysis:

► Justice sector monitoring and advocacy;

► Accountability for war crimes; and

► Vulnerable individuals -- such as victims of trafficking, domestic violence, hate crimes, and juveniles --who face the justice system.

The findings of the Section's monitoring efforts are used by the OSCE Mission to promote judicial and legal reforms and to provide assistance and advice on human rights conventions and obligations.

Sought are interns with:

► University qualification in law;

► Fluent English; and

► Demonstrated commitment to human rights and rule of law work.

Applications for unpaid Section internships, which last 6 months, are accepted on a rolling basis. To apply, send a cover letter and a completed version of this application form to jobs.ba@osce.org.

2 life terms for Bosnia genocide

The largest trial ever before the International Criminal Tribunal for the former Yugoslavia concluded today with 7 convictions -- and 2 sentences to life in prison -- for crimes committed against Bosnian Muslims in 1995 in the U.N.-protected communities of Srebrenica and Žepa. (photo credit)

Facing life imprisonment following convictions for genocide, extermination, murder, and persecution are 2 of of the defendants, Vujadin Popović, Chief of Security of the Drina Corps of the Bosnian Serb Army and Ljubiša Beara, Chief of Security in the Army's Main staff. Other sentences ranged from 35 to 5 years' impsonment.

The judgment in Prosecutor v. Popović et al. (IT-05-88) "Srebrenica" (which includes a finding of joint criminal enterprise) does not yet appear to be available online. A 15-page summary (!) of the opinions by the panel comprising Judges Carmel Agius (Malta), Kimberly Prost (ad litem, Canada), and O-Gon Kwon (South Korea), is here.

On January 14

On this day in ...

... 2000 (10 years ago today), "in its largest case to date," the International Crininal Tribunal for the former Yugoslavia convicted 5 Bosnian Croat militia members who took part in the April 1993 massacre of more than 100 Muslim civilians in the central Bosnian village of Ahmići. (credit for photo of destroyed Ahmici mosque following attack) The tribunal further imposed sentences of from 6 to 25 years. On appeal, however, 2 of the defendants were acquitted, in a decision written by Patricia Wald, then an ICTY Judge, who recently honored IntLawGrrls as a guest/alumna. I wrote here about that 2001 appellate judgment in Prosecutor v. Kupreškić.

(Prior January 14 posts are here and here.)

Guest Blogger: Nina Tavakoli

It's IntlawGrrls' great pleasure today to welcome Nina Tavakoli (left) as a guest blogger.
As an Associate Legal Officer at the International Criminal Tribunal for Rwanda, Nina assists the Judges of the Trial Chambers with legal research on complex issues of substantive international criminal law, procedure and evidence; in the management of trials; and in the drafting of interlocutory decisions and final judgments.
Before joining the ICTR, she was a litigation lawyer at the international law firm Lovells in London. She's also undertaken short postings at Albania's Anti Human Trafficking Unit and the Defence Section of the War Crimes Chamber of the Court of Bosnia and Herzegovina. Nina holds an LLM in Public International Law from the London School of Economics and a BA (Hons) in Modern and Medieval History from the University of Birmingham.
In her guest post below, she discusses a recent publication, in which she argues for the classification of trafficking in women not as a transnational crime, but rather as an international offense akin to slavery.
Heartfelt welcome!

Bosnia, ICTY & the limits of retributive justice

(My thanks to IntLawGrrls for this opportunity to guest post on the article I recently published in the Journal of International Criminal Justice)

The creation of the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda in 1993 and 1994, respectively, marked a new normative trend of using international criminal justice as a response to war crimes and human rights violations. Yet there is a dearth of empirical research on the extent to which criminal trials do in fact achieve their ascribed objectives.
My article, The Limits of Retributive Justice: Findings of an Empirical Study in Bosnia and Hercegovina, aims both to address this empirical gap in the transitional justice literature and to question whether the confidence and high expectations that such tribunals have generated among their supporters is justified.
Using the ICTY and Bosnia and Hercegovina as case studies, the article examines four particular claims made by the ICTY’s first President, Antonio Cassese. In his "Reflections on International Criminal Justice," 61 Modern Law Review 1, 6 (1998), he contended that criminal trials:
► individualize guilt;
► dissipate calls for revenge;
► establish a historical record; and
► facilitate reconciliation.
The article demonstrates that in the specific case of the ICTY and Bosnia, all except possibly the second of these claims are questionable – in particular, the third and the fourth. The claims are, moreover, unsupported by author’s empirical data. Addressing each of Cassese’s assertions from the least to the most problematic, the article advances two main arguments:
► The first is that while war crimes tribunals have a fundamental role to play in formerly war-torn societies, we should be more realistic about what they can accomplish. High expectations potentially generate deep disappointments, which in turn can undermine the actual achievements of these judicial bodies.
► The second argument is that post-conflict societies, including those in the former Yugoslavia, cannot rely on retributive justice alone to deal with the aftermath of large-scale atrocities. Transitional justice takes many forms and we should not over-rely on criminal trials as a means to achieve justice.
With particular reference to Bosnia, it is suggested that some form of truth and reconciliation commission should be set up to complement the work of the ICTY. Such a commission, in contrast to the ICTY, would be based in Bosnia itself, which would help to create a greater sense of local ownership and interest in the truth-finding process. Its immediacy, moreover, would mean that a truth and reconciliation commission was directly a part of people’s everyday lives, thus making it a potentially significant tool for helping to combat the problem of denial and competing truths -- a problem that remains a fundamental obstacle to reconciliation in Bosnia.
Ultimately, what this article seeks to demonstrate is the importance of questioning commonly made, yet untested, claims about war crimes tribunals, and hence the imperative of further empirical research in this area using different case studies.
The macro-achievements of tribunals like the ICTY -- for example, in terms of their jurisprudence and contribution to the development of international law -- are significant. Examining their successes and failures at the micro-level, however, through a focus on the actual impact they are having on the ground, is crucial for any comprehensive assessment of their work, and hence for a fuller appreciation of both the strengths and the limitations of retributive justice in complex post-conflict societies.

What do women want? Tribunals' due attention to the needs of women & children

(Part 2 of a 3-part guest post on what women want from international criminal justice, by Judge Patricia M. Wald; Part 1 is here)

Womankind has a right to expect much from, and has a strong stake in the success of, international and hybrid tribunals.
Women and children represent the largest constituency of international humanitarian law and the tribunals that breathe life into it. They are the bulk of the casualties of war and the refugees of combat, the most numerous victims of war crimes, crimes against humanity, and genocide. A few statistics:
► One out of every 150 persons on earth is a refugee or displaced person due to armed conflict or human rights violations; at least 75% of them are women or children.
► In the conflict in Bosnia, there were an estimated 20,000 victims of sexual assault.
► An expert panel concluded that nearly every woman and girl over the age of 12 who survived the Rwandan genocide was raped.
Similar stories are being told today in Congo, in Darfur, and elsewhere. And so it has gone, for centuries, as far as women are concerned.
But the winds of war are changing direction, a bit anyway. And women worldwide look to our tribunals to stiffen up the breezes, to make it more perilous for combatants as well as civilian and military leaders to ignore or downplay the sufferings of women as “collateral consequences” of war. Just as they bear the greatest impact of war, women should have a right to claim a high priority in the strategic thinking of the tribunals.
But what does that mean in practice?
Dramatic strides have been made. All the tribunal charters specify, or have been interpreted to include, rape and other sexual violations as war crimes and crimes against humanity. Tribunal jurisprudence has elaborated on the variations of sexual abuse. Examples:
► In the Kristić case on which I sat, the International Criminal Tribunal for the former Yugoslavia pronounced the effect of executing more than 7,000 young male household heads – though sparing the women – as a form of genocide that intentionally destroyed a targeted group of Muslims in Srebrenica.
► Tribunals have made rape prosecutable by eschewing rigid definitions that required actual physical force in favor of recognizing broader kinds of coercion and intimidation, and have declared rape in some circumstances to be a form of torture and a tool of genocide.
► Virtually all the recent indictments from the International Criminal Court have contained gender-based allegations, although there is a need to flesh out the contours of as-yet-charged crimes like forced pregnancy and trafficking in women and children.
What else should women want – or expect?

Early investigation
I have heard repeated complaints from some women inside tribunal prosecution offices that the focus on gender-based crimes must, but does not always, come at the very beginning of an investigation. Field investigators, the first responders, have to be sensitized to the range of potential crimes involving women and children and how best to elicit the information to prove them.
In many cultures, sexually abused women are not the most vocal of complainants or the most eager of witnesses. Gender crimes may indeed be harder to investigate than other kinds of war crimes. They are often harder to prosecute as well, not only because of the traumatic effects on the victim who must face her perpetrator anew in the courtroom, but also because of the difficulty of linking the rapist with the military or civilian commander in a faraway headquarters who ordered or approved the rape-terror strategy.
Yet women have a right to expect that these despicable crimes will be given their rightful priority in the tribunals’ strategic litigation plans.
This means, in the view of many women tribunal veterans, intensive gender-crime training for all levels of prosecutorial staff. Judges too. And in the words of one such veteran, this means “more than one three-hour lecture.”

Women & the judicial process
Women judges and prosecutors also have special obligations to pay attention to the treatment of other women in the judicial process. The women who work for them, and those who appear before them as witnesses or litigators, can feel less isolated or out of place when there are women in positions of power and prestige in the courtroom. This proved true in my own experience in U.S. courts as well as at the ICTY. Some research shows that litigants’ evaluation of justice is directly related to how they perceive their own treatment by court personnel; in turn, how the judges and prosecutors act toward them will trickle down to all levels of courthouse personnel.

Witnesses & victims
In the tribunals there is a special need for women judges and prosecutors to be sensitive to the plight of women witnesses and victims. Often these women and young girls have been traumatized not only by the crimes committed but by threats of retaliation and by shunning in their villages. The tribunals have set up Victims and Witnesses Protection units to offer escort services, temporary housing during court proceedings, and in some cases counseling; it is vitally important that women judges and prosecutors champion the Registry’s financial needs for adequate services.
I am sorry to say that women witnesses have occasionally, albeit rarely, faced hostile or demeaning questioning or even derogatory comments and embarrassing attempts at humor at their expense, sometimes participated in by judges. On those rare occasions women judges have a special obligation to admonish counsel and to express their own discomfort, not to sit silently by or let them go unchallenged.

Victim compensation
Based on my own trial experiences, I know that women who have suffered the loss of family members – one woman who testified in one of my trials saw three generations of her menfolk wiped out in a week – want not only accountability but compensation. Only the ICC and the Extraordinary Chambers in the Courts of Cambodia have direct authority to grant it. Where the money will come from is, of course, a primary problem. Here is an area in which women and their allies must themselves be reasonable in their expectations and demands; they cannot expect full compensation for their economic losses, let alone their emotional sufferings. And after a decent interval has passed to see how the system works, they should be tolerant enough to cooperate in an evaluation as to both how intense an intervention by victims the process can sustain and what priorities on compensation from a limited fund are most reasonable.

Public outreach
Women outside the tribunal process also need to be given the opportunity to understand what the tribunals are trying to do in order to draw their own judgments on how successful they are. Some hybrids, like the Special Court for Sierra Leone, have pioneered in going out into the villages to explain their goals and processes. The necessity for understanding and support from women in the outside world also suggests the ICC might take some of its hearings out of The Hague and go to the places where the violations occurred, so that the affected communities can see for themselves the merger of crime and punishment.

(Tomorrow: interpreting crimes against humanity to protect women in peacetime)

On May 22

On this day in ...

... 1992, the General Assembly resolutions admitted 3 new U.N. member states, Bosnia, Croatia, and Slovenia. All formerly had been part of the state then known as the Socialist Federal Republic of Yugoslavia, but broke off, following armed conflicts of varying length and brutality, in the aftermath of the 1980 death of Yugoslav leader Josip Broz Tito, who'd ruled the SFRY with an iron hand since 1953. (map credit)

... 1762, the empires of Sweden and Prussia concluded the Treaty of Hamburg, bringing an end to conflict between the 2 countries during the Seven Years War (1756-63) and returning to the territorial status quo as it had existed between those countries before that war began. The alliance was desired by Prussia after it had broken off relations with the Russian empire.

(Prior May 22 posts are here and here.)

Who Should Engage in Post-Conflict Reconstruction -- Civilians or Military?

Last week, President Barack Obama announced that although he hoped to send 300 civilians to Afghanistan, he was unable to find the economists, lawyers, and political scientists he had hoped to send. Therefore, he announced, he would instead engage soldiers and the military to do the post-conflict reconstruction programmatic work.

Post-conflict reconstruction is a relatively new field, if it can even be said to be a field, in which internationals and locals work to normalize and build sustainable institutions and infrastructure following war. Aspects of post-conflict reconstruction can include legal drafting, democratization, human rights institution building, gender mainstreaming (often sorely missing, as I have written in my article Lessons from Arizona Market: the Impact of Neoliberlism and the Free Market Mindset on Women in the Post Conflict Reconstruction Process).
The entire enterprise is highly susceptible to critique for a mulitude of reasons, many of which I have written in my article Deconstructing the Reconstruction: Human Rights and the Rule of Law in Post War Bosnia and Herzegovina. The enterprise smacks of colonialism, in particular when internationals are put in positions akin to governors of a colonial outpost, as was arguably the case in Kosovo and, for some of the postwar period, in Bosnia and Herzegovina. This engenders fears of western imperialism, particularly when programs which work in the United States or Europe are imposed or superimposed onto other legal, cultural, political, and economic systems. It is particularly sensitive to the often whimsical and fleeting interests of donors (at the nation-state, organizational, and private level) that would often prefer to see their money used on "sexier" issues than those that have been carefully assessed to be real priorities.

The possibility, then, that military personnel would become the de facto internationals to engage in these operations still in a nascent phase of normative development, and already fraught with legitimate critiques from virtually every scholarly disclipline, is frightening. This is not to say that military personnel are not inherently capable -- or also are, in fact, economists, lawyers, and political scientists, although most are not. But military are on the ground to maintain and foster security, which is a different objective than having the skill and priority of creating sustainable rights regimes.

When I heard that President Obama was planning to send military personnel to do post-conflict reconstruction work because he could not find 300 U.S. civilians to do the job, I wanted to tell him that, in fact, although not well publicized, there are many divisions within federal agencies and private organizations that have produced thousands of U.S. civilian professionals and scholars who have already engaged in post conflict reconstruction work. For instance:

► A division within the Department of State sent hundreds of American lawyers to Bosnia and Herzegovina to assist with the first and second round of elections, and then seconded several hundred to the Organization for Security and Co-operation in Europe as experts in human rights, elections, governance, democratization, media, education and gender.

► A different division of the Department of State has sent hundreds of American lawyers as Junior Professional Officers to the United Nations.

► The American Bar Association's CEELI program regularly sends lawyers and judges abroad to work in developing legal systems.

► A multitude of agencies of the United Nations employs Americans on a contract basis at any give time.

It is high time that the United States developed databases of expert Americans with international experiences and kept these people at the ready as potential surge teams. We exist in the thousands at any given time. Rather than turn these crucial tasks over to the military, already stretched to and beyond its capacity, the United States must begin to recognize its existing -- albeit informal -- core of civilians trained in aspects of post-conflict reconstruction. And it must find a way to make it feasible to call up and send these civilians, rather than to engage the military to become responsible for post-conflict reconstruction work.

1st court-released Gitmo detainees go home

This week has seen the end of a long and painful journey for three of Guantánamo Bay’s most well-known detainees.
This Tuesday Mustafa Ait Idir (right), Hadj Boudella, and Mohamed Nechla returned to their adopted homeland of Bosnia and Herzegovina after spending six years in U.S. custody as “enemy combatants.” The men, together with their compatriots Saber Lahmar, Lakhdar Boumediene and Belkacem Bensayah, were at the center of the U.S. Supreme Court’s latest rejection of the Bush administration’s executive detention policies. In that case, Boumediene v. Bush (discussed earlier here), the Court upheld the petitioners’ right to challenge their detention under the constitutional privilege of habeas corpus and ruled that the government’s Combatant Status Review Tribunals were inadequate substitutes for habeas review. In remand proceedings last month, Judge Richard Leon, of the U.S. District Court for the District of Columbia, ordered the government to release all but Bensayah, on the ground that there was insufficient evidence to justify their continued detention.
The U.S. Department of Defense announced the transfer of Idir, Boudella and Nechla in a terse statement this Tuesday, after which the men were flown to the Sarajevo airport. There they were debriefed by local authorities and reunited with their families, with whom they have had no contact for at least six years.
Upon his return to Bosnia, Idir had this to say about his detention in Guantánamo:

For almost seven years, I was at the end of the world, at the worst place in the world. It would have been hard even if I had done something wrong (but) it is much harder if one is totally innocent.

All six men had been transferred to U.S. custody in 2002, under suspicion of plotting to attack the U.S. embassy in Sarajevo -- despite the fact they they had been acquitted of those very same charges just months earlier by the Supreme Court of Bosnia and Herzegovina. Unhappy with that outcome, in 2002 U.S. officials pressured Bosnian authorities to surrender the men or risk losing American presence in their country. Three of the six men had remained in continued executive detention until Tuesday.

Boumediene (right) and Lahmar are still at Guantánamo, awaiting release.

Genocide 60 years after the Convention

Perhaps* worth checking out:

A CNN documentary analyzing global response -- or lack thereof -- to genocide. The broadcast, set for 9 p.m. Eastern time tomorrow, December 4, is meant to mark the adoption of the Convention on the Prevention and Punishment of the Crime of Genocide on December 9, 1948. That's 60 years ago next Tuesday.
In the 2-hour documentary, CNN reporter Christiane Amanpour (above left) (photo credit) will present interviews not only with world leaders, but also with persons personally affected by atrocities in, for example, 1970s Cambodia, 1980s Iraq, 1990s Bosnia and Rwanda, and 2003 Darfur. According to a CNN release, the documentary concludes

that instead of using a U.N. treaty outlawing genocide as a springboard to action, political leaders have invoked reason after reason to make intervention seem unnecessary, pointless and even counter-productive.

The conclusion dovetails with the one that Samantha Power reached respecting the United States in her Pulitzer Prizewinning book A Problem from Hell (2003) -- itself worth a reread at this anniversary time.

* Why "perhaps," one might ask? Surely CNN deserves much credit for devoting resources to this important issue. Yet this prospective viewer remains wary on account of the title chosen: Scream Bloody Murder. Let's hope the documentary itself is far less sensationalist.

'Nuff said

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

Mugabe proved he still had his despotic chops by recently winning an election that he lost.

-- Daily Show commentator Lewis Black, on why Robert Mugabe (left) of Zimbabwe won the gold medal in Black's "Evil Dictator Awards" contest. (Latest news on Zimbabwe's election crisis here.) Sudan's Omar al-Bashir took the silver medal, and the bronze medal went to former Bosnian Serb leader Radovan Karadžić.
Video of the award "ceremony" here.

On May 30

On this day in ...
... 1992, by Resolution 757 of the U.N. Security Council, an embargo "of any commodities or products" was imposed on the Federal Republic of Yugoslavia (Serbia and Montenegro) as a sanction for its failure to end fighting in Bosnia and Herzegovina.
... 1907, Germaine Tillion (left) was born in Allègre, France, to a mother who was a writer and a father who was a judge. An anthropology student at the University of Paris and other schools, she went to northeastern Algeria 4 times in the 1930s on missions to study Berbers and other groups. She would become, in the words of the French daily Libération, "a pioneer in anthropology and a visceral opponent of all totalitarianisms." On August 13, 1942, the Gestapo arrested her for having helped form the French Resistance to Nazi occupation. She endured 3 years at the Ravensbrück concentration camp for women in eastern Germany (a camp about which we posted here in last year's Women at Nuremberg series). At the same camp her mother, Emilie Tillion, perished in a gas chamber on March 2, 1945. In the post-World War II period she condemned torture of Algerians by the French and violence on both sides of the conflict. "As a Gaullist and a Catholic, she worked on several occasions as a 'middle man' between French authorities and Algerian activists." A leading intellectual, Tillion was the author of many works, among them France and Algeria: Complementary Enemies and Ravensbrück. Tillion was honorary director of the School for Advanced Studies in the Social Sciences in Paris when she died on April 19 of this year, at her home in Saint-Mandé, France. Tillion was 100 years old.

On January 2, ...

... 1890, encouraged by his wife, Caroline Scott Harrison, President Benjamin Harrison hired Alice B. Sanger as a stenographer, making her the 1st woman to work for pay at the White House as anything other than a domestic servant. Sanger went on to work for 40 years at the U.S. Postal Service in Washington.

... 1993 (15 years ago today), leaders of the Bosnian Serbs, Bosnian Muslims, and Croats -- the 3 factions at war for nearly a year in the former Yugoslavia -- met in Geneva at the instance of U.N. special envoys Cyrus Vance and Lord Owen. The talks would fail, and peace accords would not be signed for another 3 years.

On December 14, ...

... 1985, Wilma Mankiller (left) became the 1st woman Chief of a major Native American tribe, receiving 56% of the votes cast for leader of the Cherokee Nation. She had learned skills in organizing for the rights of women and others in San Francisco, where she was "a shy housewife and mother in her 20s," named Mrs. Hugo Olaya, before becoming politicized when she joined the occupation of Alcatraz. She then moved back to Oklahoma to apply her skills on behalf of her people. Reelected Chief once, Mankiller resigned in 1995 because of ill health.

... 1995, 3 years of bloodshed in the onetime Yugoslavia province, Bosnia-Herzegovina, ended when leaders of Bosnia, Serbia, and Croatia signed the Dayton Accords at a ceremony in Paris. The peace accords, which were negotiated at a U.S. military base in Ohio, established Bosnia as an independent state.

A community of courts still working out bugs

In addition to tighter waistbands, the Thanksgiving holidays yielded some interesting developments in the “community of courts” adjudicating international criminal law. For one, the International Criminal Tribunal for Rwanda (ICTR) finally formally requested France to prosecute Fr. Wenceslas Munyeshyaka (left) and Laurent Bucyibaruta (no photo available), two Rwandans suspected of genocide who had been twice arrested in France. The ICTR had charged the pair with, inter alia, genocide and incitement to commit genocide and various crimes against humanity (extermination, murder and rape). Rwanda has already tried and convicted Munyeshyaka, a parish priest, in absentia. The two have been under investigation in France for many years pursuant to a lawsuit filed by victims of the Rwandan genocide.
The Prosecution had requested France to proceed pursuant to Rule 11bis of the ICTR Statute, which reads in operative part:

(A) After an indictment has been confirmed and prior to the commencement of trial, irrespective of whether or not the accused is in the custody of the Tribunal, the president may appoint a bench of three Permanent Judges selected from the Trial Chambers (hereinafter referred to as the “Referral Bench”), which solely and exclusively shall determine whether the case should be referred to the authorities of a State:
(i) in whose territory the crime was committed; or
(ii) in which the accused was arrested; or
(iii) having jurisdiction and being willing and adequately prepared to accept such a case,

so that those authorities should forthwith refer the case to the appropriate court for trial within that State.

Rule 11bis was passed by the Tribunals’ judges to help facilitate the two ad hoc Tribunals’ Security Council-mandated Completion Strategies. U.N. Security Council Resolution 1503 (2003) required the ICTR to formulate a strategy to transfer cases involving lower-level accused to competent national jurisdictions. Subsequently, U.N. Security Council Resolution 1534 (2004) called on the ICTY/R prosecutors to review their respective case loads

with a view to determining which cases should be proceeded with and which should be transferred to competent national jurisdictions.

These are not the first such referral efforts from the ICTR. Indeed, the Rwandan Rule 11bis proceedings have been plagued by a series of legal snafus that reveal that the international community has not yet developed a seamless system of international justice. Last year, the ICTR denied a referral of Michel Bagaragaza (right) to a domestic forum whose operative penal code lacked the particulars of international crimes, even where the underlying conduct was considered criminal. See Prosecutor v. Bagaragaza, Case No. ICTR-05-86-AR11bis, Decision On The Prosecution Motion For Referral To The Kingdom Of Norway (May 19, 2006). Norway had enacted a general penal provision providing for the assertion of jurisdiction over some crimes (including murder) when committed by a foreigner, provided that the prosecution was authorized by the king. The maximum penalty available under Norwegian law was 21 years. In its submission to the ICTR in support of the proposed referral, Norway explained that in ratifying the Genocide Convention, its Parliament considered it unnecessary to enact implementing legislation as all of the conduct prohibited under the Convention was already criminal under existing provisions of its criminal law. Proof that the defendant was acting with genocidal intent would operate as an aggravating factor at sentencing.
In denying the referral, the Trial Chamber acknowledged that although Norway could lawfully exercise extraterritorial jurisdiction over the defendant, it lacked full jurisdiction within the meaning of Rule 11bis, which requires a showing of jurisdiction ratione materiae (subject matter jurisdiction), ratione personae (jurisdiction over the person), ratione loci (territorial jurisdiction), & ratione temporis (temporal jurisdiction). The Trial Chamber found that without a penal provision on genocide, the requisite legal framework did not exist to properly prosecute the conduct of the accused and accord an appropriate punishment based upon the charges pending before the Tribunal. In this regard, the Trial Chamber considered the adjudication of the defendant’s specific intent to commit genocide to be crucial in any subsequent domestic prosecution. A prosecution for mere homicide would not, in the Trial Chamber’s estimation, give

Bagaragaza’s alleged criminal acts … their full legal qualification under Norwegian criminal law.

Id. at para. 16.
On interlocutory appeal, the Prosecution argued that it was enough to show that the defendant would be prosecuted for the underlying conduct, even if the crime to be charged did not contain legal elements identical to the crimes within the ICTR Statute. For support, the Prosecution noted that Rule 11bis concerns the referral of a “case” and not a “crime.” The Appeals Chamber disagreed, noting that the prohibitions against homicide and genocide protect different values:

[t]he penalization of genocide protects specifically defined groups, whereas the penalization of homicide protects individual lives.

Although the Appeals Chamber acknowledged that its ruling would impact the ability to make further referrals, it remained convinced that it could not

sanction the referral of a case to a jurisdiction for trial where the conduct cannot be charged as a serious violation of international humanitarian law.

Id. at para. 18.
The Prosecution subsequently amended the Indictment to include charges of war crimes as alternative counts. Eventually, the ICTR referred Bagaragaza’s case to the Netherlands, which indicated that it could prosecute the defendant for the charged crimes under the War Crimes Act of 1952 and the Genocide Convention Implementation Act of 1964, although some open questions remained regarding jurisdiction rationae personae. See Prosecutor v. Bagaragaza, Case No. ICTR-05-86-11bis, Decision on Prosecutor’s Request for Referral of the Indictment to the Kingdom of the Netherlands, at para. 12 (April 13, 2007). A Dutch court subsequently ruled, however, that the Genocide Implementation Act was inapplicable, because it allowed for the exercise of universal jurisdiction only where a case was transferred to the Netherlands from another jurisdiction in conformity with the Dutch Criminal Code, which requires a treaty basis for transfer from a “foreign state.” Id. at para. 22. Accordingly, the Prosecution’s request for referral was withdrawn and Bagaragaza was returned to custody in Arusha, notwithstanding that his security was in jeopardy as a result of his cooperation with the Prosecution. He has languished in detention in Arusha ever since. Referral to Rwanda has been foreclosed out of concerns for due process and the possibility of the death penalty there.
Referrals to Bosnian domestic courts have been somewhat smoother. Also over the Thanksgiving holidays, the Appeals Chamber for the Bosnian War Crimes Chamber affirmed the 34-year sentence of Gojko Jankovic (left). The case came to the Bosnia special court via a prosecution request for referral from the International Criminal Tribunal for the Former Yugoslavia (ICTY). The ICTY had charged Jankovic with torture and rape as both crimes against humanity and war crimes. In considering the Prosecution’s referral motion, which the defendant opposed, an ICTY Referral Bench ruled that both the criminal code of the former Yugoslavia (which was in place when the defendant acted) and the new criminal code of Bosnia-Herzegovina (which was enacted after the defendant acted) contained provisions allowing for his prosecution for war crimes. See Prosecutor v. Jankovic, Case No. IT-96-23/2-PT, Decision on Referral of Case (July 22, 2005). The Bosnian code also codified crimes against humanity and the doctrine of superior responsibility. Id. at paras. 28-30. The Bench ruled that referral was appropriate and that it was for the domestic courts to decide which penal code was applicable. Id. at para. 41. The final sentence was the longest awarded by the special War Crimes Chamber to date.
These cases reveal that while many states are codifying international crimes in connection with their ratification of the ICC Statute and their Chapter VII obligations to cooperate with the two ad hoc Tribunals, there are still a number of bugs to be worked out before we have a seamless regime of jurisdictional competency.

For human rights doctoral students

Summer saw the launch of another new blog, PhD studies in human rights, now the latest addition to our list of "connections." It's run by our colleague, William A. Schabas, Director of the Irish Centre for Human Rights and Professor of Human Rights Law at the National University Ireland, Galway, now visiting at Cardozo Law School. Provided are head's ups on recent developments of note in the human rights world. Recent posts've covered a range of human rights matters, from commentary on Bosnia v. Serbia, the February 2007 decision of the International Court of Justice (see IntLawGrrls' takes here, here, and here), to an amicus brief from Dick Marty (strike 3 in the above blograting) to the U.S. Supreme Court, to Bill's recent human-rights-lecturing gig at the Venice Film Festival. (Jealous? You bet.)

Heartfelt welcome.

On August 2, ...

...2001, the International Criminal Tribunal for the former Yugoslavia sentenced Gen. Radislav Krstić to 46 years in prison for genocide in Srebrenica, Bosnia. The judgment by Trial Chamber I, comprising Presiding Judge Almiro Rodrigues and Judges Fouad Riad and Patricia Wald (right), was affirmed on appeal, though his sentence was reduced by 11 years.
...1955, U.S. Rep. Nancy Boyda (D-Kan.) was born in St. Louis, Missouri.

Not Our Sisters

Our colleague Lakshmi Bai [IntLawGrrl Jaya Ramji-Nogales] recently blogged on the long-awaited establishment of the Extraordinary Chambers in the Courts of Cambodia (ECCC). Reflecting Cambodia’s colonial past, the ECCC is the first hybrid criminal tribunal to adopt the French civil law model of prosecution. Accordingly, the prosecutors are responsible for compiling dossiers on individuals worthy of prosecution. These are then examined by investigating judges, who call witnesses, assess credibility, and review documents. The investigating judges then make recommendations about who should be indicted and for what crimes. In the hybridity of the ECCC, international and Khmer professionals share each key post.
The ECCC co-prosecutors recently submitted dossiers for five individuals to the court’s co-investigating judges, who will decide whom to indict. Although this list is supposed to be confidential, one of the five names is reputed to be that of Ieng (Khieu) Thirith (above), the wife of Ieng Sary—Brother Number 3 (after Pol Pot and Noun Chea). The Cambodian press has speculated that the other proposed indictees are Ieng Sary himself, the former Foreign Minister; Nuon Chea, Pol Pot’s deputy; and Khieu Samphan, former Chief of State. Kang Kech Eav (“Duch”), head of the infamous Tuol Sleng prison (a.k.a. S-21) in Phnom Penh, has already been indicted for crimes against humanity.
Thirith was educated at the Sorbonne and became the first Khmer to graduate with a degree in English literature (she majored in Shakespeare Studies). Upon returning to Phnom Penh, she established an English-language school and taught at a government lycée. Her sister, Khieu Ponnary, was Pol Pot’s first wife. Once the Khmer Rouge took power in April 1975, she was appointed Minister of Social Affairs & Education, in charge of culture and social welfare. She was also jointly responsible for Foreign Affairs with her husband, Ieng Sary, who was appointed Foreign Minister. If indicted, Thirith would be—by my count—the third woman to be prosecuted for international crimes before a modern international tribunal. Her predecessors are Biljana Plavšić and Pauline Nyiramasuhuko.
Plavšić (right) was a fulltime academic at the University of Sarajevo until 1990, when she became active in politics by joining the Serbian Democratic Party. She was later elected as a Serbian Representative to the Presidency of the Socialist Republic of Bosnia and Herzegovina and as a member of the Presidencies of Republika Srpska, the self-proclaimed Serbian enclave within Bosnia-Herzegovina. She was reputedly a close associate of Radovan Karadžić and Momcilo Krajisnik. The International Criminal Tribunal for the former Yugoslavia (ICTY) indicted her for genocide, complicity in genocide, and the crimes against humanity of persecution, extermination, killing, deportation, and inhumane acts for her role in planning, instigating, ordering, and aiding and abetting, and jointly executing the ethnic cleansing of the Bosnian Muslim, Bosnian Croat and other non-Serb populations of 37 municipalities in Bosnia-Herzegovina. Plavšić surrendered voluntarily to the ICTY in January 2001 and pled not guilty. Almost a year later, she pled guilty to Count 3 of the indictment—persecution. Pursuant to the plea agreement, the Prosecution dismissed the remaining counts of the Indictment. The ICTY sentenced her to 11 years’ imprisonment, which she is serving in a women’s prison in Sweden. The Swedish government recently rejected her appeal for pardon, which was based on her advanced age (she is in her late 70s) and ailing health.
Nyiramasuhuko (left), a lawyer by training, was Minister for the Family and for the Advancement of Woman during the genocide in Rwanda and a leader in the Hutu-dominated National Republican Movement for Democracy (MRND) party. The International Criminal Tribunal for Rwanda (ICTR) indicted her for her participation in organizing massacres of Tutsis during the genocide. In particular, she is accused of drawing up lists of individuals to be eliminated and incited others to exterminate Tutsis. She was also named as the minister responsible for “pacification” for the Butare prefecture. There, she allegedly tricked Tutsis into coming to a Red Cross camp set up in the local stadium, where Interahamwe ambushed the refugees. She also allegedly ordered the rape and murder of 70 Tutsi women and girls who had been abducted by Interahamwe. Once the Tutsi-led Rwandan Patriotic Front advanced into Kigali, she hid in a refugee camp and then made her way to Kenya, where she was arrested after being in hiding for three years. The ICTR indicted her for conspiracy to commit genocide, genocide, public and direct incitement to commit genocide, and various crimes against humanity, including rape. She is the first woman to be indicted for rape under international law. Her trial continues.
If Thirith joins this august group, she has a lot to answer for. The Khmer Rouge destroyed many of the country’s religious monuments and educational institutions in an effort to create a radically egalitarian and agrarian state. Individuals who were not assassinated or worked to death died by the thousands of starvation, malnutrition, and disease. For now, Thirith reportedly resides in the couple’s home in Pailin, near the Thai border. The couple also has a lovely villa in downtown Phnom Penh, in the neighborhood of the Documentation Center of Cambodia, which has spent over a decade documenting the crimes of the Khmer Rouge.