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.

Khadr to settle?

Emanating from Guantánamo yesterday:
News stories reporting rumors that the military commissions case of United States of America v. Omar Ahmed Khadr is about to end with a plea bargain.
If not, trial is set to begin later this morning in a GTMO courtroom.
Confirming rumors reported by the Los Angeles Times' Carol J. Williams on Saturday, Reuters' Jane Sutton speculated on a reputed agreement by which Khadr, now 24 (above right), would serve "one more year at Guantanamo, followed by seven years in his native Canada." (image credit) Sutton added that Secretary of State Hillary Clinton had talked Sunday with her counterpart in Canada, which would have to approve any such deal.
Later on Sunday, Michelle Shepard of the Toronto Star, author of a book on the case, acknowledged such speculation, but stressed the statement by "Khadr’s Canadian lawyer Dennis Edney" that "there was no deal, 'as of this moment.'" Shepard thus continued with a preview of the trial, should it occur.
The Miami Herald's Carol Rosenberg, meanwhile, led with concern that any Khadr deal might remain secret (as has that of another detainee). Such secrecy would challenge "[t]he Obama administration's quest to show that military commissions can be as transparent and fair as other U.S. courts," Rosenberg reported.
(Indeed, as posted in the update above, this morning Khadr did plead. The agreement was not released, but is believed to provide for the sentence described in this post.)
As blogreaders well know from our prior posts, Khadr was 15 (above, middle) when seized by U.S. military personnel during a firefight in Afghanistan. He has spent 1/3 of his life in American custody. As detailed in his Department of Defense case file, Khadr now faces trial on charges of, inter alia, throwing a grenade that killed a member of the U.S. special forces during the firefight.
At the preliminary hearing that I attended in December 2008, defense lawyers indicated that proof of the charges at trial may prove difficult. From the beginning, however, proceedings have focused on 2 other aspects of the case:
► 1st, what Khadr suffered, including treatment as a "human mop."
► 2d, that if the acts alleged in fact occurred, Khadr was a child soldier. That fact alone ought to preclude prosecution and punishment, many have argued -- among them our colleague David M. Crane, former Chief Prosecutor for the Special Court for Sierra Leone.
The plea agreement bruited in yesterday's media would seem to take neither aspect into account.
Assuming speculation is correct, Khadr would not see release until after having served 16 years in custody -- a sentence scarcely seeming to incorporate much mitigation on account of detention conditions or any other reason.
The reputed deal departs markedly from international law with regard to child soldiers.
Consider the 2000 Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict. In Article 6(3) states parties agree to

take all feasible measures to ensure that persons within their jurisdiction recruited or used in hostilities contrary to the present Protocol are demobilized or otherwise released from service. States Parties shall, when necessary, accord to such persons all appropriate assistance for their physical and psychological recovery and their social reintegration.

Article 7(1) continues in like vein:

States Parties shall cooperate in the implementation of the present Protocol, including in the prevention of any activity contrary thereto and in the rehabilitation and social reintegration of persons who are victims of acts contrary thereto, including through technical cooperation and financial assistance. Such assistance and cooperation will be undertaken in consultation with the States Parties concerned and the relevant international organizations.

The treaty's view that the children are "victims" and deserving of "rehabilitation and social reintegration," as well as "physical and psychological recovery," is obviously at odds with a prosecution and punishment strategy with regard to these same children.
It is at odds, then, with the reported disposition of Khadr.
Canada became a full state party to the protocol in July 2000; the United States, in December 2002. The countries' statements at ratification said nothing to undercut the force of the articles quoted -- which, as indicated in this report of the International Committee of the Red Cross, jibe with other treaties.
Wonder whether either state will address this discrepancy.

The 3d IHL Dialogs

As readers will recall from this post, IntLawGrrls and the American Society of International Law were among the proud cosponsors of the Third Annual International Humanitarian Law Dialogs (above), held last week in Chautauqua, New York.

The IHL Dialogs provide the opportunity for international criminal prosecutors –- from as long ago as Nuremberg through the (all too many) present-day criminal tribunals –- to exchange ideas privately, to meet with other international humanitarian law scholars and practitioners, to recharge their batteries, and to share programs with the public. It is a small public, as the 135-year-old Chautauqua Institution, a lovely upstate community beside the lake of the same name, generously opens its doors to us sat the end of its nine-week season of lectures, concerts, classes, and recreation programs.
This year the theme was “Honoring Women in International Criminal Law: From Nuremberg to the ICC.” It is no exaggeration that this theme arose with IntLawGrrls founder Diane Marie Amann, who (diplomatically) blogged in 2007 about the absence of women prosecutors at the First International Humanitarian Law Dialogs. David Crane, the main force behind the Dialogs and the first prosecutor at the Special Court for Sierra Leone, replied at once with a comment. The choice of this year's theme indicates that he heard Diane loud and clear.

The Dialogs were preceded by a reception at the Robert H. Jackson Center in nearby Jamestown. Gracing this reception was onetime Nuremberg Prosecutor H.W. William Caming (above right, talking with me), who had not attended the first two Dialogs. He honored his fellow former Nuremberg prosecutor, Henry T. King Jr., who had spoken so movingly last year and passed away at age 89 this spring.
We IntLawGrrls – and our friends – were well represented:

► Diane gave a keynote lecture that arose out of her “Women at Nuremberg” blog series (below). She illustrated her talk with fascinating photographs, found painstakingly in archives, as well as personal history about the women, found even more painstakingly. (Be sure to read the text, in the Proceedings to be published by ASIL.)

► Professor Leila Nadya Sadat of Washington University School of Law chaired a panel of current prosecutors, ICC Deputy Prosecutor Fatou Bensouda, ICTY Deputy Prosecutor Norman Farrell, SCSL Deputy Prosecutor Joseph Kamara, and ICTR prosecutor Alphonse Van.

► As depicted below, IntLawGrrl Kelly Askin of the Open Society Justice Initiative chaired a panel composed of current and former women prosecutors; from right to left, Renifa Madenga of the International Criminal Tribunal for Rwanda, Christine H. Chung of the International Criminal Court, and Lesley Taylor of the Special Court for Sierra Leone.

► ASIL Executive Director Betsy Andersen gave a eulogy for Alison Des Forges, the Human Rights Watch researcher, and closed the Dialogs by reading aloud the prosecutors' Third Chautauqua Declaration of the prosecutors, reprinted below.

► Yours truly introduced the keynote dinner speaker, Patricia M. Wald, former ICTY Judge and Chief Judge of the District of Columbia Circuit (among many other things), who spoke about what women victims need and expect from the international criminal tribunals.

►Former ICC prosecutor Chung, in addition to serving on the panel described above, introduced one keynote luncheon speaker, Siri Frignard, a current Norwegian international criminal prosecutor and a former East Timor prosecutor.

► Other keynoters were Minnesota State Judge Marilyn J. Kaman, who served as an international judge for the U.N. Mission in Kosovo; John Q. Barrett, who spoke about Katherine B. Fite, the (perhaps) leading woman lawyer at Nuremberg; and Eli Rosenbaum of the Justice Department’s Office of Special Investigations.

The panels and talks went hand-in-hand with opportunities for the prosecutors, IntLawGrrls, ASIL membersm and others to chat over a meal, on a walk, or while rocking on the front porch of the century-old Athaeneum Hotel.
As a sponsor, IntLawGrrls thanks all the other sponsors and organizers, especially Professor Crane, the Syracuse University College of Law, and Impunity Watch; Greg Peterson, Chair of the Jackson Center, and his family; Adam Bratton, Executive Director of the Jackson Center; Carol Drake, who makes everything run at the Jackson Center; Professor Sadat and Washington University's Whitney R. Harris World Law Institute; and Professor Michael Scharf and Case Western's Frederick K. Cox International Law Center, and organizer of the glorious post-conference cruise on Lake Chautauqua.

Sierre Leone Prosecutor on the ICC's Darfur Indictment

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

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

You can read the whole editorial here.

Go On! International prosecutors' chautauqua

(Go On! is an occasional item on symposia of interest.) The meaty topic to be addressed at an August 29 discussion at New York's Chatauqua Institution is "The Laws of War: Past, Present, and Future". Featured is a stellar panel of men who've served as prosecutors in international criminal tribunals; in order of tribunal seniority, they are:
►International Military Tribunal at Nuremberg: Whitney Harris, Henry King
►International Criminal Tribunal for the former Yugoslavia: David Tolbert
►International Criminal Tribunal for Rwanda: Hassan Jallow
►International Criminal Court: Luis Moreno-Ocampo
►Special Court for Sierra Leone: David M. Crane, Desmond DeSilva, Stephen Rapp
►Extraordinary Chambers in the Courts of Cambodia: Robert Petit
Moderating the event, whose cosponsors include the American Society of International Law, will be a number of international criminal law experts. Among them is our colleague Leila Nadya Sadat. She's the only woman on the program, though women've worked on the prosecution in all these jurisdictions. One is Cecilia Goetz (above), among a number of women prosecutors at Nuremberg. Learning more about them is, thanks to our own Beatrice, an ongoing IntLawGrrls quest. (More on Goetz' colleagues -- IntLawGrrls Women at Nuremberg series --begins tomorrow.)
Understood that U.N. High Commissioner for Human Rights Louise Arbour, once Chief Prosecutor at the ad hoc tribunals, and her successor, Carla del Ponte, might be tad busy these days. But perhaps future sessions -- with luck, this "International Humanitarian Law Dialog" will become an annual event -- will feature them or others who might add insights to what promises to be a powerful dialogue.