Post-Conflict Justice Survey Invitation

If you are now working or have ever worked in the field of post-conflict justice, you are invited to take part in a survey about your work experiences. You can take the survey in English here or in French here. Those who have worked on accountability (trials, international/hybrid criminal tribunals, truth and reconciliation commissions, and so on) and those who have worked on post-conflict rule of law are all welcome to participate.The survey should take only about 15 minutes to complete, it is anonymous, and participants are eligible to win a $100 amazon.com gift card. (We've given some away already!) More details are discussed in my earlier post about this study.

To those of you who have already completed the survey, thank you! If you haven't taken it yet, please take a few minutes to fill it out and help us understand this growing area of international law. And of course, you are also welcome to forward this invitation to your post-conflict justice colleagues and friends.

This survey is part of a research study that I am conducting. If you would like any additional information, you can contact me directly at ebaylis@pitt.edu.

Post-Conflict Justice Survey & Interviews

Have you worked in the field of post-conflict justice?
Would you like the chance to share the story of your experiences?
If you have ever worked on issues relating to post-conflict rule of law or accountability for atrocities, you are invited to participate in a survey about your work experience. You can take the survey on-line in English here. Or if you would prefer to take the survey in French, click here.
The survey, which is being conducted by yours truly, Professor Elena Baylis at the University of Pittsburgh Law School, should take only about 10-15 minutes to complete.
As thanks for participating in the survey, you will be eligible to win a $100 Amazon.com gift card. One of every 25 people participating in the survey will win. At the end of the survey, you will see a report summarizing the survey responses so far and indicating how your responses compare to those of other survey-takers. You will also be given the chance to request a copy of the final report of this research study.
We would also welcome the opportunity to talk to you about your post-conflict justice work. You will have the chance to volunteer for an interview at the end of the survey. Interviews will be brief (no more than 30 minutes) and can be conducted in person or over the phone.
The purpose of this research study is to learn about the work and career choices of people working on post-conflict justice issues and to examine what effect those choices are having on the development of the field of post-conflict justice. This is the first study to focus on the role of the people involved in post-conflict justice, rather than primarily on its processes or institutions. By participating, you will help us better understand this emerging area of the law -- and have the chance to tell your story as well.
The survey is anonymous, and interviews can also be conducted anonymously if you wish. All individual responses are confidential and will be kept secure. The data from the survey will be reported only in the aggregate. There are no foreseeable risks to you from participating in this research study, and the only benefit offered is the chance at winning a gift card. Your participation is voluntary and you may withdraw from the study at any time.
If you have any questions about this study, or if you wish to volunteer for an interview or request a copy of the final report without taking the survey, you may contact me directly at ebaylis@pitt.edu.

Outsourcing Investigations: The ICC and Intermediaries

The International Criminal Court’s first trial is once again on the verge of coming to an abrupt end before the completion of the proceedings. The defendant, Thomas Lubanga has again been ordered released, and the Office of the Prosecutor (“OTP”) is again appealing that order. (Prior IntLawGrrls posts) It’s déjà vu all over again – and why? For the second time, because of the controversial role of intermediaries in building the prosecution’s case.
What’s all the hubbub about? IntLawGrrl guest/alumna Yvonne McDermott's earlier post provides the details, but the big picture is this: the OTP has been using third parties to assist it in conducting its investigation of the situation in the Democratic Republic of Congo (“DRC”). These third party intermediaries include organizations like MONUC (the UN Mission in Congo) (emblem below left) that have long been involved in investigating the atrocities that have occurred in the conflict there. In June 2009, the OTP was unable to disclose evidence as ordered by the court because of confidentiality agreements with the third parties who provided the evidence; now, the OTP has not identified an intermediary whom witnesses have claimed encouraged them to provide false testimony.
In my recent article, Outsourcing Investigations, I assessed the benefits and risks that come with using third parties as intermediaries in an international criminal investigation.
On the one hand, it makes enormous sense for the OTP to make use of the contacts that MONUC and other IGOs and NGOs already have with victims and witnesses in the DRC and to take account of the evidence they have already uncovered. These organizations know the country, the situation and the involved parties very well. They have already carried out their own investigations and produced their own reports on the war crimes and crimes against humanity that the OTP began investigating far more recently. The OTP is also no competition for MONUC in the size and scope of its investigations, particularly since it has adopted a targeted and sequenced investigations policy that deliberately limits its investigations’ aims and resources. Due to all of these factors, the OTP has relied on the work done by third party intermediaries at a minimum as the basis for selecting the incidents on which it has focused, making initial contact with the witnesses the third parties have already interviewed, and obtaining and reviewing any evidence they have already secured.
But this reliance creates problems: problems with reliability, credibility, equality of arms, the right of the defense to confront witnesses, and confidentiality. The Lubanga case has demonstrated that these problems are very real. And the Lubanga case is not a one-off: similar questions have emerged in at least one other DRC case. Unless the OTP radically changes its investigations strategy and the amount of resources it puts into its investigations, it will continue to need intermediaries. But unless the OTP changes its approach to using intermediaries, the problems that have arisen in the Lubanga case are not going to disappear on their own.
Accordingly, the OTP needs to develop a more effective set of policies and practices for dealing with intermediaries. At a minimum, it needs to reach agreements with intermediaries in advance that will permit the disclosure of evidence and of sources of evidence that is necessary for the defendant to have a fair trial. In Outsourcing Investigations, I suggest two approaches that could help the OTP maximize the benefits and minimize the risks of using intermediaries:
► (1) The OTP could draw experts into its investigations from the UN mission and other IGOs and NGOs operating in the area and/or
► (2) The OTP could develop a detailed set of guidelines for intermediaries to follow in carrying out their investigations.
By taking either or both of these steps, the OTP could maintain some control over the methods of the investigation and thereby maximize the reliability of the evidence it obtains as well as the transparency of its provenance.

Women @ ASILquater

As we have each year since our founding (here, here, and here), IntLawGrrls is proud today to highlight women who will speak March 24-27 at the forthcoming annual meeting of the American Society of International Law.
This 104th gathering of the Society, entitled International Law in a Time of Change, kicks off with the Grotius Lecture by Antony Anghie at 4:30 p.m. on March 24, features a keynote address by State Department Legal Adviser Harold Hongju Koh at 5 p.m. March 25, the Manley O. Hudson Medal Lecture by Edith Brown Weiss (right)at 4:15 p.m. March 26, a keynote by Canada's Chief Justice, Beverley McLachlin (below left), at 5:30 March 26, and runs through March 27. All events will take place at the Ritz Carlton Hotel, 1150 22d Street, N.W., Washington, D.C. (Details and registration here.)

Delighted to see from the program that, once again, there's much diversity in topics and presenters. Virtually all panels again have at least 1 woman participating, and that many have more (those few that do not include women do not, alas, receive mention in this list). Kudos to the Program Committee Co-Chairs, IntLawGrrls' own Hari M. Osofsky and our colleagues K. Russell LaMotte and Allen S. Weiner! Particularly proud that so many persons featured are IntLawGrrls or IntLawGrrls guest alumnae -- not only Planning Committee members Rebecca Bratspies, Chimène Keitner, Hope Lewis, and Beth Van Schaack, but also, of course, Lucy Reed (right), who will conclude her 2-year tenure as ASIL President at the meeting, to be succeeded by our colleague David D. Caron.
Without further ado, here's this year's honor roll:

Thursday, March 25, 9-10:30 a.m.
► "Empirical Approaches to International Law": Elizabeth Andersen (ASIL Executive Director), IntLawGrrl Elena Baylis (Pittsburgh), Susan Franck (Washington & Lee), Janet Levit (Tulsa), and panelists; Tonya Putnam (Columbia), moderator.
►"New Thinking on Social and Economic Rights: Honoring Virginia Leary," an IntLawGrrls foremother: IntLawGrrl guest/alumna Gay McDougall (United Nations) (below, far right), Mona Rishmawi (United Nations), and Alicia Ely Yamin (Harvard), panelists; IntLawGrrl guest/alumna Barbara Stark (Hofstra), moderator.
►"International Human Rights Law, Foreign Sovereign Immunity, and National Courts": Rosanne van Alebeek (Amsterdam), Sarah H. Cleveland (Counselor to State Department) (near right), panelists.
►"Getting to Closure: Winding Up the International and Hybrid Criminal Tribunals": Tracey Gurd (Open Society Justice Initiative) and Anne Joyce (State Department), panelists; IntLawGrrl guest/alumna Valerie Oosterveld (Western Ontario), moderator.
►"Risk, Science and Law in the WTO": Tracey Epps (New Zealand Ministry of Foreign Affairs & Trade), panelist.
►"New Voices I": Dionysia Avgerinopoulou (Columbia), IntLawGrrl guest/alumna Máiréad Enright (Cork), and Alexandra R. Harrington (McGill), panelists; Edith Brown Weiss (Georgetown), moderator.

Thursday, March 25, 10:45 a.m.-12:15 p.m.
►"Providing Global Public Goods Under International Law": Anne van Aaken (St. Gallen, Max Planck Institute), Victoria Henson-Apollonio (Consultative Group on International Agricultural Research), Inge Kaul (United Nations), and Sabrina Safrin (Rutgers-Newark), panelists; IntLawGrrl Rebecca Bratspies (CUNY), moderator.
►"Extraterritoriality: Bagram and Beyond": Sabine Nölke (Canadian Department of Foreign Affairs), panelist; IntLawGrrl guest/alumna Chimène Keitner (California-Hastings), moderator.
►"Hot Topics in GATS and Human Rights": Jane Kelsey (Auckland) and Marion Panizzon (World Trade Institute), panelists.
►"Teaching International Law: Lessons from Clinical Education": Lusine Hovhannisian (Public Interest Law Initiative) and Deena Hurwitz (Virginia), panelists.

Thursday, March 25, 12:30-2:30 p.m.
► Women in International Law Interest Group Luncheon: Dinah Shelton (George Washington; Inter-American Commission on Human Rights) (left), speaker.

Thursday, March 25, 1-2:30 p.m.
► "Afghanistan, Pakistan and the Modern Challenges to Use of Force Law": Elizabeth Rindskopf Parker (Pacific McGeorge) and Hina Shamsi (NYU), panelists; IntLawGrrl guest/alumna Mary Ellen O'Connell (Notre Dame), moderator.
► "Evolving Intersections Between Treaty Law and Domestic Law": IntLawGrrl Johanna E. Bond (Washington & Lee) and Mallory Stewart (State Department), panelists.

Friday, March 26, 9-10:30 a.m.
► "International Environmental Justice: Possibilities, Limits and Tensions": Deepa Badrinarayana (Chapman) and Jennifer M. Green (Minnesota), panelists.
► "Corruption and Human Rights": Leslye Obiora (Arizona), panelist.
► "International Law 2.0": Beth Simone Noveck (Office of Science and Technology) and Renee C. Redman (Iran Human Rights Documentation Center), panelists; IntLawGrrl guest/alumna Molly Beutz Land (New York), moderator.
► "New Voices II": Neha Jain (Max Planck Institute for Foreign and International Criminal Law), Kimberley N. Trapp (Cambridge), and IntLawGrrl guest/alumna Julie Veroff (Oxford), panelists.

Friday, March 26, 10:45 a.m.-12:15 p.m.
► "Non-State Actors and the Emerging Climate Change Law Regime:" Elizabeth Burleson (South Dakota) and IntLawGrrl Naomi Roht-Arriaza (California-Hastings), panelists; Jaye Dana Ellis (McGill), moderator.
► "Updating the Restatement": Oona Hathaway (Yale) and 9th Circuit Judge Margaret McKeown (left), panelists.
► "Same or Different? Fighting Terrorists in the Bush and Obama Administrations": IntLawGrrl Diane Marie Amann (California-Davis) and Susan Baker Manning (Bingham McCutchen), panelists.

► "The Rising Use of International Law by African Judiciaries": Erika George (Utah), panelist; Angela M. Banks (William & Mary), moderator.
► "Preventing the Next Financial Crisis: Coordination and Competition in Global Finance": Barbara C. Matthews (BCM International Regulatory Analytics), panelist.

Friday, March 26, 12:45-2:15 p.m.
► "Reform and Restructuring at International Financial Institutions": Anne-Marie Leroy (General Counsel, World Bank), panelist.
► "Theoretical Insights at the Margins of International Law: CLS Meets TWAIL": Celina Romany (Puerto Rico Bar Association), panelist; Jeanne M. Woods (Loyola-New Orleans), moderator.
► "Family, Sex, and Reproduction: Emerging Issues in International Law": Joanna N. Erdman (Toronto), Katherine Franke (Columbia), Laura Katzive (Wellspring Advisors), and Kathleen Lahey (Queen's-Ontario); Nancy Northup (Center for Reproductive Rights), moderator.
► "War and Law in Cyberspace": Eliana Davidson (Defense Department) and Robin Geiss (International Committee of the Red Cross), panelists.
► "Implications of the Global Financial Crisis on International Trade and Investment Regimes": Elizabeth Trujillo (Suffolk), panelist.

Friday, March 26, 2:30-4 p.m.
► "Bottom-Up Strategies for Survival and Resistance: Examples from Latin America and Elsewhere": Chantal Thomas (Cornell), panelist; Berta Esperanza Hernández-Truyol (Florida), moderator.
► "Transnational Legal Dialogue, a Human Rights-Based Hierarchy, and the Creation of Norms": Jutta Brunnée (Toronto), IntLawGrrl guest/alumna Patricia M. Wald (former Judge, International Criminal Tribunal for the former Yugoslavia) (right, and Melissa A. Waters (Washington University), panelists; Erika de Wet (Amsterdam and Pretoria), moderator.

► "Remembering Tom Franck: What He Taught Us about the Recourse to Force": Rosalyn Higgins (former President, International Court of Justice) (far left), moderator.

► "ICSID in the Twenty-First Century: An Interview with Meg Kinnear" (Secretary-General, World Bank's International Centre for Settlement of Investment Disputes) (near left).

Friday, March 26, 4:15-5:15 p.m.

► "Hudson Medal Lecture": Medal Winner Edith Brown Weiss (Georgetown).

Friday, March 26, 5:30-6:30 p.m.

► ""Keynote": Chief Justice Beverley McLachlin, Supreme Court of Canada

Saturday, March 27, 9-10:30 a.m.

► "The Road Forward from Copenhagen: Climate Change Policy in the 21st Century": Ann Petsonk (Environmental Defense Fund), panelist.

► "The ICC Review Conference and Changing U.S. Policy Towards the Court": Olivia Swaak-Goldman (International Criminal Court), panelist; Leila Nadya Sadat (Washington University), moderator.

► "China and East Asia on the World Stage": Deborah Brautigam (American) and Saadia Pekkanen (University of Washington), panelists; Julia Ya Qin (Wayne State), moderator.

Saturday, March 27, 10:45 a.m.-12:15 p.m.

► "Advancing Women's Rights Internationally": Cathy Albisa (National Economic and Social Rights Initiative), Fionnuala D. Ní Aoláin (Minnesota) and Rebecca Cook (Toronto),panelists; Kamari Maxine Clarke (Yale), moderator.

► "Treaty Bodies and Beyond: The Practice and Process of Translating International Norms into Domestic Law": Susan Deller Ross (Georgetown) and Ruth Wedgwood (John Hopkins; Human Rights Council) (right), panelists; Celia Goldman, moderator.

Gitmo 'Grrls

(One in a series on Experts at Law)

As mentioned in our recent Read On! Review, a recurrent theme in IntLawGrrl Kristine A. Huskey's new book is, to quote her,

the fact that women are woefully scarce in national security law, my chosen field. I do not mean to convey that I am the only woman in this field, as there are many women writing, speaking about, and practicing nationalsecurity legal issues, specifically relating to Guantánamo ...

She continued:

[E]very one of these women will tell you that they, too, are often the only female speaker on these issues in a conference room or on a panel filled with men. The world can stand to have more women in fields that are traditionally filled by men.

(pp. iv-v) Kristine then proceeded "to name a few" of the Gitmo 'Grrls who jumped to mind. Her list is reproduced here, along with links to these women and some of their works:

► IntLawGrrl Beth Van Schaack, Santa Clara Law. Her IntLawGrrls posts are here; list of other publications is here.

► IntLawGrrl yours truly (thanks, Kristine!), University of California, Davis. My IntLawGrrls posts are here; list of other publications is here.

► Leila Nadya Sadat, Washington University. IntLawGrrls posts about her are here; publications list is here.

► Gitanjali S. Gutierrez, Center for Constitutional Rights, attorney for detainees. IntLawGrrls posts about her are here; her op-ed is here.

► Agnieszka M. Fryszman, partner at Cohen Milstein, attorney for detainees.

► Beth Gilson, attorney for detainees.

► H. Candace Gorman, attorney for detainees, whom the Chicago Tribune recently profiled. She runs 2 Gitmo blogs, here and here.

► Sylvia Royce, attorney for detainees.

► Sarah Havens, Allen & Avery, attorney for detainees.

► Becky Dick, attorney for detainees.

► Hina Shamsi, staff attorney at the National Security Project of the American Civil Liberties Union. Her ACLU blog posts are here.

► Maria LaHood, Center for Constitutional Rights.

► Opinio Juris' Deborah Pearlstein, Princeton University. IntLawGrrls posts about her are here; her OJ posts are here; her publications list is here.

► Karen J. Greenberg, New York University. IntLawGrrls posts about are her here; some publications are listed here; her newest Gitmo book is here.

► Suzanne Spaulding, Bingham Consulting Group and former Executive Director of the National Commission on Terrorism, among many other natsec posts. An op-ed by her is here.

► Kate Martin, Center for National Security Studies. Some of her publications are here.

► Sahar Aziz, formerly an associate at Cohen Milstein, now Senior Policy Advisor at Office for Civil Rights, U.S. Department of Homeland Security.

► Barbara Olshansky, attorney for detainees. Her books are here.

► Jennifer Daskal, formerly senior counterterrorism counsel at Human Rights Watch, now a Department of Justice attorney.

Recognition is due to many other women as well, of course. (Readers' nominations welcome!)

There are, for example, all the IntLawGrrls and guests/alumnae who have contributed posts in IntLawGrrls' "Guantánamo" series. In addition to Beth, Kristine, and I, they are Elena Baylis, Ursula Bentele, Fiona de Londras, Monica Hakimi, Lynne Henderson, Elizabeth L. Hillman, Dawn Johnsen, Michelle Leighton, Pamela Merchant, Naomi Norberg, Hari M. Osofsky, Jaya Ramji-Nogales, and Lucy Reed. Not to mention guests/alumnae Mary L. Dudziak, editor of this book, and Mary Ellen O'Connell, interviewed here, both with respect to post-9/11 issues. Or my University of California colleague Laurel E. Fletcher, co-author of this book, an empirical study of the fate of ex-detainees.

And there are also the women who shared a Quonset-like tent with Jen Daskal and me during the December '08 week that, as posted earlier, I spent observing Gitmo military commissions on behalf of the National Institute of Military Justice. (A fuller account of my visit begins at page 9 of this report, which also includes dispatches from Executive Director Michelle Lindo McCluer and other NIMJ'ers) These tentmates were: Jill Heine, Amnesty International; Stacy Sullivan, Human Rights Watch; and Devon Chaffee, Human Rights First. And don't get me started on the many women journalists I met at Gitmo, or on the women JAG lawyers whom I watched provide excellent representation of various detainees as detailed defense counsel.

Bottom line -- memo to media reps, conference organizers, anthology editors, etc.:

There are many, many women now working in the field of national security. We've given you the list; it's your job to get in touch. As we posted when a similar issue arose years ago, the key is not only having women "in" the supposedly nontraditional fields of law. It's also having them recognized as being there.

Judge Sotomayor and International Law

For those interested in the views of Judge Sonia Sotomayor (right) on the place of international law in American courts, a few tidbits. (See also yesterday's IntLawGrrls post on her nomination.)
The New York Times has gathered some of Judge Sotomayor’s notable opinions for the U.S. Court of Appeals for the 2d Circuit and made them available online. Among those collected are two that address issues relating to international law; in each, she presents a crisp analysis of the relevant demands of international law and foreign relations:
► Her dissenting opinion in Croll v. Croll (2000), arguing for an interpretation of the Hague Convention on the Civil Aspects of International Child Abduction that accords with its object and purpose (the classic method of treaty interpretation in international law). Specifically, she takes the position that

[w]hile traditional American notions of custody rights are certainly relevant to our interpretation of the Convention, the construction of an international treaty requires that we look beyond parochial definitions to the broader meaning of the Convention, and assess the ‘ordinary meaning to be given to the terms of the treaty in their context and in light of [the Convention’s] object and purpose.’

(quoting the Vienna Convention on the Law of Treaties)
► Her dissent from the denial of rehearing en banc in Koehler v. Bank of Bermuda (2000), contending that the appellate panel should not have adopted an understanding of what it means to be a “citizen or subject of a foreign state” that would leave residents of Bermuda and other similarly situated territories of the United Kingdom effectively stateless and outside the alienage jurisdiction of the federal courts. She describes this conclusion as “flawed and internationally troublesome,” noting its deleterious effect on “our relations with foreign nations, and the access of foreign entities and individuals to our courts.”
Judge Sotomayor also wrote a brief foreword for The International Judge: An Introduction to the Men and Women Who Decide the World's Cases (2007), a book based on interviews with 32 judges on international tribunals. Here, she carefully elides the hot-button question of “the appropriate role that international and foreign law should play in American constitutional adjudication” for an alternative query:

how much we have to learn from international courts and from their male and female judges about the process of judging and the factors outside of the law that influence our decisions.

In considering this question, she draws parallels between the challenges faced by the international judges described in the book and those that she and her colleagues on the federal appellate bench must likewise address, noting particularly the difficult necessity of remaining impartial in “cases that touch our passions deeply.”
She also offers some insight into her view of the mechanism by which judges fulfill their role:

[A]ll courts… are in large part the product of their membership and their judges’ ability to think through and across their own intellectual and professional backgrounds, to reach some juncture of consensus and cooperation in which a common language is used to articulate the rules and norms that bind their communities.

Ensuring access to health care

Last week, I participated in a multi-disciplinary conference, "The Arts, Human Development and Human Rights" at the University of Pittsburgh. (Earlier post.) A week later, an intriguing fact about the Brazilian public health program in the Rio de Janeiro favelas (above) is still bouncing around my mind: the doctor working at each neighborhood clinic visits every single home in her assigned neighborhood. (photo credit)
In fact, she spends half of her work week visiting those homes in turn, one after another, until she has gone to every one – and then she starts over again with the first home.
As someone who has spent some time thinking about access to justice in poor and conflict-ridden settings, this approach to access to public health services caught my attention. It’s a very direct, very proactive approach, and an approach to resource allocation very different from the American strategy for medical care -- or for that matter, than any approach to access to justice that I'm aware of. (Indeed, in this period of détente, I should mention that the Brazilian Family Health Program was modeled on a Cuban initiative.)
These visits are, presumably, a low-cost endeavor in some respects. They rely on observation and conversation rather than expensive technology or tests. But they are high-cost in another way: they devote an enormous amount of time and energy to developing relationships with people who do not necessarily require immediate medical care. These relationships can then be put to many health-directed uses, as well as some broader purposes:
► They can be used to offer preventative health advice and information and to gather public health information.
► They can be used to facilitate and provide a health background for medical care when the need arises.
► And they contribute to other projects in the community – including the Communiarte arts project that was one focus of the conference.
Fundamentally, the Brazilian program places medical care in a relational context and collapses the problem of access into that context.

The arts, human development & human rights

What if participating in the arts can transform not just your sense of self-expression, but also your health and your involvement in your community? Is there potential for synergy between artistic exploration and better health and human rights?
A joint project between Pittsburgh's Andy Warhol Museum and the Museum of Contemporary Art in Niterói, Brazil, explored this question in one of the favela (shantytowns) outside of Rio de Janeiro. Jessica Gogan (left), Director of Special Projects, says:

'The concept of Communiarte is simple: Connect art, health and social justice, give it a supportive framework, and see what happens.'

What happened in this case was an explosion of art, and the documentation and mapping of life in the favela. For lawyers, this approach presents a striking alternative to our often litigation- and lobbying-focused strategy for human rights work.
I'll be learning more about this and, more immediately to hand, about the work of University of Pittsburgh law students in the Pittsburgh Street Law and Human Rights Education Project, in a conference entitled "The Arts, Human Development, and Human Rights," being held at the University of Pittsburgh over the next two days. The conference brings together folks from the Niterói and Pittsburgh projects with educators from the medical school, law school, anthropology department and elsewhere -- all looking to learn from the artists.

Bellwether Trials

Peter Spiro and I had the pleasure of hosting IntLawGrrl Elena Baylis (pictured below right) this week at Temple's International Law Colloquium. Elena presented her current work-in-progress, Bellwether Trials: From Mass Torts to Mass Atrocities, on which Peggy McGuinness (pictured below left) commented. Refreshingly short by design, the paper suggests a useful role for internationalized criminal courts from the perspective of one who shares my healthy skepticism of the ability of ad hoc, hybrid and permanent courts to positively impact post-conflict states.

Elena starts from the assumption that the goal of post-conflict justice should be to further the affected society's interests, which often point in directions different from internationalized criminal courts. She notes that the construction of a viable justice system is often a high priority for those who have suffered mass atrocities, and suggests that the most useful role for internationalized criminal courts may be to assist in this project. Many of these ideas are laid out in Elena's forthcoming publication, Reassessing the Role of International Criminal Law: Rebuilding National Courts Through Transnational Networks; the Bellwether Trials piece simply offers a practical role for internationalized criminal courts -- to hold bellwether trials that can assist national courts in trying perpetrators of mass atrocities. While she recognizes that there are due process concerns with this approach, Elena rightfully suggests that these problems exist currently, and her proposal puts us no worse off than where we are today.

Peggy and others suggested that we've already seen internationalized criminal courts play a bellwether role, in Nuremberg and the Eichmann trial. While that idea holds appeal, I remain uncertain about the role of courts in post-conflict justice in less legally oriented societies. Moreover, the discussion brought me back to the fundamental critique expressed so eloquently by Karl Jaspers, that "something other than law is at stake here, and to address it in legal terms is a mistake." Elena's point that these institutions are already here, for better or for worse, and we should make the best use of them we can, is a good one, but it may be that we should be pushing for more radical changes in post-conflict justice. In any case, her pieces provide an engaging and thoughtful guide through the field of post-conflict justice.

Deja Vu in the Congo

As 45,000 Congolese flee the internally displaced persons camp near Goma where they sought refuge, it's become clear that the festering wound of the Eastern Democratic Republic of Congo (DRC) has once again burst open. The political origins of the crisis are too complex to go into here (or, quite frankly, for yours truly to understand); suffice to say that the North and South Kivu provinces of the DRC have been the epicenter of massive refugee flows since 1994. Though I've never been, I have vivid pictures of the beauty of Lake Kivu and its surrounding region in my head, imprinted by my earliest asylum clients, who had fled the area after the violence resulting from the Rwandan genocide. After the Tutsi-led Rwandan Patriotic Front gained control of Rwanda, the Hutus fled into the Kivus, resulting in years of border skirmishes and at least two wars between the Hutus and Tutsis on either side of the border. MONUC, the UN Mission in the DRC, has been in place (under Chapter 7 of the UN Charter) for nearly ten years, since 1999. Today, 850 Indian soldiers from MONUC are the only military force in Goma, as the government soldiers have fled and the rebels have announced a unilateral cease fire before taking Goma so that civilians can flee. While the European Union "considers all options" and the UN sends in 80 more Guatemalan soldiers from its 17,000 strong MONUC forces, by all accounts chaos has broken out in Goma, and its population is forced to flee once more.

And so it's deja vu all over again; the bitter internecine tribal feuds, the hand-wringing and delays on the part of the international community, the neighboring countries all too eager to get involved in return for their share of mineral wealth, and the suffering of the residents of the region, particularly the women and girls, who have been sexually assaulted by all comers including UN troops. The crisis highlights the impotence of international law in controlling, accounting for, and preventing such atrocities; the law is simply overwhelmed by the short-term self-interest of all of the power players involved. (map credit)

How can we put an end to the vicious cycles of violence that have plagued the Eastern Congo for nearly fifteen years? Can we possibly put this Humpty back together again? In an ideal world, we would seek a solution both more local and more global than those we've seen thus far (posted about here and here and discussed in IntLawGrrl Elena Baylis' excellent article here); more local in that it would be rooted in relevant moral authority and speak to all sides in the conflict and more global in that it would recognize the culpability of all players -- including other nations -- in creating and perpetuating the violence in the Eastern Congo. But all the king's horses and all the king's men have a long way to go before we can even begin to think about post-conflict justice for Goma.

Socio-Legal Methods in International Law

Last week, I hosted a Workshop on Socio-Legal Methods in International Law at the University of Pittsburgh Law School. The workshop was intended as a sally into the ongoing debate about the use of empirical methods to assess international law, claiming a place for qualitative methods (interviews, surveys, participant observation, and the like) as empirical research and exploring the contribution of this sort of interdisciplinary work to our understanding of international law in practice.
Building from panels and roundtable discussions sponsored by the International Human Rights Collaborative Research Network at the last two Law and Society Association annual meetings, this workshop brought together legal scholars, legal anthropologists, and others to discuss the role of socio-legal research methodologies and theoretical frameworks in studying international law. Participants included Intlawgrrl Rebecca Bratspies, IntLawGrrls guest bloggers Jenia Turner and Peggy McGuinness (also a cofounder of Opinio Juris blog), and other intlaw and intlaw-studying colleagues. For a full list of the participants and other information about the workshop, see the workshop webpage.
As described by the workshop's theme statement:

... Amongst legal scholars who study international law, attention has recently turned to empirical studies that attempt to demonstrate the real word effects (or lack thereof) of international law. With this increase in empirical work legal scholars are debating the relative efficacy of various quantitative and qualitative methodologies in developing empirical descriptions of international law practice. At the same time, there has been an upsurge in the interest in international law, and particularly in international human rights, amongs legal anthropologists.
Against this backdrop, this workshop will explore the role of socio-legal methodologies in describing and defining the contours of international law. It brings together legal anthropologists, legal scholars, and others studying international law from various disciplinary perspectives to discuss their research international law and their use of various methodologies and theoretical frameworks. The participants include specialists in international human rights law, international criminal law, international environmental law, and other areas. The methodological questions to be addressed are cross-cutting, concerning the role of methodology in shaping our understanding of international law and the challenges international law creates for socio-legal methodologies.

STL H-R-D 2 C R2P

Gareth Evans (left) has published a must-read op-ed criticizing Russia's invocation of the concept of "responsibility to protect" -- infelicitously dubbed "R2P" -- as justification for warring against Georgia over South Ossetia and Abkhazia.
Evans, President of the Brussels-based International Crisis Group and former Foreign Minister of Australia, chaired the International Commission on Intervention and State Sovereignty that issued the report The Responsibility to Protect (2001). He writes:

For those of us who have worked long and hard to create a consensus that the world should never again turn its back on another Cambodia or Rwanda, this and every misapplication of R2P -- genuine or cynical -- is an occasion for alarm. We are conscious of the fragility of that consensus should the impression gain hold that R2P is just another excuse for the major powers to throw their weight around. It needs to be made clear beyond a doubt that whatever other explanation Russia had for its military action in Georgia, the R2P principle was not among the valid ones.

An accurate critique, well made.

But is it really any surprise that Russia would lay claim to "responsibility to protect"? Seems scarcely more surprising than the fact that Russia has -- as Mary Ellen O'Connell guest-noted last month -- equated its August embrace of breakaway independence in the Caucasus with the West's February embrace of breakaway independence in Kosovo. (IntLawGrrl Elena Baylis' February Kosovo posts are here and here.)

The aims behind the R2P movement are exemplary. Nonetheless, as I've written in this essay and in posts here and here, and as José Alvarez wrote here, skepticism's due any undue focus on rhetorical flourish over actual reform of existing mechanisms.

R2P, like any effort at collective avoidance of atrocity, must operate primarily within the collective security framework established in 1945; that is, within the Security Council (right). Article 27(3) of the U.N. Charter, of course, permits permanent-member Russia -- and permanent-members China, and France, and Britain, and the United States -- to sideline all collective bids to act against them or their ally/client states.

The core problem in the conflict in Georgia, then, is the veto power. Russia's dubious claim that it's shouldering a "responsibility to protect" is but a symptom.

Conflict in the Caucasus: Restoring Peace and Principle in that Region and the World

Watching for signs of war with Iran, many of us probably took our eyes off other hot spots where President George W. Bush’s imminent departure is a strategic consideration. In this guest post I turn attention to one such hot spot, the Caucasus.
Georgia’s Mikheil Saakashvili (left) launched his military action to regain control of South Ossetia, no doubt with the departure in mind and probably thinking America’s pro-war administration would back him — that President Bush would tamp down any Russian response while watching the Olympics together with Prime Minister Vladimir Putin (above right).
But Saakashvili’s action was unlawful and foolhardy. The world is rightly condemning the disproportionate Russian response. President Bush and both presidential candidates have done so. The McCain and Obama camps have both cited violations of international law — it must, however, be emphasized that among those violations is the Georgian raid.
Georgia’s claim to title of both South Ossetia and Abkhazia is good. Groups in both regions want independence from Georgia on the basis of human rights violations and historic grievances. Violence has erupted among ethnic groups in both places. In the early 1990s, Georgia agreed to the presence of “peacekeeping” troops to keep order. These have mostly been Russian soldiers supporting those who want independence. The agreements clearly do not strip Georgia of title. But they do mean that until they are terminated and foreign troops are given a chance to exit, Georgia has no right to use military force to expel them. These principles were restated most recently in Armed Activities on the Territory of Congo, a 2005 International Court of Justice judgment.
Given its right to be in South Ossetia, Russia also had the right to take defensive action against Georgia. That means, however, only action necessary and proportional to accomplish the purpose of defense (asI detailed here in 2002). Russian bombing beyond South Ossetia, striking civilians — even inadvertently — cannot be justified. (map credit) Israel was heavily criticized in 2006 in its war with Hezbollah in Lebanon for disproportionate force. Israel also had the right to take defensive action against Hezbollah rockets, but bombing far beyond the rocket positions in heavily populated civilian areas was condemned. Surely Russia joined in that condemnation?
Russia’s purpose in its excessive use of force may well be to create a situation where it can make excessive demands in peace negotiations. It may demand independence for Abkhazia and South Ossetia and that Saakashvili step down.
The right response to the Russians is to repeat back the arguments they have been making for years with respect to Kosovo — that territory does not change hands because of human rights violations against inhabitants. (IntLawGrrl Elena Baylis posted concerns here when Kosovo declared independence.) Territory should never change hands because of the unlawful use of force. International law mandates other means and mechanisms of protecting human rights. Indeed, the Russian use of such arguments now — so close to the European and American arguments for Kosovo — must be intentional. Europe and America are hardly in a position to renounce them now when it comes to Georgia.
But China can. It joined Russia in arguing that Kosovo’s independence violates international law. China should be encouraged to join the mediation of this conflict — thus supporting the international rule of law. It will be so much easier then for the next U.S. president to remind China of the international law with respect to human rights, the environment, trade, and peace. Much easier than it has been for President Bush.
Indeed, the time is right for a general renewal of commitment to peace and the international law that supports it in the face of yet another unlawful, foolhardy, and tragic conflict.

Guest blogger: Vivian Grosswald Curran

IntLawGrrls is delighted to welcome as a guest blogger comparative law expert Vivian Grosswald Curran (left), Professor of Law at the University of Pittsburgh School of Law in Pennsylvania, also the home institution of IntLawGrrl Elena Baylis. (photo by Linda Tashbrook)
Vivian's publications include 3 books, Learning French Through the Law (1996), Comparative Law: An Introduction (2002), and Core Questions of Comparative Law (2004, English translation of a work by German law professor Bernhard Grossfeld). The U.S. State Department appointed Vivian as the U.S. member of the Austrian General Settlement Fund Committee for Nazi-era property compensation; in recognition of her efforts last year H.E. Ewa Nowotny, Austria's Ambassador to the United States, presented Vivian with the Grand Decoration of Merit in Gold for Services Rendered to the Republic of Austria, one of the country's highest honors. Vivian, who earned her Ph.D. and J.D. from Columbia University, is a past Secretary of the American Society of Comparative Law and book review editor of the American Journal of Comparative Law, and is a member of the American Law Institute, the International Academy of Comparative Law, and Réseau ID, the Franco-American Network on the Internationalization of Law about which we've posted.
Vivian dedicates her guest post below -- a description of her latest scholarship -- to the late writer Nathalie Sarraute (right). (photo credit) Born Nathalie Ilyanova Tcherniak in 1900 in Russia and raised in France, she studied in France, Germany, and Great Britain. An ardent feminist, Sarraute is best known as a pioneer of the nouveau roman, or "new novel," form in French literature. She also was a lawyer, and was the 1st woman to be admitted to the Paris bar. Vivian writes of Sarraute, who joins other transnational foremothers at right, just below our "visiting from ..." map, "Among her many memorable sayings is one I think particularly useful for legal comparativists and internationalists":

C'est ce qui échappe aux mots que les mots doivent dire.

in English,

It is what escapes words that words must say.

Heartfelt welcome!

Banning headscarves, banning parties

So, headscarves are back in the courts in Europe, and it’s a bit more complicated this time. Turkey has for some time banned headscarves in universities, in pursuit of its constitutional mandate of secularism. The legislature recently passed a law rescinding the ban, and that law is being challenged before Turkey’s Constitutional Court as violating secularism. Fair enough. But here’s where it gets a bit tricky: The Constitutional Court just agreed to hear a case seeking to ban the governing party and 71 of its members from politics for five years because they are pursuing an anti-secularist agenda. The suit apparently cites the law rescinding the headscarf ban as exhibit A. Turkey’s governing party is the successor to an openly Islamic party previously banned by the Constitutional Court for this reason. It is also the party that won an unpredecented 47% of the vote in the last election.

The first suit sounds like fair play all around. The majority party passes a law changing a longstanding policy, it’s challenged in court as unconstitutional – this is the usual political-legal rough and tumble. The second suit seems rather more extreme. The European Court of Human Rights has apparently upheld Turkey’s banning of other parties in at least some instances, as “necessary in a democratic society.” I can imagine why this might be the finding for parties that are openly terrorist in their means, for example, or oppressive in their ends – judicial review of their individual policies in such instances would not necessarily serve to keep their actions within constitutional bounds. (Note that these are just examples -- I do not know what the justifications were for the prior bans.) But if a party is playing by the democratic rules – winning elections, passing legislation, letting constitutional claims be heard before the courts, and living with the results -- why should there be any need to act against that party directly, even if it were to put forward unconstitutional policies, and even if it were to do so consistently, as this suit claims? Shouldn’t lawsuits aimed at the policies, instead of the party, be a sufficient remedy for any unconstitutional laws it might pass?

'Grrls Day

Today in Japan it's Girls' Day. What to call this 3d day of the 3d month in cyberspace? 'Grrls Day, of course: it's the 1st anniversary of the birth of IntLawGrrls blog.
We've grown a lot this last year. We began as a handful of pseudonyms, of women posting in the name of transnational foremothers. Midway through the year we found our own voices. Posting now in our own names, we number 23 -- plus more than a half-dozen colleagues who've contributed as alumnae or guest bloggers.
Nor have we forgotten our transnational foremothers. Our newcomers continue to dedicate their work on the blog to women who've inspired them, and all of us continue to feed on that inspiration. To honor those women further, we introduce a new feature today: in our righthand column, just below our "visiting from..." map, you'll find a list of our foremothers, with links to all we've posted about them.
IntLawGrrls have grown other ways as well.
There's readership, of course. At last count we've been visited more than 35,000 times (close to 70,000 page views) by readers from all over the world. Many of you continue to visit regularly and to comment when the spirit moves. Our heartfelt thanks.
Several of us have grown more comfortable with saying more more often, with sharing our knowledge outside the confines of classroom or workplace. For some of us this has meant more frequent posting (more than 1,000 items this past year!); for others, cross-posting on sister blogs. Just yesterday, IntLawGrrl Marjorie Florestal published a revised version of her last post as a Sacramento Bee op-ed.
Perhaps best of all is how we've grown as a community committed to giving a pink glow to international law, policy, and practice. Attending, when possible, one another's conference presentations. Celebrating, even from afar, each other's achievements: Marjorie's op-ed. Book publications by Elizabeth L. Hillman, Beth Van Schaack, and Connie de la Vega. My own wee honor last spring. The birth of Elena Baylis' daughter, our littlest IntLawGrrl. Naomi Norberg's successful defense of dissertation just last week, resulting in a Sorbonne Ph.D. with highest honors. We go, 'Grrls!
A very happy birthday to all IntLawGrrls, and, as my own Nana would've added, many, many more!