On September 27

On this day in ...
... 2002, East Timor (flag at left), as English speakers call the Democratic Republic of Timor-Leste, became the 191st member state of the United Nations. It was admitted by unanimous vote of the U.N. General Assembly, whose President noted that it "had been the first independent State to emerge in the twenty-first century." (In 2006, Montenegro became the 192d, and most recent, U.N. member state.) Composed of about 1.1 million people, East Timor is among the world's poorest countries.

(Prior September 27 posts are here, here, and here.)

Fact-finding Without Facts

(Tremendous thanks to IntLawGrrls for inviting me to contribute this guest post)

The international criminal tribunals confront severe impediments to accurate fact-finding.
The challenge of that fact-finding process is the subject of my book, Fact-finding Without Facts: The Uncertain Evidentiary Foundations of International Criminal Convictions, published just days ago by Cambridge University Press. The book is summarized in an article I contributed to a 2009 symposium edition.

The basis for my study is a large-scale review of transcripts from the International Criminal Tribunal for Rwanda, the Special Court for Sierra Leone, and the Special Panels for East Timor (below left). (photo credit) This review demonstrates that many international witnesses are unable to convey the information that court personnel expect – and need – to receive if they are to make reasoned factual assessments in which we can have confidence.
Moreover, what clear information witnesses do provide in court often conflicts with the information that the witnesses previously provided in their pre-trial statements. I find that:

► Such inconsistencies pervade international criminal testimony; and

► They frequently pertain to core features of that testimony.

In particular, my review of all of the completed Sierra Leone Special Court cases and a handful of the Rwanda Tribunal cases shows that more than 50 percent of the prosecution witnesses appearing in these trials testified in a way that was seriously inconsistent with their pre-trial statements. Sometimes the inconsistencies related to such details as the date, time, or place of the crime, but as frequently they related to such fundamental matters as the nature of the crime and the nature of the defendant’s involvement in the crime.
After delineating these testimonial deficiencies, I consider some of their causes:

► Limitations on witness capacity: Many witnesses lack the education and life experiences to be able to read maps, tell time, or answer questions concerning distances and dates. Cultural norms and taboos create additional communication difficulties, as some witnesses are reluctant to speak directly or at all about certain events and as international judges inappropriately assess witnesses’ demeanor and willingness to answer questions by Western norms. The need for language interpretation for virtually every fact witness and the unfamiliarity of most witnesses with the predominantly adversarial trial procedures used at the international tribunals only compound these problems.
► Witness mendacity: Educational, cultural, and linguistic factors likely cause many of the inconsistencies and other testimonial deficiencies that pervade international trials, but witness mendacity provides an equally plausible explanation. Indeed, my review of ICTR cases shows that more than 90 percent of cases that went to trial featured an alibi or another example of diametrically opposing testimony from defense and prosecution witnesses. Although some of these witnesses may be honestly mistaken, the use of alibis and the incidence of contradictory testimony so vastly exceeds that which is common to domestic trials that it would be naïve to dismiss a substantial portion of it as arising from honest mistakes.
These empirical findings lead me to conclude that international criminal trials are less reliable adjudicatory mechanisms than they appear.

But, the fact that international tribunals have considerable difficulty determining who did what to whom does not necessarily call into question the legal accuracy of international criminal judgments. What matters for that question is the way in which the Trial Chambers respond to the testimonial deficiencies that pervade their trials.

Comparison between witness testimony and the Trial Chambers’ description and treatment of that testimony led to the discovery that, as a general matter, the tribunals take something of a cavalier approach to fact-finding impediments. Many testimonial deficiencies are never mentioned in the Trial Chambers’ judgments, and most of those that are, are reflexively attributed to innocent causes that do not impact the witnesses’ credibility.
So, why do the Trial Chambers seem so unconcerned about testimonial deficiencies?

In my view, the Trial Chambers’ cavalier attitude derives most directly from principles of organizational liability that appeared in Article 9 of the 1945 Charter of the International Military Tribunal at Nuremberg. These organizational liability principles were ostensibly discredited during the Nuremberg Trial (right), but they continue to exert a powerful influence over fact-finding at today’s international tribunals.

Indeed, if the Trial Chambers appear largely unconcerned about testimonial deficiencies, it may be because the testimony itself is not the exclusive basis for the Trial Chambers’ factual determinations.

The Trial Chambers appear to be convicting defendants on the basis of the acts charged in the indictments and basing their factual findings about those acts solely on the testimony that has been presented to them. In fact, however, the Trial Chambers supplement that testimony with inferences that they draw from the defendants’ official position or institutional affiliation in the context of the international crimes that have been committed.

Careful examination shows:

► Why the inferences drawn from the position or affiliation of the accused can prove particularly compelling; and

► How such inferences can explain and justify both:

►► The Trial Chambers’ casual treatment of most fact-finding impediments; and

►► Certain otherwise inexplicable acquittals.

In short, because objective or reliable evidence is so difficult to come by in the international realm, Trial Chambers rely on official position or institutional affiliation as a proxy of sorts for the defendant’s involvement in the crimes.

Prosecutors must still present some evidence to support the specific allegations appearing in the indictment. The stronger the inferences that can reasonably be drawn from official position, however, the more that Trial Chambers are willing to overlook problematic features of prosecution witness testimony or attribute those problems to innocent causes.
After proposing methods for improving the quality of international tribunal testimony, in my book’s final chapter I consider the broadest and most pressing normative question:

Will the fact-finding impediments, if they persist, fatally undermine the work of the international tribunals?

Various ways of justifying international criminal fact-finding are addressed. The primary focus, though, is on how the evidence presented at the international tribunals interacts with the applicable standard of proof. Particularly explored are modern scholars who view beyond a reasonable doubt as variable standard that signifies -- and should signify-- different levels of certainty in different cases. I conclude that this understanding of the standard of proof not only affords an alternative explanation for international criminal fact-finding, but also provides a solid and satisfying justification for it.

A Luta Continua! The struggle for gender justice in East Timor 10 years after the independence ballot

(My thanks to IntLawGrrls for the opportunity to contribution this guest post)

One of the bravest but least known acts during the East Timorese resistance to Indonesian occupation occurred in November 1998, when over 20 Timorese women told their stories of surviving sexual violence to crowds of hundreds at a public meeting in Dili. The stories were collated into a 1999 book called Buibere, which means ‘woman’ in Mumbai, the second most common Timorese language after Tetum. It was written only in English, published in Australia, and intended as an advocacy document for the international community. The persecution, as described first-hand in these collected testimonies, was intense, and included rape, torture and other inhumane acts.
Today marks the tenth anniversary of the popular consultation held in Indonesian-occupied East Timor on 30 August 1999. On 4 September 1999, it was announced that 78.5% of the population had voted against East Timor remaining as part of Indonesia, despite intimidation and full knowledge of the likely reprisal. Independence was granted to the territory after 25 years of brutal invasion. The announcement of the ballot result on 4 September 1999 resulted in immediate acts of violence, a scorched earth policy, looting, massive evacuations, and forced deportation of the population. In the months surrounding the 1999 vote, pro-Jakarta militias killed an estimated 1,400 people, burned towns to the ground, destroyed 80% of the territory's infrastructure, and forced or led more than a quarter of a million villagers into Indonesian-ruled West Timor.
In November 2001, in an independent East Timor controlled by a UN mission, the local women’s rights nongovernmental organization, FOKUPERS, released a second version of Buibere, in Tetum, at a public event, with many of the women who contributed stories to the book present. The second edition is intended to formally respect and honour both the contribution of East Timorese women to independence and the high price they paid during the Indonesian occupation.
Some of the problems that continue to face the women of East Timor were graphically outlined by advocate Sister Maria de Lourdes Martins Cruz at the launch:
‘A luta continua!’ she said, and described how the women of East Timor were still second-class citizens in their own land. ‘A luta continua!’ and she described how girls still don’t receive the same educational or employment opportunities as men. ‘A luta continua!’ and she told of domestic violence still rampant, women still serving as slaves in their own homes, women bought and sold like commodities under the tradition of bride price, and men leaders still unwilling to accept East Timorese women as equals. Ovation after ovation shook the hall.
Given the serious nature of the crimes outlined in Buibere, Sister Lourdes’ speech is striking in that in the eyes of those survivors present that day, independence did not necessarily mark the end of violence against women, but rather just a new manifestation of violence and subordination. (credit for 1998 photo by Jude Conway of demonstration in Dili challenging violence against women; the sign says "STOP Murder!")

I contend that Sister Maria was correct in stating that the problems facing Timorese women in the independence period are linked to the problems women faced during the occupation. Recognition and redress under the law for gender-based violence in war is linked to recognition and redress for domestic violence and socio-economic rights in the ‘peace’.
The danger for East Timorese women now is what I term the ‘changing the curtains’ phenomena — that fundamental changes in the sovereignty of the State in the form of independence may mean that the basic conditions of women’s lives, or their potential to claim their legal rights, does not change in any meaningful sense, as described in the call to arms by Sister Lourdes. Despite some important efforts to include women and their experiences in the justice mechanisms established in East Timor since 1999, Timorese women such as Sister Maria may indeed have cause to be disenchanted.
This then raises the crucial question — transitional justice rests on the assumption that there has been a transition from a state of conflict to a state of peace, however uneasy. If women are still experiencing serious levels of domestic violence and economic deprivation, commensurate with their experience of violence during the proclaimed conflict, have they entered a state of transition at all? If we ask the question — transition to what? — then the next logical question is therefore — justice for whom?

(See further: CAVR Final Report Chega!, and Independent women. The story of women’s activism in East Timor, by Irena Cristalis and Catherine Scott.)

On August 30

On this day in ...
... 1943 (65 years ago today), during World War II, in its version of an Anglo-American "Declaration on German Crimes in Poland," the U.S. Department of State detailed allegations that Polish civilians were being killed, displaced, and sent to work camps in Germany, then stated: "The United States Government reaffirms its resolve to punish the instigators and actual perpetrators of these crimes."
... 1999, "the population of East Timor voted overwhelmingly for independence from Indonesia," which had invaded the country 9 days after it declared its independence from Portugal in 1975. The country, officially known as the Democratic Republic of Timor-Leste, occupies the eastern half of an island within the Indonesian archipelago. (map credit)

On October 25, ...

... 1999, the Security Council, acting pursuant to its powers under Chapter VII of the U.N. Charter, adopted Resolution 1272, which established the U.N. Transitional Administration in East Timor (UNTAET) comprising administrative and humanitarian components as well as a peacekeeping force of up to 8,950 troops and 200 military observers.
... 1955, Sadako Sasaki (right) died at the age of 12. She was 2 when the United States dropped an atomic bomb on her home city of Hiroshima, Japan on August 6, 1945. At 1st a "strong" and "athletic girl," at age 11 she became dizzy and collapsed while practicing for a race. "Sadako was diagnosed with leukemia, 'the atom bomb' disease." As described in Eleanor Coerr's children's book Sadako and the Thousand Paper Cranes (2004), Sasaki, motivated by an ancient legend that promised the granting of a wish to anyone who folded 1,000 paper cranes, began making the origami symbols of peace in the hope of getting well. By the time of her death she'd completed more than 1,000. A statue of her holding a golden crane was unveiled at Hiroshima Peace Park 3 years later; on it are inscribed these words:

This is our cry, This is our prayer, Peace in the world.

On September 20, ...

.... 1973, Carol C. Laise became the 1st woman Assistant Secretary in the U.S. State Department. Appointed Assistant Secretary of State for Public Affairs, she held the post until March 27, 1975, then served as the 1st woman Director General of the Foreign Service (1975-1977). Other government posts included the U.S. Civil Service Commission; State Department international relations officer in Indian and South Asian affairs (1948 to 1956); and U.S. Ambassador to Nepal (1966-1973). In 1991, she died at age 73, having survived her husband, diplomat Ellsworth Bunker.
... 1999, a force of 1,190 soldiers, most from Australia or New Zealand, landed at the airport in the capital city of Dili in a U.N. effort "restore law and order" in East Timor, where militias "are thought to have killed thousands" in the couple of weeks since the electorate voted overwhelmingly for independence from Indonesia, which had invaded in 1975 after Portugal ended its 450-year colonization of the tiny state (flag at left), which occupies half an island.

On May 19, ...

... 1921, as the Statue of Liberty neared its 35th birthday, Congress passed an Emergency Quota Act, putting a halt to the massive immigration of the previous century. The Act and its successor, the Immigration Act of 1924, by limiting new arrivals to a small percentage of those of the same nationality already in the United States, nearly shut the door to immigrants from anywhere other than northern and western Europe. Today immigration remains a contested issue, as our colleagues at ImmigrationProf Blog have been detailing, a compromise bill announced Thursday already garnering is much criticism.
... 2002 (five years ago today), East Timor, which had been under the supervision of the United Nations since acquiring independence in 1999 from Indonesia, which had ruled it with an iron hand for the prior quarter-century. In an election last Sunday, the tiny country (fewer than 1 million people, occupying 1/2 of the island of Timor, itself about the size of Netherlands) put Nobel Peace Prizewinner José Ramos-Horta on track to become its new President.