In passing: Geraldine A. Ferraro

(In passing marks the memory of a person featured in IntLawGrrls)

Geraldine A. Ferraro died from blood cancer yesterday in a Boston hospital. She was 75 years old.
While working by day as a schoolteacher, the New York native enrolled in night classes at Fordham Law School; "she was one of two women in a class of 179 and received her law degree in 1960." As a district attorney she focused on crimes involving violence against women; later, as a member of the U.S. House of Representatives, she pushed for legislation on equal rights, abortion rights, and other women's issues.
Ferraro made in history in 1987: chosen as the Democratic nominee for Vice President, she was the 1st woman to run at the top of a major party's slate.
She and her running mate, U.S. Sen. Walter F. Mondale, lost the election to Ronald Reagan and his running mate, wo later would become the first of two men named George Bush to serve as President of the United States.
In later years, Ferraro contributed to the promotion of human rights. She served as the United States' Ambassador to the U.N. Human Rights Commission from 1993 to 1996, during the administration of President Bill Clinton. In a statement issued yesterday, he and Secretary of State Hillary Clinton said:

For us, Gerry was above all a friend and companion. From the rough-and-tumble of political campaigns to the important work of international diplomacy, we were honored to have her by our side. She was a tireless voice for human rights and helped lead the American delegation to the landmark Fourth World Conference on Women in Beijing in 1995. Through it all, she was a loyal friend, trusted confidante, and valued colleague.

...and counting...

(Occasional sobering thoughts.) The United States, France, and other countries intervened militarily against Libya's government yesterday -- the 8th anniversary of the U.S.-led invasion of Iraq.
Participation by France (under President Nicolas Sarkozy) departed from the earlier script, when France (under President Jacques Chirac) vocally opposed intervention and so thwarted the United States' bid for U.N. Security Council authorization.
This time around, France pushed earlier and hard for a Security Council resolution. Some officials in the United States initially resisted. But as predicted nearly a month ago by our Opinio Juris colleague Chris Borgen, a tweet heard 'round the world (below center, by Anne-Marie Slaughter, who just finished a 2-year stint as the head of policy planning at the State Department) seemed to set the stage for support by Secretary of State Hillary Clinton and, eventually, President Barack Obama.


Five of the 15 Security Council states, including China, Russia, and Germany, abstained from Resolution 1973, which was billed as a no-fly resolution during early negotiations, yet included this paragraph authorizing greater intervention:

Protection of civilians
4. Authorizes Member States that have notified the Secretary-General, acting nationally or through regional organizations or arrangements, and acting in cooperation with the Secretary-General, to take all necessary measures, notwithstanding paragraph 9 of resolution 1970 (2011), to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya, including Benghazi, while excluding a foreign occupation force of any form on any part of Libyan territory, and requests the Member States concerned to inform the Secretary-General immediately of the measures they take pursuant to the authorization conferred by this paragraph which shall be immediately reported to the Security Council; ....

Hence yesterday's Tomahawk strikes on Libyan air defense systems. Hence, too, today's complaint from an advocate of the no-fly zone -- the leader of the Arab League said "the use of force was excessive following an overnight bombing campaign that Libya claims killed at least 48 people."
The Security Council-endorsed actions are taking place in the name of civilians. A noble cause, yet one without end. If Libya, why not other countries whose governments harm their own people? To name one, why not Côte d'Ivoire, site of tragic deaths amid months-long post-election violence?
As made explicit in the preamble to Resolution 1973, the Security Council resolved to act in the name of the fledgling doctrine of responsibility to protect. The Council's choice of Libya, to the exclusion of other global trouble spots, exposes once again the unsettling selection bias inherent in current conceptualizations of that doctrine.
Unsettling too is the notion of a 3d (or 4th, depending on how one counts AfPak) armed conflict in which the United States is engaged -- and in which civilian deaths are likely to occur even in the course of efforts to protect civilians.
While waiting to see what transpires on the Libyan front, it is due time to review casualties since our last post, 16 weeks ago, in the long-running conflicts in Afghanistan and Iraq.
► In Afghanistan, "[t]argeted killings of civilians in Afghanistan doubled" in 2010, according to an annual report recently issued by the United Nations. Specifically, there was "a 15 percent increase in the number of civilians killed to 2,777 -- continuing a steady rise over the past four years" in the nearly decade-old conflict.
The U.S. Department of Defense reports that in Afghanistan, coalition military casualties stand at 1,505 Americans, 360 Britons, and 507 other coalition servicemembers. That's an increase of 89, 15, and 23 casualties, respectively, in the last 16 weeks. The total coalition casualty count in the Afghanistan conflict is 2,372 service women and men.
► Respecting the Iraq War launched 8 years ago this weekend -- a milestone observed by scattered protests --Iraq Body Count reports that between 100, 051 and 109,318 Iraqi women, children, and men have died in the conflict in Iraq since the U.S.-led invasion in March 2003. That represents an increase of between 1,030 and 1,224 persons since 16 weeks ago. According to the U.S. Defense Department, 4,440 American servicemembers have been killed in Iraq, representing 11 servicemember deaths in the last 16 weeks. (As posted, U.S. troops are the only foreign forces remaining in Iraq.)

'Nuff said

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

'Viewership of Al Jazeera is going up in the United States because it's real news. You may not agree with it, but you feel like you're getting real news around the clock instead of a million commercials and, you know, arguments between talking heads and the kind of stuff that we do on our news which, you know, is not particularly informative to us, let alone foreigners.'

-- U.S. Secretary of State Hillary Clinton (right), referring to a Qatar-based media outlet (cited in posts in our North Africa series) during her testimony before the U.S. Senate Foreign Relations Committee this week.
Care to wager how long before U.S. cable stations begin picking up AJE?

UNCLOS needs bipartisan push

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

Twenty-eight years ago, on December 10th, 1982, 119 nations signed the United Nations Convention on the Law of the Sea, a convention that the United States has yet to join. It was written recently that the American government can no longer approve treaties, at least not ones of importance. While IntLawGrrls Diane Marie Amann made a convincing counterargument, the case of the United Nations Convention on the Law of the Sea (prior posts) could leave one pondering the issue again. (credit for photo of 1982 U.N. law of sea conference in Montego Bay, Jamaica)
UNCLOS is recognized worldwide as one of the great accomplishments in modern international law. Responding to changes of ocean use that were undermining the three-century-old Grotian regime of free seas, negotiators labored for more than a decade to craft a convention that benefited all nations. Then they labored another dozen years to resolve the last of the concerns, enumerated by President Ronald Reagan, which had previously kept the United States from joining the Convention.
Though it can be intimidating in its scope and detail, the Convention has garnered the support of the U.S. Navy and Coast Guard, the energy, transportation, fishing and telecommunications industries, and non-profit organizations committed to conservation, law, and international engagement. In fact, there is no international agreement in decades that has garnered such a broad and powerful body of domestic support.
In spite of this support, UNCLOS, with its partner agreement on the implementation of Part XI, has been stalled in the Senate for 16 years.
For the first eight years, Senator Jesse Helms (R-N.C.), who chaired the Foreign Relations Committee, refused all requests for hearings. In 2003, when Helms retired and Senator Richard Lugar (R-Ind.) took his place, the Convention moved smoothly through hearings and unanimous approval in committee, but was brought to a halt by Senate Majority Leader Bill Frist (R-Tenn.).
After Democrats took control of the Senate in 2007, the Convention was once again approved in committee -- only to have George W. Bush’s support disappear in light of the foxhole conversion of Senator John McCain (R-Ariz.) to opposition to the Convention during his campaign for the Republican nomination.
The Convention returned to the Senate Foreign Relations Committee again at the beginning of 2009. The new administration of President Barack Obama listed the Convention as one of 17 “priority” treaties, but never placed it above the economy and other domestic issues in the Administration’s legislative agenda. Without active Presidential support, the Senate declined to act.
At the beginning of 2011, the Convention will automatically return to the Senate Foreign Relations Committee to start the process once again.
So, should supporters of the Convention be discouraged and turn their attention and energy to other matters in 2011? That would be understandable, but it would be wrong.
The loss of 6 Democratic seats and replacement of several supportive Republicans certainly increases the effort needed to secure Senate advice and consent over the current session, during which the 2/3 majority was assured. Still, the outlook is more promising than in any other session since hearings began in 2003.
The key to approval of the Convention in 2011 lies in mobilizing a bipartisan coalition that includes Senate Democrats and Republicans, leaders of major industries, environmental groups, good governance and international engagement organizations, and respected Republican statesmen and military leaders. Most of these have already endorsed the Convention, but they won’t pull out their big guns and commit their political and financial assets unless and until the President calls on them to make common effort to secure approval.
The downside for the President is that the Convention will be subjected to all the procedural roadblocks that opposing Senators, James Inhofe (R-Okla.), David Vitter (R-La.), and Jim DeMint (R-S.C.) can devise. This includes not one but two filibusters and cloture votes -- one for adoption of the Convention and another for adoption of the resolution of advice and consent. These delays would come at the cost of floor time for other legislative issues.
In addition to the Senate battle, another contest will be fought by grassroots groups through faxes and e-mails.
Conservative and libertarian networks such as “FreeRepublic.com” and “GrassFire.org” have deluged Senate offices with thousands of messages on a moment’s notice. These communications are fraught with errors and outright lies, but the number of opposition messages puts senators on the defensive.
In the past, there have been no corresponding efforts to support for the Convention. This has to change. But just as businesses want to know that the Administration is serious before committing their CEOs and their political resources, public interest groups want to know that they will be part of a team effort and will not be abandoned by the Administration along the way.
Two women leaders will be key to success in approving the Convention: Secretary of State Hillary Clinton and Senator Lisa Murkowski (R-Alaska). (photo credit) Both have been outspoken supporters of the Convention, notably during Secretary Clinton’s confirmation hearing (video clip). The commitment recently was repeated Clinton’s comments to the Commonwealth Club in San Francisco:

We're going to prioritize the Law of the Seas next year. It is critical to how we're going to manage the Arctic. It is critical to our credibility in working with nations in Southeast Asia over questions regarding activities in the South China Sea. It is so much in America's interests. And the objections to it are just not well founded. So I'm hoping that we'll be able to get a hearing on it early in the year and get a vote on it as soon thereafter as possible.

In the end, success or failure regarding the Convention on the Law of the Sea rests with President Obama, for three reasons:
► First, he, with Senate Majority Leader Harry Reid (D-Nev.), will determine where the Convention fits in the Senate’s agenda;
► Second, military leaders, always strong supporters of the Convention, will not move forward until the President directs them to do so; and
► Third, the heavy hitters of industry, environment and public interest groups will only move as part of a concerted effort with the Administration.
While Clinton and Murkowski will help lead the effort to move the Convention through the Senate, their effort cannot get underway until the President enlists partners inside and outside the government in a bipartisan and multi-sector effort to secure the support of all but the most ideological opponents in the Senate.

'Nuff said

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

MODERATOR 1: Okay. Which designers do you prefer?
SECRETARY CLINTON: What designers of clothes?
MODERATOR 1: Yes.
SECRETARY CLINTON: Would you ever ask a man that question? (Laughter.) (Applause.)
MODERATOR 1: Probably not. Probably not. (Applause.)

-- Interview with U.S. Secretary of State Hillary Rodham Clinton yesterday, at KTR Studio (above) in Bishkek, Kyrgyzstan. Full transcript and photo credit here.

'Nuff said

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

Diplomacy has long been the backbone of U.S. foreign policy. It remains so today. The vast majority of my work at the State Department consists of engaging in diplomacy to address major global and regional challenges, such as confronting Iran's nuclear ambitions, facilitating negotatiations between the Israelis and the Palestinians, enhancing stability on the Korean Peninsula, and working with other governments to bring emergency relief to Haiti, And President Barack Obama and I certainly relied on old-fashioned diplomatic elbow grease to hammer out a last-minute accord at the Copenhagen conference on climate change last December.

-- U.S. Secretary of State Hillary Clinton, in "Leading Through Civilian Power: Redefining American Diplomacy and Development." (credit for October 2010 photo) Clinton develops her wide-ranging exposition of the global work at State and myriad other agencies around the theme of her own initiative, "the first Quadrennial Diplomacy and Development Review (QDDR), a wholesale review of the State Department and USAID." The article appears in the November/December 2010 Foreign Affairs, a "special issue" on the topic of "The World Ahead." Some of the other articles are of interest, but the lineup as a whole discomfits: if it weren't for Secretaries of State (Clinton and her predecessor, Madeleine Albright), there'd be virtually no women authors in the entire issue. We, too, think deeply about the world to come.

'Nuff said

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

'How come you've got so many women?'

-- Unnamed Russian generals this past spring, quoted in a Washington Post article entitled In nuclear negotiations, more women at the table for U.S. Prompting the reaction, according to the Post's by Mary Beth Sheridan, was the "array of American women" at a disarmament negotiating table: chief negotiator Rose Gottemoeller (right), Assistant Secretary of State, Bureau of Verification, Compliance, and Implementation; Gottemoeller's Deputy Assistant Secretary of State, Marcie Berman Ries; and 2 scientists. Several other women are cited as shapers of U.S. policy, including: Ellen O. Tauscher, Under Secretary of State for Arms Control and International Security; Michèle A. Flournoy, Under Secretary of Defense for Policy, and, of course, Secretary of State Hillary Clinton. On concluding the list, however, Sheridan discussed this caveat:

Despite their advances, American women are still nowhere near equality in terms of their share of senior national security jobs.

Clinton in Cambodia

U.S. Secretary of State Hillary Rodham Clinton recently visited Cambodia as part of an Asia tour and gave remarks in support of the accountability process underway there.

After visiting Toul Sleng detention center with a group of students (at left, photo credit), Secretary Clinton remarked in a town-hall style meeting:

A country that is able to confront its past is a country that can overcome it. ... Countries that are held prisoner to their past can never break those chains and build the kind of future that their children deserve. ... Although I am well aware the work of the tribunal is painful, it is necessary to ensure a lasting peace.


See here for her remarks after her visit to Toul Sleng.


As we've blogged before, the future of the ECCC remains uncertain. Case 002 against regime leaders is proceeding apace, but Cases 003 and 004, against mid-level former Khmer Rouge, are controversial. The Cambodian Prime Minister, Hun Sen, has indicated he does not support these cases, ostensibly because they will plunge the country back into civil war. His remarks and the intransigence of the Cambodian Co-Prosecutor and Co-Investigating Judge in moving forward on the two cases have given rise to concerns about political manipulation of the ECCC. The assumption is that individuals under investigation are political allies of the Prime Minister, who recently told U.N. Secretary General Ban Ki Moon that he should close down the U.N.'s human rights field office because it is interfering in Cambodian internal affairs.




The above photo at left is of Secretary Clinton with Youk Chhang, founder/director of the Documentation Center of Cambodia. The photo at right is of the family (grandchild, daughter, and son-in-law) of Chan Kin Srun, one of the detainees killed at Toul Sleng in 1978 being given a photograph of Secretary Clinton looking at Chan Kin Srun's intake portrait at Toul Sleng. The Khmer Rouge meticulously documented the identity of each detainee before interrogating and then executing him or her.

Kudos to Secretary Clinton for keeping accountability high on her agenda in the region.

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.

United States' cooperation & the ICC

(Part 1 of a 2-part series; Part 2 is here)

The International Criminal Court is almost entirely dependent on state cooperation to effectuate its mandate to bring to justice individuals responsible for committing “the most serious crimes of concern to the international community as a whole.” State cooperation is also central to the evolving relationship between the ICC and the United States.
President Barack Obama entered office with a pledge to temper the prior administration’s hostility toward the ICC. Since then, he has been conducting a high-level review of U.S. policy toward the ICC. Although no official position has been announced, subsequent public statements by:

• Secretary of State Hillary Rodham Clinton (and here) (above left),
• U.S. Ambassador to the United Nations Susan Rice (and here) (below right),
• Ambassador-at-Large for War Crimes Issues Stephen J. Rapp (and here & here), and
• Legal Advisor Harold Hongju Koh (and here)

have since confirmed that the United States stands ready to re-engage with the Court.
The United States, along with other states, has rendered a range of formal and informal assistance to the ad hoc tribunals. Over the years, the United States has:

• supplied technical assistance
• seconded personnel,
• utilized diplomatic and economic sanctions,
• frozen assets,
• shared evidence,
• offered rewards for information leading to the arrest or conviction of indictees, and
• authorized and participated in multilateral military efforts to track and apprehend suspects.

As such, the United States has extensive experience using its intelligence capabilities, criminal justice expertise, and military muscle to further international justice.
Even as a non-state party, the United States is poised to continue to play this role vis-à-vis the ICC in light of the détente between the United States and the Court. As will be discussed in tomorrow's post, however, aspects of domestic law render a whole range of forms of assistance potentially unlawful.

(Not) facing the nation

IntLawGrrls formed in 2007 partly out of concern about the narrow range of what passes for wide-ranging public discourse.

Examples:

►A congressional hearing on the question of what to do about Guantánamo featured a panel purportedly representing the spectrum of answers. A photo in the next day's paper told a different story. Every witness had once worked in the U.S. Executive Branch and lived on the East Coast. All but one were of European ancestry, and only one could lay claim to any expertise in human rights law. None was a woman. (The picture in mind appeared in late 2006, if memory serves. But it's replicated weekly on Capitol Hill. (credit for 2009 photo of Senate Foreign Relations Committee hearing on Iran))

►Op-ed pages of major newspapers feature men in proportions far greater than that of men among the U.S. population. This phenomenon spluttered onto news pages in 2005, when the University of Southern California law professor at right, Susan Estrich, complained, and an op-ed editor pushed back. Disparity in the sex of cybercommentators, then and now, appears even greater.

IntLawGrrls endeavors to help change things, by: offering a virtual-world space for commentary by women; pointing out women's accomplishments through items like our expert series; and improving real-world public discourse through events like our "Women and International Criminal Law" roundtable to be held this October 29.

Now comes a new study charting that in the world of Sunday morning talk shows -- reputedly a world to which official Washington pays close attention -- disproportions are, well, off the chart.

The evidence is presented forcefully in "Guess Who Won't Be Coming to the Studio: An Unknown Congress," published in the Summer 2010 edition of the law journal Green Bag. The author is Alex B. Mitchell (left), a 3d-year law student at George Mason University School of Law in Arlington, Virginia.

Mitchell analyzed who appeared as guests in 2008-2009 on CBS' "Face the Nation," NBC's "Meet the Press," ABC's "This Week," "Fox News Sunday," and CNN's "State of the Union." All his findings are well worth pondering with regard to representation not only on talk shows but also in the halls of Congress. Here're his key bottom lines:

► Minorities: More than a third of Americans -- 36.9% of the population -- belong to this category. Among them, of course, is President Barack Obama. Yet their representation in Congress is less than half the overall number -- 14.6%. And their representation on the talk shows? A near-infinitesimal 2.5%.

► Women: More than half of Americans -- 50.8% of the population -- are female. Among them, of course, are House Speaker Nancy Pelosi and Secretary of State Hillary Clinton, women who stand 3d and 5th, respectively, in the line of presidential succession. Yet women's representation in Congress is less than a third the overall number -- 16.9%. And women's representation on the talk shows? 13.5%, two-thirds smaller than their representation among all Americans.

Further skewing matters are a few other facts that Mitchell unearthed.

At a time when 58.6% of all members of Congress were Democrats (credit for 2008 photo of "freshmen" members of Congress), 49.8% of all talk-show guests were Republicans. Whereas Senators made up fewer than 20% of the Congress, more than 80% of all talk-show guests came from that upper chamber. And though fewer than 10% of all members of Congress fit into the category that Mitchell defined as "white, male U.S. Senators in office 6+ years," more than 60% of all talk-show guests fit in this category.

Bottom line on this set of facts:

► During the period studied, only 1 woman ranked among the top 10 repeat Congressional guests on these shows. Today's puzzler: Can you name her? (Answer below.)

The implications of Mitchell's research could fill volumes. Mitchell put it succinctly:

Explanations aside, the empirical effect of predominantly interviewing one demographic ... is that the wealth of diversity of ideas that make up our nation is stifled.

'Nuff said.

Apology / disculpa

The apology given for U.S. tests done six decades ago on unknowing Guatemalans was profuse.
Among the words in the bilingual, joint statement of apology, reprinted in full below, that Secretary of State Hillary Clinton (below left) (credit) and Health and Human Services Secretary Kathleen Sebelius (bottom left) (credit) issued on Friday:
► unethical / antiético
► outraged / indignados
► reprehensible / reprochable
► regret /disculpas
► abhorrent / abominables
► sad / triste
► appalling / atroz
None overstates the significance of a recent finding by Susan M. Reverby (right), the the Marion Butler McLean Professor in the History of Ideas and Professor of Women's and Gender Studies at Wellesley College. Reverby unearthed what a research team, funded by a grant from the United States' National Institutes of Health, did from 1946 to 1948. As stated by Dr. Francis S. Collins, current director of NIH, a D.C. briefing Friday, the team

intentionally infected vulnerable populations, including prisoners and mentally ill patients, with sexually transmitted diseases, including syphilis, gonorrhea, and chancroid. The purpose of the study was to test the effectiveness of penicillin, which was relatively new at the time.

Notwithstanding that "the intention was to provide treatment, and the evidence supports that the vast majority were adequately treated," Collins identified 4 "primary ethical violations":

► Experimentation on vulnerable populations;

► Apparent absence of informed consent;

► Deception respecting what what the team was doing to the subjects; and

► Intentional infection of potentially harmful pathogens.

A federal investigation is under way.

One hopes that investigators ask a question reporters at the briefing did not:

What does it mean that these tests took place at the same time that Americans were prosecuting Germans for medical experimentation -- in the same year, 1947, that a physician advising American war crimes prosecutors drafted what would come to be known as the Nuremberg Code, the keystone of current safeguards for human subjects?

While awaiting answer, ponder the Clinton-Sebelius apology:

The sexually transmitted disease inoculation study conducted from 1946-1948 in Guatemala was clearly unethical. Although these events occurred more than 64 years ago, we are outraged that such reprehensible research could have occurred under the guise of public health. We deeply regret that it happened, and we apologize to all the individuals who were affected by such abhorrent research practices. The conduct exhibited during the study does not represent the values of the United States, or our commitment to human dignity and great respect for the people of Guatemala. The study is a sad reminder that adequate human subject safeguards did not exist a half-century ago.
Today, the regulations that govern U.S.-funded human medical research prohibit these kinds of appalling violations. The United States is unwavering in our commitment to ensure that all human medical studies conducted today meet exacting U.S. and international legal and ethical standards. In the spirit of this commitment to ethical research, we are launching a thorough investigation into the specifics of this case from 1946. In addition, through the Presidential Commission for the Study of Bioethical Issues we are also convening a body of international experts to review and report on the most effective methods to ensure that all human medical research conducted around the globe today meets rigorous ethical standards.
The people of Guatemala are our close friends and neighbors in the Americas. Our countries partner together on a range of issues, and our people are bound together by shared values, commerce, and by the many Guatemalan Americans who enrich our country. As we move forward to better understand this appalling event, we reaffirm the importance of our relationship with Guatemala, and our respect for the Guatemalan people, as well as our commitment to the highest standards of ethics in medical research.

Declaraciones de la secretaria de Estado Hillary Rodham Clinton y la secretaria de Salud y Servicios Sociales Kathleen Sebelius sobre el Estudio de inoculación de enfermedades de transmisión sexual del Servicio de Salud Pública de Estados Unidos de 1946 a 1948:

El estudio de inoculación de enfermedades de transmisión sexual que se llevó a cabo de 1946 a 1948 en Guatemala claramente fue antiético. Aunque estos sucesos ocurrieron hace más de 64 años, estamos indignados de que tal investigación reprochable haya ocurrido bajo el pretexto de la salud pública. Lamentamos profundamente que esto haya sucedido y ofrecemos nuestras disculpas a todas las personas que resultaron afectadas por esas abominables prácticas de investigación. La conducta demostrada durante el estudio no representa los valores de Estados Unidos ni nuestro compromiso con la dignidad humana y el gran respeto hacia el pueblo de Guatemala. El estudio es un triste recordatorio de que las garantías adecuadas para la investigación en seres humanos no existían hace medio siglo.
En la actualidad, los reglamentos que gobiernan la investigación médica en seres humanos financiada por Estados Unidos prohíben este tipo de violaciones atroces. Estados Unidos es inquebrantable en su compromiso de garantizar que todos los estudios médicos en seres humanos que se realizan en la actualidad, cumplan con las rigurosas normas legales y éticas de Estados Unidos e internacionales. Bajo el espíritu de este compromiso con la ética investigativa, estamos iniciando una minuciosa investigación con respecto a los detalles de este caso de 1946. Además, mediante la Comisión Presidencial para el Estudio de Asuntos de Bioética, convocaremos también a un cuerpo de especialistas internacionales para que revise e informe sobre los métodos más eficaces para asegurar que toda investigación médica en seres humanos que se realice en el mundo en la actualidad cumpla con rigurosas normas éticas.
El pueblo de Guatemala es uno de nuestros amigos cercanos y vecinos en las Américas. Nuestros países son socios en una variedad de asuntos y nuestros pueblos están vinculados por valores compartidos, comercio y por los muchos stadounidenses de origen guatemalteco que enriquecen nuestro país. A medida que avanzamos para comprender mejor este atroz suceso, reiteramos la importancia de nuestra relación con Guatemala y nuestro respeto por el pueblo guatemalteco, así como nuestro compromiso con las normas éticas más exigentes en la investigación médica.

On September 28

On this day in ...
... 1995 (15 years ago today), a 400-page agreement to give control over a significant portion of the West Bank to Palestinians was signed by the leaders of Israeli and the Palestine Liberation Organization at a ceremony in the White House, as U.S. President Bill Clinton, Egyptian President Hosni Mubarak, and King Hussein of Jordan looked on. The signing leaders, Yitzhak Rabin and Yasser Arafat, then shook hands. Rabin would be assassinated in just 6 weeks; Arafat would die from natural causes 9 years later. As discussed in the press briefing at right by President Barack Obama, Secretary of State Clinton, and envoy George Mitchell, a new round of talks between current leaders of Israel and the Palestinian Authority was launched earlier this month.

(Prior September 28 posts are here, here, and here.)

The United States & the ICC

(Part 2 of a 3-part series)

For all the years of its existence, the International Criminal Court has, in effect, shared space with another occupant. Ever present, though sometimes hard to see, has been the United States of America.
The story of the ICC is also a story of U.S. foreign policy. It is a story of the relation between the world’s remaining superpower, a key proponent of the post-World War II International Military Tribunals, and today’s direct descendant of those tribunals, the ICC.
The United States was among a handful of countries to vote against the ICC Statute at the 1998 Rome diplomatic conference (above left). (credit) The United States has kept its distance ever since, sometimes quite hostilely so. Its status as a nonparty state deprived it of any vote at the 2010 Kampala Review Conference and other meetings of the ICC Assembly of States Parties. Yet the importance of the United States to the project of international criminal justice cannot be ignored.

Thus it was at the recent 4th International Humanitarian Law Dialogs at Chautauqua, New York, on "Crimes Against Peace - Aggression in the 21st Century": participants repeatedly turned to talk of the United States.
John L. Washburn, Convener of AMICC, the American NGO Coalition for the ICC, said it well:

For a country as powerful as the United States, the limitation of being a nonparty state is that instead of being the 2,000-pound gorilla, you’re the 1,800-pound gorilla in the room.

U.S. heft left its imprint on the package of crime-of-aggression amendments adopted at Kampala.
A definition forged in the years when U.S. officials had absented themselves from ICC discussions survived with little change, save for the agreement that the offense occurs only when a U.N. Charter violation is "manifest" – an adjective deemed more stringent than others considered. Even more important was the effect that concerns voiced by the United States had on amendments setting forth the paths by which the ICC may investigate and prosecute allegations of aggression.
At Chautauqua, 2 succinct critiques underscored this effect:
► "We came out of Kampala with a consensus," said former Nuremberg Prosecutor Benjamin B. Ferencz, a longstanding supporter of making the crime of aggression punishable in international criminal fora. The consensus, in his view: "Everybody can veto everything."
► Washburn again came quickly to the point. "Any country that’s paying attention can avoid jurisdiction over it for aggression," he said, adding, "I think this was probably the outcome that the United States was hoping for but not sure they could get."

(The negotiations leading to the Kampala package, now open for states’ ratification, are aptly detailed in IntLawGrrl Beth Van Schaack's new paper, on which she recently posted.)

For the official U.S. perspective, Dialogs participants turned to one of their own – former international prosecutor Stephen J. Rapp (right), since last September the United States’ Ambassador-at-Large for War Crimes Issues. Rapp, whose arrival at the State Department coincided with the return of the United States to ICC negotiations (prior posts here and here), told the Dialogs participants:

While we had been absent from the ICC, we had not been silent in the faces of crimes that shock the conscience.

Rapp cited as proof U.S. support for the Special Court for Sierra Leone (of which he used to be Chief Prosecutor), for the International Criminal Tribunal for the former Yugoslavia, and for other tribunals.
Why the rapprochement?

The reason for our involvement in the ICC is that if there’s to be an answer at the international level for the atrocities that are being committed, tonight, it will not be in the ad hoc tribunals. It will be either at the national level, where of course it’s always best, or in the ICC.

Rapp continued:

That’s where the butchers will be tried. That’s where Americans need to be supportive, to ensure its success.

(See too this transcript of a post-Kampala press conference featuring Rapp and State Department Legal Adviser Harold Hongju Koh.) Though he deemed U.S. ratification of the ICC treaty "difficult," Rapp said that "at least at this stage we want to make it possible for this institution to succeed."
As IntLawGrrls’ own Valerie Oosterveld explained in her superb year-in-review lecture at the Dialogs (left), since late last year the United States has pursued a policy of positive engagement with the ICC. Although the United States remains a nonparty state, on a case-by-case basis it makes political or diplomatic statements in support of the ICC, considers ICC cooperation requests, shares information with the ICC, and provides the ICC with witness assistance.
Rapp gave to 2 specific examples of this policy in action:
► This spring, Congress enacted the Lord’s Resistance Army Disarmament and Northern Uganda Recovery Act (prior post); and
► Just weeks ago, President Barack Obama criticized Kenya for giving safe passage to Omar al-Bashir, the Sudanese President whom the ICC seeks to arrest on charges of genocide.

► Had Rapp spoken today rather than last week, he might have added yesterday's related news; specifically, the proclamation by Secretary of State Hillary Clinton of a "new American moment" of "global leadership," and the announcement by the United States' U.N. Ambassador, Susan E. Rice, that on September 24 Obama will attend a U.N.-organized summit on Sudan, focusing on Darfur and the impending referendum on South Sudan secession.

And what of the crime-of-aggression amendments adopted at Kampala?

On this, Rapp was rather less fervid.
Rapp described the definition of aggression in proposed Article 8 bis as "one that departed significantly from Nuremberg." He cited an International Herald Tribune op-ed that another Dialogs participant – former international prosecutor Richard J. Goldstone – had written in the runup to Kampala (prior post), and warned that definitional ambiguity could invite confused constructions and could force the ICC on one side or the other of a conflict.
A particular concern, Rapp said, is that worthy military interventions might be subjected to allegations of aggression. Resounding a note that Obama had struck in his Nobel Peace Prize Lecture last year, Rapp spoke of "the debt we owe to people who went into harm’s way and who exercised force." Referring to the Nuremberg trials (right), Rapp added, "The Nazi leaders would never have been in the dock if lives were not lost."
That note stirs many in the world to unease, particularly when it is struck by a country engaged in military intervention, Rapp acknowledged. "That’s a challenge that we in Kampala had to confront," he said, "to deal with the reality in the world while signaling our desire for a world of law, a world where law can eventually displace force."
A number of participants welcomed the United States’ embrace of ICC observer status.
Noting Rapp’s reiteration of the positive-engagement policy in his Chautauqua remarks, Oosterveld, who has served as a member of the Canadian delegation to the ICC Assembly of States Parties, commented,

I felt very heartwarmed about it because I had been there in 2000 when the United States withdrew from the ICC. To hear this from Rapp was a very, very wonderful breakthrough.

Washburn nonetheless expressed concern that as events elsewhere have moved to the fore, on the matter of the ICC "there has been a certain complacency" among U.S. officials since Kampala. He warned against too great a disconnect.

Washburn’s cautionary tale?

Reminder of the dysfunction that impeded relations between the United States and others at the Rome Conference that established the ICC.

(This series on the crime of aggression and the 4th IHL Dialogs, which IntLawGrrls cosponsored, concludes tomorrow with Part 3 (here), a report on the celebratory speech that closed the Dialogs. Part 1 of this series is here.)

On September 4

On this day in ...
... 1995 (15 years ago today), the Fourth World Conference on Women opened in Beijing, China. More than 4,750 delegates, from 181 countries, attended. It would conclude 11 days later with the issuance of the Beijing Declaration and Platform for Action, including these subheadings: Women and Poverty, Education and Training of Women, Women and Health, Violence against Women, Women and Armed Conflict, Women and the Economy, Women in Power and Decision-making, Institutional Mechanism for the Advancement of Women, Human Rights of Women, Women and the Media, Women and the Environment, and The Girl-child. In the course of the conference, Hillary Clinton, then the 1st Lady of the United States (now, of course, the U.S. Secretary of State), gave the "human rights are women's rights" address in this video:




(Prior September 4 posts are here, here, and here.)

On July 11

On this day in ...
... 1995 (15 years ago today), "the one-time student protester" against the Vietnam War, who'd become the United States' leader 2-1/2 years earlier had become the leader of the United States, established full diplomatic relations with Vietnam. President Bill Clinton hearkened to words once used by Abraham Lincoln, President during the Civil War a century earlier, when he said in remarks delivered at a ceremony in Washington:

This moment offers us the opportunity to bind up our own wounds. They have resisted time for too long. We can now move onto common ground.

The move came more than 2 decades after U.S. troops abandoned what was then the capital city of South Vietnam. Today it's known as Ho Chi Minh City, part of the single country of Vietnam depicted above right. In 2000, as depicted in these BBC photos (credit), the President and the 1st Lady -- today, Secretary of State Hillary Clinton -- would make the 1st official visit to Vietnam in a quarter-century.

(Prior July 11 posts are here, here, and here.)

"Our strong support for ratification of CEDAW"

Our commitment to the rule of law is also reflected in our strong support for ratification of the Convention on the Elimination of All Forms of Discrimination Against Women and our signing of the UN Convention on the Rights of Persons With Disabilities — the first new human rights convention of the 21st century.

-- Remarks by Mary McLeod, Legal Adviser, U.S. Mission to the United Nations, at a UN Security Council Debate on Justice and the Rule of Law, 29 June 2010. Full text of remarks here.

Q: What are the seven UN member states that have not ratified CEDAW?
A: Iran, Nauru, Palau, Somalia, Sudan, Tonga, United States of America.

CEDAW was included in the treaty priority list sent by the Obama administration to the Senate in May 2009, and administration statements supporting ratification continue. The opening quote in this post and Secretary of State Hillary Clinton's remarks at the United Nations on 12 March 2010 (text and video here) are but a few examples.
But Senators need to hear from their constituents that ratification is a priority if CEDAW is to move forward. A list of Senators with their contact information is available here; Senate Foreign Relations Committee members are listed here.

Clinton confirms Donoghue ICJ nod

Secretary of State Hillary Clinton has confirmed that Joan E. Donoghue (left), Principal Deputy Legal Adviser at the Department of State, has been nominated to fill the U.S. vacancy on the International Court of Justice.
Since our last report of rumors to this effect, we've discovered the photo at left and a full web bio of Donoghue. Details:
Donoghue was educated in California, earning a double B.A. with honors in Russian Studies and Biology from the University of California, Santa Cruz, in 1978. (In addition to Russian, she's studied Arabic, Spanish, and French.) In 1981, she earned her J.D. from the University of California, Berkeley, School of Law, where she later served as a Visiting Professor of Law. Donoghue's also been an International Affairs Fellow at the Council on Foreign Relations and Adjunct Professor at the Georgetown University Law Center and at the George Washington University School of Law.
Donoghue began as an associate at Covington & Burling in Washington, D.C., then joined the State Department in 1984. She's pursued her legal career there ever since, with the exception of stints at Treasury as Deputy General Counsel (1999-2000), and at Freddie Mac, as Associate General Counsel and then General Counsel and Corporate Secretary (2001-2005).
At State she's served during both Democratic and Republican Administrations, as Clinton's statment stressed. Donoghue's been Deputy Legal Adviser, as well as Assistant Legal Adviser for several offices, including those responsible for economic affairs, African affairs, oceans and environment, and diplomatic law and litigation. She was appointed Principal Deputy Legal Adviser in September 2007. Her duties:

As the senior career attorney in the Office of the Legal Adviser, Ms. Donoghue advises the Secretary and other senior officials on all aspects of the Department of State’s international legal work, serves as the alter ego of the Legal Adviser and manages a bureau of 265 attorneys and support staff.

Donoghue is the recipient of many awards, among them the Distinguished Honor Award (the highest award given by the Secretary of State), the Presidential Rank Award, and the Federal Bar Association's Younger Federal Lawyer of the Year Award. Like many an IntLawGrrl, she's a member of the American Society of International Law.
In her statement, Clinton said of Donoghue:

She is judicious, fair, an extraordinary international legal counsel, and an excellent choice for the Court.

Heartfelt congratulations!