Prosecutorial parlance

Snippets from comments by international prosecutors at the recent International Humanitarian Law Dialogs, subject of posts by cosponsoring IntLawGrrls:

The forced enlistment and use of children in armed conflicts is, I believe, one of the most serious crimes within the jurisdiction of the court.

-- Fatou Bensouda (left), Deputy Prosecutor of the International Criminal Court, on the charges against Thomas Lubanga Dyilo, defendant in the ICC's 1st trial, which, as IntLawGrrls have posted here and here, has been suspended over a dispute respecting disclosure of witness-preparation information.

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

-- Serge Brammertz (right), Chief Prosecutor of the International Criminal Tribunal for the former Yugoslavia, disagreeing with proposals to allow the European Union admission of Serbia even though indictees like former Bosnian Serb General Ratko Mladić remain at large.

My sense is that it is a completely traumatized nation, so it is extremely important that this period be put to rest so that the community can move on.

-- Andrew T. Cayley (left), on the work of the Extraordinary Chambers of the Courts of Cambodia, for which he serves as International Co-Prosecutor.

We are losing experienced staff, staff with institutional memory, and we are finding some of the essential tasks are not being done. This is especially the case with the writing of judgments.

-- Bongani Majola (right), Deputy Prosecutor of the International Criminal Tribunal for Rwanda, echoing a complaint that, as posted, ICTY President Patrick Robinson has made, with respect to the Yugoslavia Tribunal, to the U.N. Security Council.

All of the news coverage did come back in the end to the conflict, to the horrible things that happened, and so I think that was very much a good thing to see.

-- James Johnson (right), Prosecutor at the Special Court for Sierra Leone, on publicity that attended the conflicting testimony that celebrity witnesses Naomi Campbell and Mia Farrow recently gave respecting conflict diamonds that the defendant before the court, former Liberian President Charles Taylor, is alleged to have given Campbell.

Kampala as cause to celebrate

(Part 3 of a 3-part series)

Celebration proved the closing theme of the 4th International Humanitarian Law Dialogs.
The final speaker at the recent upstate New York conference was William A. Schabas, Professor of International Human Rights Law and Director of the Irish Centre for Human Rights at the National University of Ireland-Galway. He asked whether the International Criminal Court Review Conference this summer in Kampala, Uganda (above left; credit), was "a moment of celebration or a disappointment." Schabas then answered his own question:

I think it is a great accomplishment.

The 1998 Rome diplomatic conference, Schabas recalled, had ended with a compromise on the extent of crimes the ICC may hear. Immediately operative were 3 core international offenses: genocide, crimes against humanity, and war crimes. Left for another day was a 4th: the offense of offensive warmaking, called crimes against peace in the Nuremberg era and known today as the crime of aggression. Article 5 of the Rome Statute grants the ICC jurisdiction over aggression, but postpones actual prosecution until adoption of a provision "defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime."
Negotiators worked on both definition and conditions for the next dozen years before the Assembly of States Parties adopted a package of proposed amendments, designed to give the ICC power to adjudicate allegations of aggression, at Kampala.
"At Kampala, it was not obvious even till the final minutes of the conference that it was going to succeed," said Schabas. "These were adopted in the final minutes of the conference, by consensus. If somebody had called for a vote, the votes probably weren’t there." (credit for photo from Schabas' Kampala blog, depicting him, center, "discussing the amendments to article 8 with the Bulgarian delegation")
The central achievement was the definition of aggression in proposed Article 8 bis. "It will not be immune to judicial interpretation," Schabas said, and predicted "a liberal approach to its application."
Strong supporters of criminal punishment for aggression have expressed concerns that the Kampala package affords too many ways to avoid implication in that crime. (For details on the intricacies of these amendments, see our crime of aggression series.)
Agression, Schabas allowed, "may never be prosecuted, which may not necessarily be a bad thing. It simply confirms a deterrent effect."
Schabas sought to allay concerns about obstacles to entry into force, including a requirement of ratification by 30 states and further review in 2017. "I don’t think they’re actually going to be very difficult – not anywhere near as difficult as the obstacles appeared in 1998, of getting the 60 ratifications." (This latter milepost was reached in April 2002, so that the Rome Statute entered into force fewer than 4 years after its adoption. Today 113 of the United Nations’ 192 member states belong to the ICC. Nonparties include China, India, Russia, Turkey, and, as discussed in yesterday’s post, the United States.)

Nor, in Schabas' opinion, does it seem likely that political leaders of states parties will exercise the possibility of opting out of exposure to ICC pursuit should they be accused of aggression.
Endorsing a prediction that, as posted, ICC Judge Hans-Peter Kaul made earlier in the Dialogs, Schabas said:

I think that within 6 years, 4 months, and a few days we will have a court with jurisdiction over aggression, capable of prosecuting the crime.

This is an important step for international criminal justice, Schabas maintained, along a trail blazed by Robert H. Jackson, Chief U.S. Prosecutor at the Trial of the Major War Criminals held in Nuremberg after the Allies defeated Nazi Germany:

Jackson saw the link between war and other crimes, that war is at the center of it, that war is responsible for it. To the extent that the adoption of that amendment revives this, that is good.

On the trail that Jackson blazed lies the question of state responsibility. According to Schabas, it’s a question that was entertained in the proposal of U.S. President George H.W. Bush and British Prime Minister Margaret Thatcher, following Iraq’s invasion of Kuwait, to set up a tribunal competent to hear charges of aggression. But that proposal never was implemented, and the question of state responsibility was not addressed by the international criminal fora that were set up after Cold War.
Why might some be less eager today to prosecutor perpetrators of aggression?

Schabas proffered 2 possible answers:
► 1st: "We have become a be more militarized than we should be." As posted yesterday, in an earlier Dialogs speech Stephen J. Rapp, U.S. Ambassador-at-Large for War Crimes Issues, had stressed, as a reason for caution in implementing the current Kampala aggression amendments as they now stand, that military intervention is at times necessary. Schabas replied:

Sometimes, yes. But nor would I exaggerate the importance of that, because war brings atrocities, inevitably.

►2d: Some civil society organizations seemed not to appreciate the significance of making aggression a crime punishable by the ICC. Schabas recalled: "I saw a banner that said, ‘Civil Society Welcomes Stocktaking,’" another aspect of the Kampala Conference. "Civil society should have welcomed the amendment on aggression."

Echoing Judge Kaul’s description of atrocities as the "excrement" of war, Schabas said of the crime-of-aggression package: "That’s the big piece. It shows that," despite some growing pains at the ICC, "we have a court that is healthy and productive and moving forward."
　
(Part 1 of this 3-part series on the 4th IHL Dialogs is here; Part 2 is 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.)

ICC prospects post-Kampala

(Part 1 of a 3-part series)

International Criminal Court Judge Hans-Peter Kaul succinctly summed up discussion at the 4th International Humanitarian Law Dialogs:

There will soon be an Article 8 bis to the Rome Statute.

The just-concluded IHL Dialogs, cosponsors of which include IntLawGrrls and the American Society of International Law, feature prosecutors from most of the international criminal tribunals convened in the last 60 years. Joined at the Chautauqua Institution, a lovely upstate New York setting, by members of the academic, practitioner, advocacy, and diplomatic communities, these prosecutors spend a few days discussing hot topics in international criminal law.
The hottest ICL topic this year is the crime of aggression.
As readers of our series on the subject well know, this summer the ICC Assembly of States Parties ended a 2-week Review Conference in Kampala, Uganda, with the consensus approval of a package of proposed amendments to the ICC Statute, which had been adopted at Rome, Italy, in 1998, and which entered into force on July 1, 2002. A centerpiece of the Kampala package is proposed Article 8 bis, to which Judge Kaul referred. Article 8 bis defines the criminal prohibition; other proposed articles chart the paths by which the ICC may investigate and prosecute uses of force alleged to fall within that prohibition.
Post-Kampala questions are many:
► What do the proposed texts actually mean?
► How will they work?
► Which, if any, states will ratify the amendments?
► When, if ever, will the amendments become the law of the ICC?
The IHL Dialogs left some of these questions open. The meaning and working of the amendments, for example, inevitably will be subject to judicial interpretation and pronouncement. But a clearer answer seemed to emerge on the question whether these amendments will enter into force. In a word: "Yes."
Kaul predicted that Germany (which features the ICC on its diplomatic website) would move rapidly to ratify the package. Others foresaw that other countries would follow suit.
Kaul, who was born in Germany during World War II, lamented “the downfall of the Germans to the Nazis.” Nazi invasions in 1939, he said, constituted “a textbook example of a war of aggression.”
In an address available in full here, he lauded the postwar precedent set when an International Military Tribunal comprising judges and prosecutors from 4 Allied countries put scores of Nazis on trial at Nuremberg, not only for war crimes and crimes against humanity, but also for “crimes against peace,” the forerunner to the offense now known as aggression. Kaul, the ICC's current 2d Vice President, the leader in 1998 of the German diplomatic delegation at Rome, and the author in 2005 of an American Journal of International Law article on the ICC, said:

Today, I am myself among the many Germans who believe: the most important point of Nuremberg was the conclusion that aggressive war, which had been a national right throughout history, should henceforth be punished as an international crime.

(credit for photo of a German World War I memorial declaring “Nie Wieder Krieg"– “Never Again War”; the same slogan appeared on a post-World War II photo Kaul displayed during his talk at Chautauqua)
That’s not to say that every participant at the IHL Dialogs – which ended with a Chautauqua Declaration applauding the adoption of a definition and the “determination to press for appropriate mechanisms for its enforcement” – agreed with everything agreed upon at Kampala.
► Former Nuremberg Prosecutor Benjamin B. Ferencz, long a vocal proponent of holding individuals criminally liable for the crime of aggression, asked of the Kampala package:

Is it eyewash or progress? It’s both.

► William R. Pace, Convenor of the Coalition for the International Criminal Court, noted both the complexity of the definition and the options given states to avoid having the ICC pass judgment on the legality of wars waged at their behest.
► Kaul, meanwhile, stated that as a Judge of the International Criminal Court, “it is not my role to delve into the intricacies or maybe weaknesses of the proposal adopted.”
Kaul did venture to take issue with an oft-stated concern, that making the crime of aggression ban fully operational will detract from pursuit of atrocities.
Former Nuremberg Prosecutor H.W. William Caming had observed during the Dialogs that “the planning, participating and waging of wars of aggression” was branded by Chief U.S. Prosecutor Robert H. Jackson as “the ultimate crime from which the crimes against humanity and war crimes extend.”
Kaul echoed Jackson’s view, arguing that prosecution of aggression would enhance prosecution of atrocities:

War crimes, they are the excrement of war.

Declaring that the Kampala package had “energized” proponents of international criminal justice, Kaul ended on this note:

Leaders from all over the world, including Washington, are called upon to reflect ... on which policy they may henceforth follow.

(This 3-part series on the crime of aggression and the 4th IHL Dialogs continues tomorrow with Part 2, on the policy from Washington. Part 3 celebrates the Kampala result)

4th Chautauqua Declaration

As a cosponsor of the 4th International Humanitarian Law Dialogs, just concluded at the Chautauqua Institution in upstate New York, IntLawGrrls is proud to reproduce in full the 4th Chautauqua Declaration signed yesterday by a host of prosecutors from present and past international criminal courts and tribunals, depicted above. They are: top row left to right, Andrew T. Cayley of the Extraordinary Chambers in the Courts of Cambodia, Serge Brammertz of the International Criminal Tribunal for the former Yugoslavia, Fatou Bensouda of the International Criminal Court, James Johnson of the Special Court for Sierra Leone, and Bongani Majola of the International Criminal Tribunal for Rwanda; and bottom row left to right, Robert Petit of the Extraordinary Chambers in the Courts of Cambodia, David M. Crane of the Special Court for Sierra Leone, Benjamin B. Ferencz and H.W. William Caming of the International Military Tribunals at Nuremberg, and Richard J. Goldstone of the International Criminal Tribunals for Rwanda and the former Yugoslavia. (Seated next to Goldstone is Stephen J. Rapp, a former prosecutor at the Special Court for Sierra Leone. Now the U.S. Ambassador for War Crimes Issues, he did not sign.)
Here's the Declaration:

In the spirit of humanity and peace the assembled current and former international prosecutors and their representatives here at the Chautauqua Institution ...
Recognizing the continuing need for justice and the rule of law as the foundation to international security, and cognizant of the legacy of all those who preceded us at Nuremberg and elsewhere:
Recognize the tenth anniversary of the Robert H. Jackson Center and its important mandate to preserve, promote, and advance the legacy of Justice Robert Jackson through education, exhibits, and events, which emphasize the current relevance of Jackson’s ideas on individual freedom and justice;
Honor the life of our colleague and friend Whitney R. Harris, a prosecutor of the International Military Tribunal at Nuremberg who passed away this year; commend his drive and force in ensuring that the spirit of Nuremberg continued; and note the awarding posthumously to Whitney Harris the first annual Joshua Heintz Humanitarian Award for distinguished service to mankind;
Applaud the efforts of the states parties to the Rome Statute, and other delegations in Kampala this year in their willingness to openly take stock in the progress of international criminal law in general and the concrete recommendations to ensure justice for victims of international crimes; and for reaching consensus on a definition of the crime of aggression and for their determination to press for appropriate mechanisms for its enforcement and prosecution;
Noting that after thirty years of impunity the first judgment has been rendered in respect of the crimes of the Khmer Rouge in Cambodia;
Reflecting upon the fifteenth anniversary of the genocide at Srebrenica and the continuing need for the accountability of those responsible;
Expressing concern at the continuing plight of civilians caught up in armed conflict and particularly for those crimes committed against women and children;
Now do call upon the international community to:
Keep the spirit of the Nuremberg Principles alive by:
Ensuring the enforcement of the laws of armed conflict and in particular those relating to the protection of civilians;
Calling upon parties in armed conflict to respect international law applicable to the rights and protection of women and girls;
Ensuring that gender crimes are investigated and prosecuted appropriately;
States refraining from the use or threat of armed force and settling their disputes by peaceful means and in accordance with the United Nations Charter and international law;
Supporting and adequately funding the tribunals and courts in their work to maintain the rule of law at both the international and domestic level;
Implementing their obligations under international law in the sharing of information, investigating, prosecuting or transferring to an appropriate judicial body those who violate international criminal law to ensure accountability of all persons, including sitting heads of state;
Considering the adoption of a Convention on the Suppression and Punishment of Crimes Against Humanity; ...

Caroline postcard

As intlawyers well know, a foundation of contemporary rules regarding the use of force is the Caroline affair.

As posted, U.S.-Britain negotiations more than 170 years ago articulated a concept of "anticipatory self-defense," subject to conditions of necessity and proportionality.

Perhaps less well known is the underlying incident.

Spurring the diplomatic exchange of notes was 1837 unrest in Canada, then a British colony. Anti-British rebels encamped at Navy Island in the middle of the Niagara River, which marks the U.S.-Canada border. Rebel night-raids of Britain's Canadian forts prompted Britain to seize the Caroline, a rebel vessel. They torched it and set it loose; it broke up in the rock-strewn rapids. Eventually, what was left of the Caroline went over the Niagara Falls.

Hence this post-card: photos of those rapids and falls made on a lovely summer Sunday, en route to the 4th Annual International Humanitarian Law Dialogs at Chautauqua, New York, about which more to come.

Go On! IntLawGrrls @ 4th IHL Dialogs

(Go On! is an occasional item on symposia and other events of interest)

Delighted to announce that IntLawGrrls again will cosponsor the International Humanitarian Law Dialogs at the Chautauqua Institution in upstate New York, not far from another cosponsor, the Robert H. Jackson Center.

The theme of this year's 4th annual Dialogs, to be held August 29 to 31, is timely given the outcome of the International Criminal Court Review Conference in Uganda. IntLawGrrls wrote a Kampala series of posts about that conference, as well as a crime of aggression series about a key conference outcome, the adoption of provisions designed to make the crime punishable by the ICC.

The Dialogs' theme, in short, is: Crimes Against Peace - Aggression in the 21st Century.

Exploring it will be prosecutors from international criminal fora, plus many international criminal law scholars. (Prior IntLawGrrls posts.) Last year was a great opportunity to meet such colleagues at Chautauqua, a picturesque lakefront venue. It was also the source of 2 IntLawGrrls guest contributions: a trilogy of posts by Judge Patricia M. Wald (here, here, and here), plus a post by Judge Marilyn J. Kaman (here).

Many present and former international prosecutors are expected to take part this year. In addition to those mentioned as specific speakers in the program that follows, prosecutors set to attend include the following from the:

► International Criminal Court, Deputy Prosecutor Fatou Bensouda (left);

► International Military Tribunal at Nuremberg, former prosecutor H.W. William Caming;

► Special Court for Sierra Leone, Chief Prosecutor Brenda Hollis (below right), recently in the news for calling a supermodel to testify at the ongoing Hague trial about diamonds received from defendant Charles Taylor, former President of Liberia, and former Chief Prosecutor David M. Crane, the founder of the Dialogs who's now a Professor of Law at Syracuse University, another cosponsor, and the founder of the Dialogs;

► Extraordinary Chambers in the Courts of Cambodia: Co-Prosecutor Andrew T. Cayley and former Co-Prosecutor Robert Petit; and
► International Criminal Tribunals for Rwanda and for the former Yugoslavia, former Chief Prosecutor Richard J. Goldstone.

Sessions on the current program include:

Sunday, August 29

► Showing of War Don Don, an award-winning HBO Documentary film about a Special Court trial in Sierra Leone, moderated by filmmaker Rebecca Richman Cohen (left).

Monday, August 29

► Keynote speech by Benjamin B. Ferencz, formerly a prosecutor at the International Military Tribunal at Nuremberg and a lifelong activist on behalf of international criminal justice, introduced by Professor Michael P. Scharf of Case Western Reserve University School of Law, another cosponsor.

► Updates from all the current prosecutors, moderated by Professor John Q. Barrett, St. John's University School of Law.

► Keynote speech by Judge Hans-Peter Kaul, 2d Vice President of the International Criminal Court, introduced by Leila Nadya Sadat, an IntLawGrrl guest/alumna who contributed to our Kampala series, and Director of the Whitney R. Harris Institute at the Washington University School of Law, another Dialogs cosponsor.

► Dialog on the crime of aggression, with Ferencz, John Washburn, Convener of the American Non-Governmental Organizations Coalition for the International Criminal Court, and William R. Pace, Convenor of the Coalition for an International Criminal Court, moderated by Professor David J. Scheffer of Northwestern University School of Law, formerly U.S. Ambassador-at-Large for War Crimes.
► Keynote address by Stephen J. Rapp, currently the U.S. Ambassador-at-Large for War Crimes, and formerly the Chief Prosecutor at the Special Court for Sierra Leone, introduced by David Sullivan of Enough Project, another cosponsoring organization.

Tuesday, August 31, 2010

► Year in Review -- International Criminal Law, by IntLawGrrl Valerie Oosterveld (left), a Professor at the Faculty of Law, University of Western Ontario, and frequent contributor to our Kampala series.

► Keynote speech by Professor William Schabas, Irish Centre for Human Rights, National University of Ireland, Galway.

► Issuance of the 4th Chautauqua Declaration & Conclusion of Dialogs, hosted by IntLawGrrl Diane Marie Amann (yours truly, also a Kampala series contributor), Professor of Law at the University of California, Davis, wearing my hat as a Vice President of the American Society of International Law, another cosponsor of the IHL Dialogs.

For more information, contact Carol Drake at cdrake@roberthjackson.org.

Guest Blogger: Patricia M. Wald

It's IntLawGrrls' immense honor this week to welcome Patricia M. Wald (left) as a guest blogger.
Pat, about whom we've frequently posted, served from 1999-2001 as a judge on the International Criminal Tribunal for the former Yugoslavia, succeeding Gabrielle Kirk McDonald. Before joining ICTY Pat had served from 1986-1991 as Chief Judge of the U.S. Court of Appeals for the District of Columbia Circuit, part of a judicial tenure there that spanned 20 years. She was the court's 1st woman chief.
Service on an ad hoc tribunal was but one of many positions touching on international law and foreign policy. Last year she co-chaired the American Society of International Law's International Criminal Court Task Force, which recommended renewed U.S. engagement with the ICC. Among many other things, Pat also: served on the Open Society Institute's Justice Initiative Board; was a member from 2004 to 2005 of the President’s Commission on the Intelligence Capabilities of the U.S. Regarding Weapons of Mass Destruction; and served from 1994 to 1999 on the Executive Board of CEELI, the American Bar Association's Central European and Eurasian Law Initiative.
Before becoming a judge, she'd been, again among many other things: the Assistant Attorney General for Legislative Affairs at the U.S. Department of Justice; co-director of the Ford Foundation Drug Abuse Research Project; and an attorney with the Mental Health Law Project, the Center for Law and Social Policy, the Neighborhood Legal Services Program, and DOJ's Office of Criminal Justice.
Having earned her J.D. from Yale and her B.A. from the Connecticut College for Women, Pat clerked for Judge Jerome Frank, U.S. Court of Appeals for the Second Circuit. She's published many articles on international criminal justice, as well as five books on criminal justice, children's rights, poverty, and women.
As IntLawGrrls' guest blogger, Pat contributes 3 posts excerpted from her recent presentation at the 3d Annual International Humanitarian Law Dialogs in Chautauqua, New York, an event for which, as we've posted, IntLawGrrls was a proud cosponsor. (In this she joins guest/alumna Judge Marilyn J. Kaman.) In her 1st guest post, below, Pat gives recognition to women leaders in international criminal law and explains why she believes that women judges make a difference. Tomorrow's 2d post will discuss the attention due in tribunals to the needs of women and children; Wednesday's 3d post, how crimes against humanity doctrine might be used to protect women from state-tolerated regimes of oppression, in peacetime as well as in the context of armed conflict. Her full presentation will be published by ASIL, as have been the Proceedings of the 1st and 2d Dialogs.
In choosing a transnational foremother, Pat writes of

a wonderful German/Jewish woman, Gisela Konopka, who fought in prewar Germany for children's rights, was put in a concentration camp, managed to get out and work her way through occupied Europe to America, where she became the champion of children, especially girls, who got in trouble with the law.

Konopka (right), who appeared as "a prime expert witness" in a class action that Pat litigated against the Texas Youth Authority in the early 1970s, was from 1947 to 1978 a professor of social work at the University of Minnesota, where the Konopka Institute on adolescent health and medicine was named in her honor. Her publications are listed here. Konopka died at age 93 in 2003.

Pat concludes:

She inspired me as to what an older woman can do right up to the point of departure to help those behind.

Konopka joins other foremothers in the list just below our "visiting from..." map at right.

Heartfelt welcome!

Guest Blogger: Marilyn J. Kaman

We at IntLawGrrls are honored to welcome the Honorable Marilyn J. Kaman (right), Judge of the Hennepin County District Court, Minneapolis, Minnesota. As today's guest blogger, she contributes a post drawn from her recent presentation at the 3d Annual International Humanitarian Law Dialogs in Chautauqua, New York, an event for which, as we've posted, IntLawGrrls was a proud cosponsor.

Marilyn holds a bachelor's degree cum laude from Vanderbilt University, a certificate of proficiency in Russian from Leningrad State University, and a master's degree in teaching from the University of Chicago. After earning her J.D. cum laude from the University of Wisconsin, where she served on the Wisconsin Law Review, she practiced at the firm of Dorsey & Whitney, taught as an adjunct at William Mitchell College of Law in St. Paul, and was an Assistant Hennepin County Public Defender. A judge in that county since 1990, serving in many judicial divisions, she's been Presiding Judge of the Probate/Mental Health Court since 2007. Marilyn's also sat on appeals panels by appointment of the Minnesota Supreme Court.

Her awards are numerous; for example, she was a co-recipient of the Minnesota Trial Judge of the Year-2004, given by the Minnesota Board of Trial Advocates, and the 1995 Marvelous Minnesota Woman Award by then-Governor Arne Carlson.

She's also active in numerous professional organizations, among them: Publications Officer for the Section of International Law of the American Bar Association and past C0-Chair of 2 ABA committees, on United Nations International Institutions and on International Criminal Law.

Those last positions point to the topic of Marilyn's post: her experience while on leave from 2002-2003, having been chosen by the United Nations to serve as an international judge in Kosovo, then a province of Serbia under U.N. administration. As she discusses in her guest post below, her duties included hearing cases alleging war crimes, organized crime, ethnically motivated disputes, and trafficking of human beings. (Her complete presentation is forthcoming in ASIL-published Proceedings, as with those of the 1st Dialogs, available here.)

Marilyn dedicates her post to Dr. Alison Des Forges (left), the human rights investigator who died in February, at age 66, in a plane crash outside Buffalo, New York. (photo credit) Des Forges, as posted, was the subject of a moving tribute by American Society of International Law Executive Director Elizabeth Andersen at this year's IHL Dialogs. Our own post soon after Des Forges' passing detailed the essential role that Des Forges played in Prosecutor v. Akayesu (1998), in her capacity as an expert witness and historian who worked as a Senior Advisor for the Africa Division of Human Rights Watch. In addition to her contribution to that 1st trial before the International Criminal Tribunal for Rwanda, we noted,

Des Forges also gave expert testimony in national courts, the United Nations, the Organization of African Unity, and the national legislatures of Belgium, France, and the United States. She published Leave None to Tell the Story: Genocide in Rwanda the year after the Akayesu judgment, and also won a MacArthur Foundation Fellowship for her work as, to use MacArthur words, a 'Human Rights Leader.'

Today Des Forges joins other transnational foremothers in IntLawGrrls' honor roll just below our "visiting from ..." map at right.

Heartfelt welcome!

The 3d IHL Dialogs

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

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

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

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

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

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

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

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

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

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

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

The Third Chautauqua Declaration

(What follows is the Third Chautauqua Declaration, issued by international prosecutors on September 1, 2009, at the close of the Third Annual International Humanitarian Law Dialogs, entitled “Honoring Women in International Criminal Law: From Nuremberg to the ICC,” of which IntLawGrrls and the American Society of International Law, among others, were cosponsors, as I've detailed in the post above)

In the spirit of humanity and peace the assembled international prosecutors and their representatives here at the Chautauqua Institution ...
Recognizing the continuing need for justice and the rule of law as a cornerstone to international society, and cognizant of the legacy of all those who preceded us at Nuremberg and elsewhere;
Taking note of the 60th anniversary of the Geneva Conventions in 1949 and its principles that maintain the rule of law on the battlefield;
Honor the life of our colleague and friend Henry T. King Jr., a prosecutor of the International Military Tribunal at Nuremberg who passed away in May of this year;
Commend his drive and force in ensuring that the spirit of Nuremberg continues;
Recognizing the role of women in the history and development of modern international criminal law;
Honor their sacrifice, their leadership and drive over the past fifty years in forging an international system of justice;
Commend the women who labor every day around the world in relative obscurity upholding the spirit of Nuremberg and the rule of law;
Taking note of the recognition in international criminal law of sexual and gender violence as an instrument of war, which can constitute war crimes, crimes against humanity and genocide;
Honor the life of Alison DeForges and recognize her life's work in seeking justice for the victims of the Rwanda Genocide;
Now do solemnly declare and call upon the international community to:
Keep the spirit of the Nuremberg Principles alive by:
Ensuring that the laws of armed conflict remain a cornerstone of maintaining protections of combatants, civilians and non-combatants alike;
Paying particular attention to the plight of women and children found in places of unrest and conflict to ensure that they are especially cared for and kept out of the conflict;
Ensuring that girls and women in conflict areas do not fall victims to rape and other forms of sexual violence;
Investigating, prosecuting or handing over to an appropriate judicial body those who violate international criminal law to ensure accountability of all persons including sitting heads of state;
Supporting the various tribunals and courts in their work to maintain the rule of law at both the international and domestic level;
Working with regional political bodies to ensure that the rule of law is maintained and that those who are found to be in violation of international law be handed over for a
fair and open trial to the international tribunal or court that seeks their person;

Signed in mutual witness:

Norman Farrell, International Tribunal for the former Yugoslavia
Henry King (in absentia/memoriam), International Military Tribunal Nuremberg
David M. Crane, Special Court for Sierra Leone
Fatou Bensouda, International Criminal Court
H.W. William Caming, International Military Tribunal Nuremberg
Joseph Kamara, Special Court for Sierra Leone
Hassan B. Jallow, International Criminal Tribunal for Rwanda (signed for by Alphonse Van)

Go On! IntLawGrrls cosponsors 3d IHL Dialogs, on "Women in International Criminal Law"

(Go On! is an occasional item on symposia of interest) Delighted to announce that for the 1st time ever, IntLawGrrls is cosponsoring an international law conference!
It's the 3d Annual International Humanitarian Law Dialogs, to be held August 31-September 1 at the Chautauqua Institution in Chautauqua, a community near Buffalo in upstate New York.
As posted here and here, last year's dialogs marked the 60th anniversary of the Convention Against Genocide; the 1st year, the 100th anniversary of the 1907 Hague Rules on the laws of war. This year's theme -- "Honoring Women in International Criminal Law From Nuremberg to the ICC" -- is ready-made for IntLawGrrls the world over. It's no surprise, then, that a number of 'Grrls were enlisted as the event was put together by our colleague David M. Crane, formerly Prosecutor at the Special Court for Sierra Leone, now law professor at Syracuse University College of Law.
Our thanks to David, who's also the founder Impunity Watch blog (one of the "connections" in our righthand column), both for the invitation and for welcoming IntLawGrrls blog as a cosponsor. Also cosponsoring are the Robert H. Jackson Center in nearby Jamestown, N.Y., which features the work of the Supreme Court Justice who served as Chief U.S. Prosecutor at the Nuremberg trial of the Major War Criminals, Impunity Watch/Syracuse Law, the American Society of International Law, the Enough Project of the Center for American Progress, the Whitney R. Harris World Law Institute at Washington University School of Law, and the Frederick K. Cox International Law Center at Case Western Reserve University School of Law.
Events on the program include:
Monday, August 31:
► Opening remarks, including a moment of silence for Dr. Alison Des Forges, the Human Rights Watch researcher who died in a plane crash this past February, as we then posted.
►Keynote lecture entitled "Katherine Fite, A Prosecutor at Nuremberg," by John Q. Barrett, Professor of Law at St. John's University School of Law, New York, and Elizabeth S. Lenna Fellow at the Robert H. Jackson Center in Jamestown, New York. As Barrett will detail, Katherine Boardman Fite, who'd received her law degree from Yale in 1930, served as Jackson's assistant.
► Keynote lecture entitled "Women at Nuremberg," by me, IntLawGrrl Diane Marie Amann, Professor of Law and Director of the California International Law Center at King Hall, University of California, Davis, School of Law, and an ASIL Vice President. The presentation will be based on my IntLawGrrls series of the same name.
► An update from the current prosecutors, to be moderated by Leila Nadya Sadat, Henry H. Oberschelp Professor of Law and Director of the Harris Institute at Washington University School of Law, St. Louis. That institute's namesake, former Nuremberg prosecutor Whitney R. Harris, also is expected to attend these 3d annual dialogs.
► Luncheon speech by Gayle E. Smith (left), a cofounder of the Enough Project who's now a Special Assistant to President Barack Obama. Introducing her will be Colin Thomas-Jensen, a policy advisor at the Enough Project.
► Roundtable discussion with the prosecutors on "Gender Crimes at the International Level," moderated by IntLawGrrl Diane Orentlicher, Professor of Law at American University's Washington College of the Law.
► A briefing by Sadat on the Crimes Against Humanity Initiative about which IntLawGrrls has posted here and here.
► Dinner speech by the Honorable Patricia M. Wald (right), formerly Chief Judge of the U.S. Court of Appeals for the District of Columbia Circuit and, subsequently, a Judge of the International Criminal Tribunal for the former Yugoslavia. Introducing Judge Wald will be IntLawGrrl Lucy Reed, ASIL President, Freshfields partner, and a member of the Eritrea-Ethiopia Claims Commission, about which she's posted.
► Showing of NBC's The Wanted, with members of the cast.
Tuesday, September 1:
► "International Criminal Law Year in Review," presented by Michael P. Scharf, Professor of Law and Director of the Cox Center.
► "Reflections on Women in International Criminal Law," by the Honorable Marilyn J. Kaman (below right), Presiding Judge, Probate/Mental Health Court, Hennepin County, Minnesota, and from 2002-2003 a U.N.-appointed judge in Kosovo, where she presided over cases involving war crimes, organized crime, ethnically motivated disputes, and human trafficking.
► Roundtable with 3 women who've worked as international trial attorneys: Christine H. Chung, partner at Quinn Emmanuel and former senior trial attorney, Office of the Prosecutor, International Criminal Court (prior post); Lesley Taylor, Special Court for Sierra Leone; and Renifa Madenga, International Criminal Tribunal for Rwanda. Moderated by Dr. Kelly Askin, IntLawGrrl and Senior Legal Officer, International Justice, Open Society Justice Initiative.
► Lunch speech by Siri Frigaard (above left), Chief Public Prosecutor, Norwegian National Authority for Prosecution of Organised and Other Serious Crime. Former ICC attorney Chung will introduce her.
► Elizabeth Andersen, ASIL Executive Director, will lead the signing of the 3d Chautauqua Declaration.
Prosecutors expected to attend, besides those already named, include: Fatou Bensouda (below left), ICC Deputy Prosecutor (prior posts here and here); William Caming, former trial counsel at Nuremberg; Desmond DeSilva, former Prosecutor at the Special Court for Sierra Leone; Richard Goldstone, formerly the ICTY-ICTR Chief Prosecutor and a Justice on the Constitutional Court of South Africa, and currently leading a U.N. inquiry into the 2008-2009 conflict in the Gaza Strip; Hassan Jallow, International Criminal Tribunal for Rwanda; Robert Petit, Co-Prosecutor of the Extraordinary Chambers in the Courts of Cambodia; and Stephen Rapp, Prosecutor of the Special Court for Sierra Leone since 2006, and now, as we've posted, President Barack Obama's nominee to become the U.S. Ambassador at Large for War Crimes Issues.
For details, contact Carol Drake at cdrake@roberthjackson.org.