Africa-based international law projects

(Delighted to welcome back alumna Bonita Meyersfeld, who contributes a 2-part series of guest posts on international law in Africa. Part 2 is below; Part 1, published yesterday, is here.)

Having described the overall work of the Southern and Eastern African Regional Centre for Women’s Law at the University of Zimbabwe, I continue in this post with descriptions of research in progress:
► Makanatsa Makonese (left), a Doctor of Philosophy Candidate, is examining Zimbabwe’s Post-Independence Land Reform Laws and Policies and Their Impact on Women’s Right to Agricultural Land: A Critical Analysis of the Fast Track Land Reform Programme from 2000 and Beyond.
This research seeks to assess the availability or otherwise of a legal, policy, and institutional framework governing the Fast Track Land Reform Programme in Zimbabwe. The focus is on women and their right to access, own, and control agricultural land. The effect over the years of the country’s property laws in general, and land laws in particular, will be critically examined. The goal is to establish whether there have been any efforts during the implementation of the fast track land reform programme to break away -- away from a system that subjugates women in property ownership and toward one that recognises women as equal partners in national economic, social, and political development and transformation.
A primary focus of the research is the recognition that the fast track land reform programme was and is not just about parcelling out land but also about: creating social classes; developing jurisprudence around land ownership and reform in Zimbabwe; and setting up centres and sources of power that are critical in shaping the country in various ways. The position of women in the matrix and the country’s level of compliance with international human rights standards and best practices therefore have to be examined.
The nuance of the work is its engagement in a rights analysis in a context of rights violations; namely, the land grabs and concomitant displacement of landowners.
► Research by Renifa Madenga (left), also a Doctor of Philosophy Candidate, is entitled Using Women’s Voices/Experiences To Interrogate The Efficacy Of The International Criminal Justice System on Rape: The case of Rwanda 1994 Genocide. (credit for photo (c) Robert H. Jackson Center)
Her study explores the lived reality and experience of rape survivors of the 1994 Rwandan genocide. It is sited in the web of fears, needs, relationships, and anxieties that affect survivors of rapes committed during the Rwandan genocide, as well as their interactions with the international criminal justice system at the International Criminal Tribunal for Rwanda.
Using the voices and experiences of survivors and witnesses, the study interrogates the efficacy of the justice system. Its major questions: Does the system acknowledge and condemn the egregious abuses suffered by victim survivor witnesses? Does it recognize and addresse the needs, fears, and aspirations of those survivor witnesses?
The researcher, Madenga, works as an Appeals Counsel in the ICTR Office of the Prosecutor, and chairs that office's 3-year-old Sexual Violence Committee.
► Annette Mudola Mbogoh, another Doctor of Philosophy Candidate, is researching The 2007 Post-Election Violence As A Spring Board For Peace, Reconciliation And Reparation: A Case For The Participation And Involvement Of Women In Mombasa, Kenya.
The study investigates the participation of women in Mombasa in peace, reconciliation, and reparation processes through Kenya's Truth, Justice and Reconciliation Commission. Women suffered gross human rights violations in recurrent electoral violence in Mombasa -- in 1992, in 1997, and in the unprecedented 2007 general elections. (Prior IntLawGrrls posts available here.) Women have been internally displaced, lost their loved ones, their property, and their businesses. They are survivors of physical violence and rape. However, their voices, needs, and concerns have been sidelined in the current transitional justice process in Kenya (flag at right). The Truth, Justice and Reconciliation Commission presents an opportunity for women’s voices, injustices, and stories to be heard, investigated, documented, and redressed in the ensuing reparation programmes.
Against this backdrop, this research investigates the level of participation of women in the unfolding truth commission process, as well as the factors hindering women’s active involvement. It seeks both to document injustices committed against women by virtue of their sex and to identify priority concerns and preferred reparations on the part of survivors. It interrogates the question of truth-telling versus justice. The study highlights the importance of reparations to achieve true reconciliation and the extent to which women’s multiple identities influences their choice between collective and individual reparations. The study explores the politics of representation amongst women in a very polarized and ethnicized community. It furthers the debate on the right to truth, which has been expounded by the institutions of the inter-American human rights system. These arguments are hinged on the new Constitution of Kenya, which enshrines women’s right to equality and representation in legislative bodies through reservation of special seats. Finally, the study recommends implementation of a gender perspective in peace and reconciliation efforts, as is espoused in international instruments such as U.N. Security Council Resolutions 1325 and 1820.
► Under examination by Catherine Makoni is The Impact of the Political Crisis in Zimbabwe on Women’s Right to Protection of the Law: An Investigation into the Handling of Cases of Politically Motivated Rape from 2000-2009.
Makoni's research investigates how cases of politically motivated rape have been dealt with, if at all, within the justice system of Zimbabwe (flag at right). The objective is to interrogate the duty of the state to protect women, and therefore its role to provide sufficient and meaningful redress. The research undertakes an empirical assessment of what assistance victim survivors of rape have received from both state and nonstate actors -- including officials of their own political party, who have undertaken to protect party members from acts of violence and intimidation by the ruling party. The study further seeks to influence responses by all these actors.
Rape was used as a tool for political coercion during the election periods in 2000, 2002, 2005 and 2008. The political crisis had an impact on how cases of politically motivated rape were dealt with at multiple levels. In brief, the State failed in its duty to protect women. The perceived inviolability of the perpetrators, as a result of their perceived political affiliation, determines whether allegations of rape are reported, investigated, prosecuted, and adjudicated. The law as presently formulated is not sufficient to cover the total scope of rape as it occurs when used as a tool for political coercion.
► Rosalie Kumbirai Katsande, a Lecturer at the Centre, is Exploring the Potential of Laws and Procedures Governing Business Entities in Facilitating Women’s Entrepreneurial Development in the Horticultural Sector of Zimbabwe.
Inspiring this research is a passage in Peasants, Traders and Wives: Shona Women in the History of Zimbawe 1870 – 1939 (1996), in which Dr. Elizabeth Schmidt, Professor of History at Loyola University Maryland, writes:

When the Jesuit father A Hartmann visited the Shona Chief Chipanga in about 1891, he asked the chief how numerous the people where including women and children, the chief reportedly answered, 'women are not counted'. He then took a handful of dust from the ground and said, 'that is the woman. Hartman concluded that women were regarded as almost nonexistent.

In her own research project, Katsande explores women entrepreneurs in the horticulture sector of Mashonaland East Province of Zimbabwe. Her work interrogates the appropriateness for the development of business regimes by government authorities for women in rural areas. In an effort to determine the appropriateness of current such regimes, the study traces the economic history of Zimbabwe and shows how women’s economic initiatives have been marginalized by historical processes. Laws designed during colonial governance continue to inform and limit women’s entrepreneurial potential and development.
Historically, state officials discouraged Zimbabwean women from settling in the towns and at the mines. The officials opposed the growth of a permanent and potentially explosive African population in the urban areas, and encouraged women and children to subsidize male wages through agricultural production at rural homesteads. State officials expected rural-based women to bear the social costs of production -- caring for the sick, disabled, and retired workers -- while raising the next generation of labourers. Innovation by women was deeply affected by legislative and policy restrictions.
Against this backdrop, the study considers the current government’s people-centred development approach from an African feminist perspective, which, inter alia, focuses on empowering African women to improve their own lives.
The study reveals challenges to community income-generating projects initiated by the Zimbabwean Ministry of Women Affairs, Gender and Community Development. These are reported to have failed to address women’s economic needs; indeed, they present more of a burden, as they add work on already overworked women.
Women in the areas of study are running potentially viable horticultural ventures. The profitability of these ventures is dependent on agricultural support and training; however, this is not being received. Instead, women in these communities are presented with artificially constructed income-generating projects.

These are some of the impressive projects under way at the Centre. Perhaps of primary importance is the investigation of the realities of individual lives and how to link them into the international human rights agendas through national legal and policy frameworks.

Centre for women's law in Africa

(Delighted to welcome back alumna Bonita Meyersfeld, who contributes a 2-part series of guest posts on international law in Africa. Part 1 is below; Part 2 is here.)

I recently attended a workshop at the Southern and Eastern African Regional Centre for Women’s Law (right). Primarily a postgraduate teaching and research institution, SEARCWL focuses on issues related to women’s multiple interconnections and intersections with the law in all its pluralities. It’s run by Professor Julie Stewart (below left) of the Faculty of Law at the University of Zimbabwe.
Among the Centre’s features is a Masters in Women’s Law programme which focuses on using a human rights compliance and implementation framework to assess, promote, implement, and conduct research on the rights of women’s and girls.
I was amazed at the quality of work being done and the far-reaching impact of each student’s work. Each research project was intellectually sound, academically consistent with international developments and grounded in principles of international law.
I came away with a sense that the work being done in this small location in the heart of Harare will probably have some of the most important impacts in bringing international human rights law theory to communities in Africa. Above all, because it is based on a ‘grounded theory of research’ which challenges assumptions in an honest and liberating way, the work being done at SEARCWL really does have the potential to change the application of laws to women’s lived experiences. Topics include:
► Political rape against supporters of a certain political party in Zimbabwe;
► Deficiencies in the prosecutions of gender crimes at the International Criminal Tribunal for Rwanda, a study being undertaken by an ICTR prosecutor;
► Women’s access to water in the “grabbed” land in Zimbabwe; and
► The experience of women in and after ethnic killings in 2007 in Kenya. (prior IntLawGrrls posts available here)
The Centre hosts some of Africa’s finest developing academics, and is a source of scholarly work which integrates the advancing academic theories in international law with the communities that international law academics often theorise about but never actually meet.
Specifically:
► In teaching, researching, reforming, and implementing human rights, law reform and laws as they affect women, the Centre seeks to undertake a holistic examination of all aspects of a problem. Each and every piece of research undertaken must examine the human rights implications of the problem; it must examine the constitutional and legal implications within the laws of the country being researched. A gender perspective (and not a women’s perspective) must be a fundamental part of the research plan, including an analysis of how men and women are affected by the conditions surrounding the identified problem.
► All and any research conducted under the Centre's auspices must be grounded in the realities of the lives of people. To this end, the Centre works on developing theory and methodology in tandem. The best illustration of this is the research and theorizing cycle, which helps students to see where they fit into the intellectual processes, but which also informs how they should move forward in any research process. This is illustrated by the diagram below.
► Most research adopts the international and regional human rights frameworks. Local constitutions and national laws are evaluated for compliance. This framework also allows for comparison between countries in the region and internationally.
The Centre sees nothing exceptional in what it does. It views itself, rather, as using the various capacities of human rights, from aspiration to litigation, to drive forward benefits for women and girls while recognizing the needs of men and boys. In so doing, it tries to build synergies that positively benefit both sexes and both genders.
In tomorrow's post, I will set forth projects through which the Centre endeavors to achieve these goals.

On September 2

On this day in ...
... 1998, was issued the 1st judgment of conviction for genocide against a defendant who stood trial before an international tribunal. Convicted in the Trial Chamber judgment in Prosecutor v. Akayesu was the former bourgmestre, or mayor, of a Rwanda community afflicted by massacres and other atrocities in 1994. As I've written here and here, the judgment was a landmark for many reasons, among them: its ruling that "sexual violence" is a crime within the jurisdiction of the International Criminal Tribunal for Rwanda (above left); and its teleological interpretation of the protected-groups element of the proscription codified in Article II of the 1948 Convention for the Prevention and Punishment of the Crime of Genocide and included verbatim in Article 2 of the ICTR Statute. (photo credit)

(Prior September 2 posts are here, here, and here.)

Fact-finding Without Facts

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

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

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

► Such inconsistencies pervade international criminal testimony; and

► They frequently pertain to core features of that testimony.

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

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

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

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

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

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

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

Careful examination shows:

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

► How such inferences can explain and justify both:

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

►► Certain otherwise inexplicable acquittals.

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

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

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

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

Gender Crimes and Canada's Genocide Prosecutions

(Delighted to welcome guest Heather Goodman, who contributes this post in tandem with IntLawGrrl Valerie Oosterveld)

On Friday, Jacques Mungwarere, an Ontario resident who immigrated several years after the 1994 genocide in his native Rwanda, appeared in a Canadian court in connection with 4 counts, arising out of events in the Kibuye region, levied against him in June: 2 charges of genocide (intentional murder and causing serious bodily or mental harm to Tutsis); and 2 charges of crimes against humanity (intentional murder and sexual violence). Mungwarere, who appeared before the Ontario Superior Court in Ottawa (logo at left), is the 2d person to be charged under Canada’s Crimes Against Humanity and War Crimes Act. Passed in 2000, the Act permits the national prosecution of genocide, crimes against humanity, and war crimes under the doctrine of universal jurisdiction. (The website of the Canadian Centre for International Justice provides more details on the case.)
The first person to have been charged is Désiré Munyaneza (below right), a Rwandan who had been living in Toronto before his arrest on October 19, 2005. (photo credit) Authorities charged him, under the 2000 Canadian Act, with 7 seven counts stemming from events in the Butare region of Rwanda: 2 counts of genocide (intentional murder and causing serious bodily or mental harm to Tutsis); 2 counts of crimes against humanity (intentional murder and sexual violence); and 3 counts of war crimes (intentional murder, sexual violence and pillaging).
Munyaneza’s trial officially began on March 27, 2007, in Montreal, though it had been preceded by a rogatory commission in Kigali, Rwanda, during which Justice André Denis of Quebec Superior Court heard the first 14 prosecution witnesses -- witnesses unable to travel to Canada. At trial proceedings in Montreal, the prosecution called an additional 16 prosecution witnesses, for a total of 30. The accused called 36 witnesses in total. A dozen were heard by the court in Montreal; the remainder, by rogatory commission: 3 in Paris, 7 in Kigali, and 14 in Dar es Salaam, Tanzania.
On May 22, 2009, as then posted, Justice Denis issued a judgment of conviction on all counts. That same year, on October 29, Munyaneza was sentenced to life in prison, with no chance of parole for 25 years. His case is currently on appeal.
The Munyaneza judgment is important for the overall development of Canadian law under the Crimes Against Humanity and War Crimes Act. More specifically, we believe that it is also significant as an example of a gender-sensitive domestic universal jurisdiction prosecution.

Throughout the Munyaneza judgment, countless examples of gender-based crimes are evident:

► For example, expert witness Dr. Rony Zachariah told the court about his pregnant colleague, a Hutu woman. She was killed because her husband was Tutsi, and therefore, “the child she was carrying … would be Tutsi” (para. 456).
► Several witnesses recounted a difference in treatment between male and female victims. Witness C-19 stated that “Minister Pauline gave instructions to kill the men and rape the women,” and that Munyaneza was particularly zealous in following these instructions, making the men undress before taking them away to be killed (para. 687). Witnesses C-16, C-17, and C-24 observed that the men were taken away and never seen again, while the women were raped (paras. 636, 655 and 834). Witnesses C-15, C-19 and C-23 recalled the treatment of Tutsi women as though they were property (paras. 620, 689 and 801). Witness C-22 stated that members of the Interahamwe militia “raped a girl on the prefecture grounds in front of everyone” (para. 768). Witness C-15 stated that about ten men raped her, and that “they wanted to see whether Tutsi women were better than others” (para. 617).
► Witnesses also recited instances of sexual captivity. Witness C-15, who was 17 years old in 1994, recounts how she and two other Tutsi girls were kept in sexual captivity for three days, where they were repeatedly raped (paras. 615, 619). Witness C-20 observed that women would be taken away by soldiers and the Interahamwe to be raped, and some did not return for two days (para. 704). Witness C-23 provided similar testimony, stressing that Interahamwe especially liked to take away very young girls for an evening or for days, and that Munyaneza took part in this violence (para. 800).
A militia member took witness C-21 to the house of Munyaneza’s father, Isaac Munyagasheke. Witness C-21 testified that Munyagasheke paid 20,000 Rwandan francs for her life, and she stayed at his house until the RPF took the city. She also told the court that, while at the house, she was raped five times by Munyaneza, who was armed and threatened to hand her over to the Interahamwe, who would kill her. C-21 felt unable to leave because she had nowhere safe to go (paras. 727-741). At one point, Munyaneza told C-21 that “he had kept her alive to show what a beautiful Tutsi was like, since she was the last” (para. 736).

In his May 22 judgment, Justice Denis defined the prohibited genocidal act of causing serious bodily or mental harm to include “rape, sexual violence, mutilation and interrogation accompanied by blows or threats” as well as “[s]ubjecting a person to intense fear, terror, intimidation or threats” (paras. 88-89). He relied in particular on the judgment of the International Criminal Tribunal for Rwanda in Prosecutor v. Akayesu in the course of defining the term “sexual violence” as any act of a sexual nature which is committed on a person under circumstances which are coercive (para. 95). Denis provided examples of such sexual violence: forcing a person to undress in public; sexual penetration; rape; and sexual molestation (para. 96). He adopted the same approach with regard to the crimes against humanity and war crimes counts (paras. 121 and 142). When considering the war crimes charges, Denis also held that an act of sexual violence is part of “inhumane acts”, “outrages upon personal dignity”, and “serious bodily or mental harm” as regards the victim (para. 141).
In an article entitled "Canada’s Crimes against Humanity and War Crimes Act on Trial: An Analysis of the Munyaneza Case", published this year in the Journal of International Criminal Justice, Professor Fannie Lafontaine (left), of the Faculty of Law at the University of Laval in Quebec, noted that Justice Denis' judgment did not define the term “rape”, despite the fact that his factual findings often referred to rape. In Canadian law, the crime of rape was replaced by the broader term “sexual assault” in 1983. As Lafontaine points out, since the Crimes Against Humanity and War Crimes Act defines Canadian law by reference to international criminal law, and since international criminal law does recognize the specific crime of rape, the crime of rape is again part of Canadian law, at least for the purposes of this statute. She argued that Justice Denis should therefore have defined the term “rape”.

For us, LaFontaine’s observation raises the very interesting question of how the Crimes Against Humanity and War Crimes Act should address such differences between international criminal law and Canadian criminal law -- especially differences that, many would argue, put Canadian law in a more progressive stance than international criminal law.

Guest Blogger: Kate Gibson

It's IntLawGrrls' great pleasure to welcome Kate Gibson (right) as a guest blogger.
Kate's the Co-Counsel of Jean-Baptiste Gatete, a defendant before the International Criminal Tribunal for Rwanda. She's also a member of the defence legal team for Radovan Karadžić, the former Bosnian Serb leader now on trial at the International Criminal Tribunal for the former Yugoslavia. She has previously worked in defence at the ICTR on the Government II case, and the Military I case, where she worked for General Gratien Kabiligi, who was acquitted of all charges in December 2008.
She was the Associate Legal Officer of Judge Mohamed Shahabuddeen, who served on the ICTY Appeals Chamber till 2009, and she also worked as a lawyer for civil parties on the Duch trial at the Extraordinary Chambers in the Courts of Cambodia in Phnom Penh.
Kate holds an LL.M. in International Law from Cambridge University, and is admitted as a solicitor of the Supreme Court of Queensland, Australia.
In her guest post below, Kate discusses the 2-week arrest and detention in Rwanda of American law professor Peter Erlinder, attorney for another accused in the ICTR's Military I case, as well as the ramifications of that detention among defence counsel at the ICTR.
Heartfelt welcome!

Rwanda arrest & ICTR defence counsel

(I am very grateful to IntLawGrrls for the invitation to guest-post on this issue.)

It is now 15 days that Peter Erlinder (left), a colleague in the international defence bar, has been imprisoned in Rwanda. (photo credit)

Erlinder, Professor of Law at William Mitchell College of Law in St. Paul, Minnesota, is Lead Counsel for Major Aloys Ntabakuze, an accused in the Military I case who is in the process of appealing his December 2008 conviction by the International Criminal Tribunal for Rwanda. Erlinder was arrested in Rwanda on 28 May 2010, and this week his application for bail was denied.

Although no indictment has been issued, the bail decision indicates that Erlinder will be charged with ‘genocide denial and downplaying the genocide, in addition to spreading rumours capable of endangering the security of the Rwandan people’ -- a crime punishable in Rwanda by up to 20 years' imprisonment.

Erlinder was in the Rwandan capital, Kigali, to assist Victoire Ingabire (right), chairperson of the United Democratic Forces political party. Ingabire, who is seeking to run against Rwandan President Paul Kagame in the 9 August presidential elections, herself has been charged with propagating genocide ideology and ethnic divisionism. (photo credit)

Opposition to Erlinder's arrest has been swift and widespread, with multiple national bar associations calling for his release, the US State Department urging for his release on ‘compassionate grounds’, and legislation being introduced in the U.S. House of Representatives requesting his immediate return to the United States. Many of the public letters of opposition cite to Principle 16 of the UN Basic Principles on the Role of Lawyers, which states that

governments shall ensure that lawyers are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference.

The response from the Tanzania-based ICTR itself, however, has been inconsistent.

In the face of filings from defence teams requesting varied forms of relief, such as the suspension of proceedings and the withdrawal of counsel due to external pressures, the ICTR announced through its official spokesman that given that Peter was not in Rwanda on official mission in his role as counsel, the ICTR did not have the ‘power or vocation for giving lawyers any immunity in cases that are not related to the ICTR’s mandate’.
The ICTR’s hands-off approach subsequently became more difficult, however, on account of the Decision on Provisional Incarceration and Release rendered by the High Court of Gasabo, Rwanda, on 7 June. In two paragraphs of this decision summarising the Prosecution’s submissions, the Court refers to the link made by the Prosecutor between the alleged genocide denial and Erlinder’s pleadings as a Defence counsel in the Military I case. This is a critical link. It is one which it appears the ICTR could no longer ignore, as evidenced by decisions of recent days.

Trial Chamber III, for example, rendered on 9 June a decision the motion of another accused, Ildephonse Nizeyamana, for suspension of the proceedings, noting that

it appears from the available information that the charges against Peter Erlinder are partly related to his submissions before the Tribunal during the Military I case. The issue whether as to bring the matter before the Security Council with reference to Articles 28 and 29 of the Statute is presently being considered by the President of the Tribunal.

Significantly, Article 28 of the ICTR Statute requires states to cooperate with the Tribunal, albeit in ‘the investigation and prosecution of persons accused of committing serious violations of international humanitarian law.’
So what is the impact of this situation on the ICTR’s Defence Counsel? Particularly those who have upcoming missions or site visits to Rwanda which are necessary in the defence of clients?

Certainly the most immediate impact was felt by Peter Robinson (left), Lead Counsel for another accused, Joseph Nzirorera. (photo credit) Following Erlinder’s arrest, Robinson had filed a request for withdrawal on the grounds that continued representation of his own client would cause him to be in violation of the ICTR's Code of Professional Conduct for Defence Counsel, Article 5 of which requires:

In providing representation to a client, Counsel must ... [n]ever permit their independence, integrity and standards be compromised by external pressures.

Having filed this request, Robinson was unwilling to proceed with a witness examination before receiving a decision from the ICTR Registrar. After issuing a warning, Trial Chamber III then initiated contempt proceedings, and Robinson now faces a maximum penalty of 5 years imprisonment or a fine not exceeding US$10,000. Considering the acts for which contempt proceedings are normally reserved at the ad hoc tribunals, this decision of the Chamber to initiate contempt proceedings was surprising to many.
While reports that the ICTR has ‘ground to a halt’ are misplaced, the mood is certainly tense among Defence lawyers. While the link remains between Erlinder’s work as a Counsel on the Military I trial and his alleged genocide denial, the position for Defence teams at the ICTR seems uncertain. This concern, of course, is secondary to the anxiety felt for the well-being of our colleague, and his family.

Unsettling profile of war crimes ambassador

War crimes envoy has personal touch read the headline for Colum Lynch's recent Washington Post profile of Stephen J. Rapp, who, as we've posted, became U.S. Ambassador at Large for War Crimes Issues in September.
Figured the story would talk about how Rapp's experiences as the top prosecutor at the Special Court for Sierra Leone had prepared him for this post. Fair enough.
But then came the subhead:
U.S. ambassador at large knows victimization and is a 'champion' of the brutalized
Uh-oh.
The story kicked off with a harrowing account of an all-night carjacking/kidnapping that Rapp endured 48 years ago. It then repeatedly linked this personal tragedy to Rapp's avowed self-image as "'a champion'" of the victims of crimes he's prosecuted, 1st in federal courts back home in Iowa, then at the International Criminal Tribunal for Rwanda, and eventually at the Sierra Leone court.
Midway through, the story quoted criticism of the United States' policies on war crimes, levied by Fabienne Hara of the International Crisis Group, who contended

that the United States has not lived up to its commitment to stop violence as it unfolds. Its response to war crimes in three of the most serious conflict zones of the past two years, Congo, Sri Lanka and Gaza, consists of pressing for 'accountability after the crisis rather than stopping or preventing the crisis.'

Yet the reporter seems oblivious to another concern -- a concern apparent in the way that he chose to frame his story.

I've written here and here about what I call an "impartiality deficit" in international and internationalized criminal tribunals. Included within the term is concern that victims and victimization are overemphasized, to the exclusion of other interests at play in a properly balanced criminal justice system. Values of fairness and due process preclude establishment of a criminal court -- or prosecution office -- solely for the purpose of representing victims' interests. Both the court and the prosecutor have the duty to represent the larger society, to serve the interest of public safety even if that interest at times conflicts with those of victims -- as, for instance, proper adherence to defense rights often does.

That's not my own idiosyncratic view. Rather, it embodies tradition recalled in a 1935 U.S. Supreme Court opinion.

In Berger v. United States, Justice George Sutherland, a conservative Republican, wrote this in a unanimous opinion that reversed a conviction on account of misconduct by the federal prosecutor:

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor-indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

Prosecutors who assume a different mantle of responsibility, who construe their their role as the victims' lawyers, as the winners of the case, do so at a risk. 1st, identifying "victims" and "perpetrators" can be a difficult task, as is evident not only in yesterday's Los Angeles Times story about cycles of violence, but also in any consideration of how to deal with former child soldiers. 2d, feeding perceptions that international criminal justice seeks vengeance stokes already overheated claims of "victors' justice." 3d, as many pretrial proceedings at Guantánamo and the trial of Saddam Hussein demonstrated, singular equation of justice with victory does little to reduce the dangers of impartiality deficit.

It's to be hoped that the spin of the Post profile reflects reportorial choice rather than any such singular equation -- that punishment will be but 1 goal of the Office of War Crimes Issues, and that postconflict reconstruction and preconflict prevention will enjoy priorityof place.

Write On! Africa & international justice

(Write On! is an occasional item about notable calls for papers.) In preparation for an international conference, the Africa Interest Group of the American Society of International Law is seeking abstracts of paper proposals.
The overarching topic is "Africa and the Future of International Criminal Justice," the title of the conference, to be held, July 14 to 16, 2010, at the School of Law of the University of the Witwatersrand, Johannesburg, South Africa. The school's program in Law, Justice & Development in Africa is organizing the event along with the ASIL interest group; supporting their work is the Open Society Initiative for Southern Africa.
Conference themes include:
► The Post-Colonial African State and Impunity: Governance, Conflicts, Human Rights Violations and Accountability
► Peace in Africa's Conflict Zones and Justice for Gross Atrocities: Mutually Exclusive or Interdependent Ends?
► The Impact of the International Criminal Tribunal for Rwanda and the Special Court for Sierra Leone on Impunity in Africa
► Africa and the Politics of International Criminal Justice: Implications for a Universally Credible International Criminal Justice Mechanism
► Africa and the International Crimial Court: Any Genuine Objections or Just a Disregard for Treaty Obligations?
► Africa and the Complementarity Principle of the International Criminal Court: Implications for the Domestic Rule of Law and Justice in Dealing with Atrocity Crimes
► Impunity and Justice: Any African International Criminal Justice Alternatives?
►The Limits of the International Criminal Court in Achieving Peace and Justice in Africa
Deadline for proposals, of no more than 1,000 words, is November 15, 2009; details here.

Torts Against Humanity

We’ve blogged before on the Bowoto case, brought against California-based Chevron Corporation for the injury and deaths of individuals protesting the defendant’s extraction activities in the oil-rich Niger River Delta region in Nigeria (Chevron facility at left; photo credit; Delta below right). Although many accounts of the case focus on the fact that the jury ultimately ruled in favor of the defendant (a trial blog is available here), the case has generated some important doctrinal rulings on the Alien Tort Statute (see for example Chimène Keitner’s work on complicity liability and the ATS). One opinion worth reading for international criminal law aficionados is the district court’s ruling on the cognizability of crimes against humanity (CAH) under the ATS: Bowoto v. Chevron, 2007 U.S. Dist. LEXIS 59374 (N. Dist. Ca. August 14, 2007). All key rulings in the case are available here (Earthrights International).

Crimes against humanity are a constellation of acts made criminal under international law when they are committed in the context of a widespread and systematic attack against a civilian population. The enumerated acts include murder, deportation, torture, sexual violence, and arbitrary detention. Like many international crimes, crimes against humanity are characterized by a dual mens rea element. A prosecutor/plaintiff must not only prove the existence of the mens rea associated with the underlying constitutive offense (e.g., intent to kill), but also that the defendant knew that his/her actions were part of the attack against a civilian population. These so-called chapeau (“hat”) elements applicable to all CAH serving to distinguish international crimes from “ordinary” acts of murder, mayhem, and assault prosecutable under domestic law (or, for that matter, from “ordinary” torts).
CAH have been the subject of several ATS suits brought by the Center for Justice and Accountability, and other human rights groups, These include:
► Cabello v. Fernandez-Larios, 402 F.3d 1148, 1152 (11th Cir. 2005) (finding that the work of the "Caravan of Death," a Chilean military unit that "traveled to many cities in northern Chile where the military officers engaged in acts of extrajudicial killing, torture, and abuse of various individuals who were incarcerated due to their alleged opposition to the military junta," constituted crimes against humanity);
► Doe v. Saravia, 348 F. Supp. 2d 1112, 1156 (E.D. Cal. 2004) (so characterizing atrocities committed by military "death squads" including the assassination of Monsignor Óscar Romero);
► Chavez v. Carranza, 2006 U.S. Dist. LEXIS 63257, *2 (W.D. Tenn. 2006) (same with respect to Salvadoran security forces); and
► Mehinovic v. Vuckovic, 198 F. Supp. 2d 1322, 1344 (N.D. Ga. 2002) (finding CAH liability on default judgment for acts involved in "ethnic cleansing" in the former Yugoslavia).

The Bowoto district court joined these courts (and others) in finding CAH cognizable under the ATS--in theory. It dismissed the claims, however, on a motion for summary judgment brought under Federal Rule of Civil Procedure 56 on the ground that plaintiffs had submitted insufficient evidence to raise a genuine issue of material fact as to whether the Nigerian Security Forces had launched a “widespread or systematic attack” directed against “a civilian population.” Id. at *30. In so ruling, the district court cited extensively from opinions generated by the International Criminal Tribunals for Rwanda (ICTR) and Yugoslavia (ICTY), exemplifying the increased penetration of ICL norms and reasoning into U.S. jurisprudence.



In particular, the court cited extensively from Prosecutor v. Limaj (defendant Fatmir Limaj at right), before the ICTY. Prosecutor v. Limaj, Case No. ICTY-03-66-T, Judgment, paras. 180-228 (Nov. 30, 2005). Limaj involved crimes committed by the Kosovo Liberation Army (KLA) against civilians within the war in Kosovo against Serbian forces. The Prosecution had argued that the violent acts alleged in the indictment followed a pattern and were committed over a wide geographical area such that they were sufficient to constitute “a widespread or systematic attack.”

In dismissing the crimes against humanity counts, the ICTY Trial Chamber explained that “[i]t is established that the targeting of a select group of civilians—for example, the targeted killing of a number of political opponents—cannot” constitute crimes against humanity. Rather, the attack must be “directed against a civilian ‘population,’ rather than against a limited and randomly selected number of individuals.” Limaj, supra, at para. 187. Likewise, although the “relevant conduct need not amount to a military assault or forceful takeover,” there must be a ‘course of conduct’ directed against the civilian population that indicates a widespread or systematic reach.” Id. at para. 194. The Trial Chamber concluded that the attacks in question were more in the nature of acts of guerrilla warfare against a superior, conventional military force. Id. at para. 195. To the extent civilians were detained, injured, or killed, it was because they

• were deemed to be collaborating with Serbian forces or officials, id. at paras. 196, 206-8;
• were the victims of opportunistic kidnappings, id. at para. 200; or
• were collateral damage to fighting between armed combatants, id. at para. 202.
  

Taking the evidence as a whole, the ICTY Trial Chamber observed that the KLA engaged in the abduction of a limited number of ethnic Serbs (100-140), which led it to conclude that

in the context of the population of Kosovo as a whole the abductions were relatively few in number and could not be said to amount to a “widespread” occurrence for the purposes of [CAH]. * * * The evidence discloses that there was at most a systematic” attempt by the KLA to target Kosovo Albanian individuals believed to be, or suspected of, collaborating with the Serbian authorities, but no attempt to target a civilian population as such.

Id. at paras. 210-211. Targeting only those with links to the Serbian regime in diverse geographic locations did not constitute an attack against the civilian population writ large. Id. at para. 217. Thus,

it is not possible to discern from [these abductions] that the civilian population itself was the subject of an attack, or that Kosovo Albanian collaborators and perceived or suspected collaborators and other abductees were of a class or category so numerous and widespread that they themselves constituted a ‘population’ in the relevant sense.

Id. at para. 226. Indeed, although the Trial Chamber had earlier ruled (id. at paras. 212-213) that proof of a policy to attack civilians is not a formal element of crimes against humanity, it did put some stock in the fact that there was no evidence in the record—as confirmed by expert witnesses—of a KLA policy to target civilians per se. Id. at paras. 215-216, 225. One of three defendants was convicted of war crimes; the Prosecution did not appeal the CAH acquittals.

The Bowoto district court cited Limaj for the proposition that plaintiffs had to adduce evidence that established that the particular acts of abuse in question were part of a widespread or systematic attack against a civilian population. To do this, the district court looked to

1. the raw number of victims in proportion to the overall civilian population of the region and
2. the level of precision with which the attackers selected their targets.

On both fronts, the court ruled that plaintiffs’ evidence fell short. In particular, the court noted that although plaintiffs presented evidence of attacks “resulting in hundreds of deaths and thousands of injuries, over a roughly ten-year period, in a region containing roughly 14 million inhabitants,” the victims were targeted because they were oil protesters, or associated with oil protesters, and not because they were civilians per se. Id. at *30-32. The court concluded that the violence in Nigeria did not rise to the level of other conflicts in which crime against humanity have been committed, such as in Rwanda or the former Yugoslavia. Id. at *32.

Following the disappointing jury verdict, plaintiffs moved for judgment notwithstanding the verdict and for a new trial pursuant to Federal Rules of Civil Procedure 50 and 59; both were denied. See Bowoto v. Chevron Corp., 2009 U.S. Dist. LEXIS 21944 (N. Dist. Ca. March 4, 2009). Plaintiffs have indicated an intention to appeal these rulings to the Ninth Circuit Court of Appeals. (It is not yet clear if they will appeal the MSJ ruling). See Earthright’s press release here. Chevron’s efforts to repair relations with community are described by the company here.


The Bowoto & Limaj discussion above reveals a tension in the law over expanding the reach of the prohibition on crimes against humanity beyond situations of large-scale violence or repression. The Bowoto district court implies that not all systematized violence, even if geographically dispersed, constitutes an "attack on a civilian population" within the meaning of the definition of crimes against humanity under international law. Some level of gravity must be first reached before actions will be considered crimes against humanity. In this analysis, the gravity notion appears to reside partially in the civilian “population” element rather than in the modifiers “widespread or systematic,” which seems to undercut the importance of these concepts in defining crimes against humanity. For more on gravity as an organizing principle for international criminal law, see here and here.

Guest Blogger: Lisa R. Pruitt

It's IntLawGrrls' great pleasure to welcome Dr. Lisa R. Pruitt (right) as today's guest blogger.
Professor of Law at the University of California, Davis, School of Law (Martin Luther King, Jr. Hall), Lisa's special interests include law and rural livelihoods, feminist jurisprudence, the legal profession, and torts. Her scholarship focuses on cultural differences; in particular, on the range of ways in which rural places are distinct from what has become the implicit urban norm in legal scholarship. Exposed through this research is how the economic, spatial, and social features of rural locales shape residents' lives, including their encounters the law. Most recently, as described more fully in her guest post below, Lisa has explored how rural spatiality inflects dimensions of gender, race, and ethnicity; that is, the ways in which rural lives and rural places are enmeshed with law and other forces at both national and global levels.
These are issues that Lisa examines frequently on her Legal Ruralism blog (subtitle: "A Little (Legal) Realism about the Rural"), among the "connections" links in our righthand column.
Lisa earned a Ph.D. in Laws from the University of London, where she was a British Marshall Scholar and wrote a dissertation entitled "A Feminist Reconsideration of the Legal Regulation of Speech." She earned her J.D. and B.A. degrees, both with honors, from the University of Arkanas, Little Rock, where she served as the law review's Editor-in-Chief. She was a law clerk to Judge Morris Sheppard Arnold, U.S. Court of Appeals for the Eighth Circuit, and has been a Visiting Assistant Professor at Northwestern University School of Law in Chicago, and a lecturer at the University of Amsterdam and Leiden University in the Netherlands. Lisa's pre-academia career included service as a consultant to the International Criminal Tribunal for Rwanda, as a legal assistant at the Iran-U.S. Claims Tribunal, and as associate at Covington & Burling LLP, based in its London office.
Lisa is Chair-Elect of the Section on Women in Legal Education of the Association of American Law Schools. Among her honors is to have been selected for the 2002 Stanford-Yale Junior Faculty Forum, where she presented her article No Black Names on the Letterhead? Efficient Discrimination in the South African Legal Profession.

Heartfelt welcome!

On "rape as a weapon of war"

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

U.N. Security Council Resolution 1820, entitled “Women and peace and security” and adopted on June 19, 2008, can be seen as the culmination of a long effort to have sexual violence against women recognized as instrumental – rather than incidental – to war.

In its very 1st paragraph, Resolution 1820 noted what feminists had been explaining for many years, that rape when enacted as a “tactic” of war “can significantly exacerbate situations of armed conflict and may impede the restoration of international law.” Rape can be a weapon of war, an instrumental part of conflict. As a result it must be addressed as a serious crime and an impediment to peace.

It is this recognition of rape as a ‘weapon of war’ that interests me, and which I explore it in “Rethinking Rape as a Weapon of War”, soon to be published in, and available in full online at, the journal Feminist Legal Studies. Feminist legal academics and activists writing in the early-mid 1990s, argued for recognizing ‘rape as a weapon of war’ as a means to articulate the systematic, pervasive, and orchestrated nature of wartime sexual violence that marked it as integral rather than incidental to war. In this usage, rape as a weapon of war is seen as resulting from and produced through political, social and military contexts.

The recognition of ‘rape as a weapon of war’ appears to have been taken up in numerous legal and policy institutions, from the Security Council (above right) to the war crimes tribunals for Rwanda and the former Yugoslavia. But what happens to the meaning of ‘rape as a weapon of war’ in these legal settings?

In my review of the jurisprudence of the International Criminal Tribunal for Rwanda (up to December 2008), I found that the Chamber’s depiction of rape as an instrument of the genocide constrained both the types of sexual violence and the categories of victims that it was able to see. More profoundly, in the Tribunal’s usage, rape understood as a weapon of war positioned rape as an inevitable – almost ‘natural’ – part of conflicts seen as ‘ethnic’ or ‘nationalist’. Rape became, in effect, an instrument that ‘one side’ picks up and uses against the ‘other side.’

This approach, I argue, assumes that rape is simply always available as a weapon. In this maneuvre, moreover, the Tribunal’s characterization of rape as an instrument of the genocide has the effect opposite to what feminists intended. Considering rape ‘as an instrument of the genocide’ makes it difficult to ask critical questions; for instance: why the rapes happened; how the rapes might have been connected to various social relations and structures that predated the genocide; and what women did to negotiate and resist sexual violence.

Alison Des Forges

The 1st genocide conviction after an international trial was issued by the International Criminal Tribunal for Rwanda on September 2, 1998, in the case of a Rwandan bourgmestre, Jean-Paul Akayesu. That milestone -- IntLawGrrl Susana SáCouto discussed the Akayesu judgment in a post just 2 days ago -- owed much to the work of Dr. Alison Des Forges (right).
Genocide charges turned on this question: Did the victims of the 1994 massacres in Rwanda -- mostly Tutsi -- belong to a protected "national, ethnical, racial or religious group" notwithstanding that they shared nationality, language, religion, culture, and customs with their Hutu killers? Essential to the ICTR's answer in the affirmative was the expert testimony of Des Forges, a historian who worked as a Senior Advisor for the Africa Division of Human Rights Watch. Among the judgment's many mentions of Des Forges occurs in para. 5.1, where she is quoted at length on the question:

'The primary criterion for [defining] an ethnic group is the sense of belonging to that ethnic group. It is a sense which can shift over time. In other words, the group, the definition of the group to which one feels allied may change over time. But, if you fix any given moment in time, and you say, how does this population divide itself, then you will see which ethnic groups are in existence in the minds of the participants at that time. The Rwandans currently, and for the last generation at least, have defined themselves in terms of these three ethnic groups. In addition reality is an interplay between the actual conditions and peoples' subjective perception of those conditions. In Rwanda, the reality was shaped by the colonial experience which imposed a categorisation which was probably more fixed, and not completely appropriate to the scene. But, the Belgians did impose this classification in the early 1930's when they required the population to be registered according to ethnic group. The categorisation imposed at that time is what people of the current generation have grown up with. They have always thought in terms of these categories, even if they did not, in their daily lives have to take cognizance of that. This practice was continued after independence by the First Republic and the Second Republic in Rwanda to such an extent that this division into three ethnic groups became an absolute reality'.

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."
Des Forges died Thursday in the plane crash near Buffalo. She was 66 years old.