Guest Blogger: Mia Swart

It's IntLawGrrls' great pleasure to welcome Dr. Mia Swart (left) as today's guest blogger.

Mia's an Assistant Professor of Public International law and Global Justice at Leiden University, the Netherlands, from which she earned her Ph.D. in 2006. Under the supervision of Professor John Dugard and funded by Huygens and Mandela scholarships, she completed a thesis was on the topic of Judicial Lawmaking at the ad hoc International Criminal Tribunals.
Mia's based at Leiden's Hague campus, affiliated with its law faculty and Grotius Centre. She also holds the title of Honorary Associate Professor at the University of the Witwatersrand in Johannesburg, South Africa, where she was previously worked as Associate Professor. She is also a research associate of the South African Institute of Advanced Constitutional, Public and International Law.

Published in the areas of transitional justice, international criminal law, and comparative constitutional law, Mia currently focuses her research on apartheid reparations. Her guest post below considers lessons learned from South Africa's apartheid era with respect to detention practices.
In 2007 and 2009, Mia received a Humboldt research fellowship to do research at the Max Planck Institute in Freiburg and at Berlin's Humboldt University, from which she holds an LL.M. She worked as an intern in the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia in 2001, the same year she was admitted as an attorney.
Mia chooses to honor as her foremother Olive Schreiner (1855-1920), a South African author, feminist, and antiwar campaigner about whom we've posted. Mia writes of Schreiner (below right):

She can be described as one of the most interesting and influential South African intellectuals of her time. She is most famous for her novel The Story of an African Farm, a novel portraying elementary life on the colonial frontier. The novel considered issues such as individualism and the treatment of women. She also wrote Women and Labour in which she argues that women and men should be treated and compensated equally in the workplace. She also argued for the rights of black people and other groups she perecived as being sidelined by British Imperialism. Although she is often described as a feminist and pacifist her true views escape categorisation. She was the deputy president of the Cape Town branch of the Women's Enfranchisement League. She was friends with Emily Hobhouse (a British nurse who protested against the treatment of Afrikaner women and children in British concentration camps during the Boer War) and with British intellectuals such as Mary Wollstonecraft.

Today Schreiner joins other foremothers -- including Mary Wollstonecraft -- on IntLawGrrls' list just below the "visiting from..." map at right.
Heartfelt welcome!

Guest Blogger: Monika Kalra Varma

Honored to welcome Monika Kalra Varma (right) as IntLawGrrls' guest blogger today.
Monika is the Director of the Robert F. Kennedy Center for Human Rights in Washington, D.C., where she develops and oversees programming, day-to-day operations, longterm strategies. (Prior IntLawGrrls posts.)
Since joining the center in 2002, she's spearheaded innovative economic and social rights advocacy, including efforts to hold international actors accountable for extraterritorial economic rights violations. Advocacy campaigns she's led have targeted the United Nations and its member states, various branches of the U.S. government, members of the Organization of American States and other regional bodies, international financial institutions, and corporations.
Monika serves on the editorial board of Health and Human Rights: An International Journal, published by the Harvard-based François-Xavier Bagnoud Center for Health and Human Rights, and she is a steering committee member of the Lawyers Emergency Response Network for Haiti. She is also a member of the advisory board for the Global India Fund.
She speaks regularly with policymakers and members of civil society about domestic and international human rights issues, and has published commentary in, to name a few, the Boston Globe, the Guardian, the Huffington Post, and Jurist.
Today she contributes to IntLawGrrls. Monika's guest post below discusses her recent visit to Western Sahara as part of an RFK Center delegation -- a visit that produced a just-published report.
Prior to joining the RFK Center, Monika worked at The Hague. As a legal officer in the Office of the Prosecutor of the International Criminal Tribunal for the former Yugoslavia, she was a member of the trial team which secured the ICTY's first indictment and eventual conviction of the crime of terror. Accused, and eventually convicted, was General Stanislav Galić, the Serb military commander in Sarajevo from 1992-1994.
Monika earned her B.A. degree from the University of California, San Diego, and her J.D. from the University of California, Davis, School of Law. Indeed, I'm proud to say that she is a former student of mine, and the author while a student of a pathbreaking article, "Forced Marriage: Rwanda’s Secret Revealed," 7 University of California Davis Journal of International Law & Policy 197 (2001). We're been honored to name her a featured alumna on the website of our California International Law Center at King Hall, and also to work with her on the Darfur Project (described in posts available here) undertaken jointly between CILC and the RFK Center.
A truly heartfelt welcome!

Not so fast toward the EU?

'Our children must not be burdened by policies of the 1990s.'

So said Serbian President Boris Tadić a few days ago, while laying a wreath near Vukovar, Croatia, where Serb forces executed more than 200 hospital patients as part of a 3-month siege in which more than 1,000 Croats were killed, 5,000 civilians seized, and 22,000 non-Serbs expelled. (credit for Reuters photo)
Tadić said he had come

to pay respect to the victims, to say words of apology, to show regret and create a possibility for Serbia and Croatia to turn a new page.

Part of that post-atonement chapter, Serbia hopes, is European Union membership, so that Serbia no doubt welcomed subsequent EU and the U.S. State Department comments heralding the visit as a welcome step toward reconciliation.
But the move brings to mind the objection that Serge Brammertz (below right), Chief Prosecutor of the International Criminal Tribunal for the former Yugoslavia, raised regarding any plan to allow EU admission while ICTY indictees like former Bosnian Serb General Ratko Mladić remain at large. As we've posted, Brammertz has said:

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.'

On October 5

On this day in ...
... 2000 (10 years ago today), in what the BBC called a "relatively peaceful revolution," demonstrators "stormed the Yugoslav parliament building in Belgrade" (right) and "ransacked" the building housing state broadcast channels. (credit for AP photo) The crowds were protesting the intention of Serb President Slobodan Milošević to remain in office after contested elections that many believed his opponent had won. Within a day after these demonstrators, Milošević had resigned from office; within a year, he was transferred to a detention center at The Hague; within 6 years, he had died while still on trial before the International Criminal Tribunal for the former Yugoslavia.

(Prior October 5 IntLawGrrls posts are here, here, and here.)

A bad September for suits against corporations under the Alien Tort Statute

First there was Citizens United (2010), in which the U.S. Supreme Court gave corporations more ability to influence our politics. Now, one of the few avenues for holding bad corporate actors responsible for overseas violations of basic human rights has been seriously undermined. In a pair of cases from two highly influential federal courts, plaintiffs have lost appeals in cases involving corporate defendants under the Alien Tort Statute (prior posts).
Issuing the 1st decision was the U.S. Court of Appeals for the 9th Circuit.
In a mid-September decision, the 9th Circuit denied plaintiffs’ appeal from an adverse jury verdict in Bowoto v. Chevron (prior posts here and here). A jury in December 2008 had found Chevron not liable for the death of one protester and injuries to others when security forces, at Chevron’s request, attacked a group of protesters on an oil rig in the Niger Delta. Plaintiffs appealed on a number of grounds, including faulty jury instructions and the judge’s failure to allow a number of claims. (credit for photo above right)
The appeals court decision in Bowoto, from a panel consisting of 9th Circuit Judges Mary M. Schroeder, Jay Bybee (yes, that Bybee, the one who signed off on the torture memos) and District Court Judge Owen Panner, threw out all of plaintiffs’ claims. The opinion for the panel, written by Judge Schroeder (right):
► Held that the summary execution claim is not allowable under the ATS because it is preempted by the Death on the High Seas Act – a somewhat ironic result given that piracy on the high seas was one of the first, and most enduring, types of ATS claims. The court recognized the possibility of piracy claims but nonetheless held that all plaintiffs’ claims for wrongful death and survival had been preempted.
► Also dismissed all the allegations of improper jury instructions.
These rulings are disappointing, but case-specific enough to have limited application elsewhere.
► Not so the court’s ruling that corporations cannot be sued under the Torture Victims Protection Act. The TVPA applies to cases of torture or summary execution committed under color of foreign law. In Bowoto the 9th Circuit undertook to construe the statute's extension of liability to “an individual who…subjects an individual to torture.” The court held that use of the word “individual” rather than “person” to characterize both potential plaintiffs and defendants made clear that Congress meant to exempt corporations from the ambit of the law. Future TVPA cases therefore may sue individual defendants only.
(This ruling is now definitive for cases in the 9th Circuit (comprising Alaska, Arizona, California, Guam, Hawai'i, Idaho, Montana, Nevada, Northern Marianas Island, Oregon, and Washington); it is in conflict with the only other appeals court to consider the issue, the 11th Circuit.)
Issuing the 2d decision was the U.S. Court of Appeals for the 2d Circuit.
The 2d Circuit's late-September decision in Kiobel v. Royal Dutch Petroleum Co. (prior post) compounded the blow dealt by the 9th Circuit in Bowoto.
Kiobel is a companion case to Wiwa v. Shell, both brought by family of Nigerian activists killed for their protest activities against oil drilling in the Niger Delta, allegedly with the complicity and connivance of Shell officials. (photo credit) Wiwa settled in 2009 for $15.5 million, but the panel in Kiobel, led by Judge José Cabranes, decided to request supplemental briefing on the issue of whether corporations could be sued at all under the ATS. In the Kiobel decision, the panel decided that they cannot.
Thus, in the 2d Circuit, which includes New York, corporations have a liability-free zone for depredations abroad.
How could this happen, after a decade of litigation against corporations under the ATS and a number of settlements and jury trials, without the issue ever arising before?
Here’s one chronology:
Back in 2002, there was the Unocal case, involving allegations of forced labor, slavery and other rights violations as part of a pipeline project in Burma. (photo credit) As part of the years of legal skirmishing in that case, a 9th Circuit panel split on the question of whether it was international law or domestic legal doctrines that governed ancillary issues arising under the ATS. (Prior posts here and here.) That is, everyone agreed that the core definition of the “violation of the law of nations” came from international law.
But what about the innumerable other issues, like who can be sued and under what definitions of liability?
► Judge Harry Pregerson held that those questions were governed by international law, and looked to the jurisprudence of the International Criminal Tribunal for the former Yugoslavia to answer the question of how to define “aiding and abetting” for purposes of ATS liability.
► Judge Stephen Reinhardt thought that domestic doctrines of agency, unjust enrichment and tort were more than sufficient and should be used to fill in all the necessary gaps in international law.
At the time, it was not clear to litigators what the implications of this choice could be, since both international and domestic law pointed in the same direction.
Because the panel decision was eventually withdrawn for unrelated reasons, the Unocal case created no precedent. It was up to the 2d Circuit to define the issue.
At first, the 2nd Circuit had as much trouble as the 9th. In Khulumani v. Barclay Int'l Bank Ltd., 504 F.3d 254 (2007), involving allegations of corporate complicity in shoring up the apartheid regime in South Africa, the judges split again. (prior post) (image credit) Judge Robert Katzmann, on the question of aiding and abetting, found that ancillary issues were governed by international law. Rather than look to the ICTY, however, he looked at the Rome Statute of the International Criminal Court, and concluded that aiding and abetting had a “purpose” requirement in international law, one not found in domestic law. Thus, turning to international law had the effect of raising the bar for what plaintiffs needed to prove.
A 2d Circuit panel that included Judge Cabranes agreed with this analysis in a subsequent decision in Presbyterian Church of Sudan v. Talisman Energy, Inc. (October 2009). It dismissed the case on grounds that the plaintiffs could not show that Talisman Energy had the purpose of aiding and abetting the crimes of the Sudanese security forces, even though the oil company knew about the violations and acted despite that knowledge. Plaintiffs’ certiorari petition was set for review by the U.S. Supreme Court at the end of September, but the Court seems not yet to have decided whether to weigh in.
Judge Cabranes’ decision in Kiobel took the reasoning in these earlier cases one step further: if we look for the definition of “aiding and abetting” in international law, then logically we should look for the answer to whether corporations are entities capable of committing actionable violations in international law as well.
Judge Cabranes, predictably, could find few cases in which corporations as such (as opposed to their officers and owners) were held criminally liable for international crimes. He too used the ICC Statute against plaintiffs, using the decision of the Rome Statute drafters not to allow prosecutions of legal persons as evidence of a customary norm excluding corporate liability. (This even though the Rome Statute makes clear that it does not necessarily follow customary law.)
Unfortunately, because of the very nature of international law, it is unlikely to provide answers to lots of questions – including this one – which have always been considered to be issues of domestic law.
As Judge Pierre Leval, concurring in the judgment in Kiobel, put it:

So long as they incorporate (or act in the form of a trust), businesses will now be free to trade in or exploit slaves, employ mercenary armies to do dirty work for despots, perform genocides or operate torture prisons for a despot's political opponents, or engage in piracy – all without civil liability to victims.

Let’s hope this new month of October brings better news on the ATS litigation front.

Winding-down staff

If a tribunal sounds an alarm and no one listens, has it made a sound?
A twist on the "tree falls in a forest" conundrum, the question seem to size up the early-summer state of affairs at the 1st ad hoc international criminal tribunal set up since the Nuremberg era.
The alarm call came in June, in a statement that Judge Patrick Robinson (below left), President of the International Criminal Tribunal for the former Yugoslavia, to the U.N. Security Council.
Robinson's words were dire:

[S]taff are leaving the Tribunal in droves—3 in every 5 days—for greater job security with other institutions, often within the United Nations. I must therefore warn you that this factor ... is impacting adversely upon the expeditious completion of all but one of our trials. And it will worsen.

Robinson blamed the departures on the push to close the Hague-based tribunal (above right) as soon as possible. Staffers sought more permanent work elsewhere. A solution would be to grant some security of employment within the U.N. system, argued Robinson, who served in various positions in Jamaica, the inter-American system, and the U.N. system before joining the ICTY in 1998. (credit for 2009 photo) But Robinson's statement made clear that, to date, his plea had fallen on deaf ears:

Staff attrition, and the desperate need for urgent action in stemming that flow, is a factor that I have repeatedly stressed to the utmost degree in my previous presentations to the Security Council and the General Assembly. I am quite frankly at a loss as to what more might be done or said on my part to turn your attention to this issue.

Just heard about all this, thanks to a news roundup from our colleagues at the International Criminal Law Bureau.
Further checking showed that Security Council Resolution 1931 (2010), issued on June 29, did extend terms of ICTY judges, as Robinson had urged. With regard to other staffers, the resolution treads rather more lightly. It

[n]otes the importance of the International Tribunal being adequately staffed to complete its work expeditiously and calls upon the Secretariat and other relevant United Nations bodies to continue to work with the Registrar of the International Tribunal in order to find practicable solutions to address this issue as the International Tribunal approaches the completion of its work, ....

One hopes that Robinsons' staffing call truly was heard, and that the search for "practicable solutions" has been productive. Otherwise this aspect of the ICTY completion process will continue to put off completion. As Robinson explained to the Council, fewer workers means less work can get done.
Further hope: that in the future, policymakers will make policies that avoid the occurrence of such an utterly foreseeable ill consequence of winding down.

The torture ban & cultural relativism

At the XVIIIth International Congress of Comparative Law held here in Washington, D.C., last week (about which others have blogged here and here), I was asked to participate in a plenary session.
The session was entitled The Prohibition Against Torture and Cultural Relativism. Specifically, I was asked to speak about this issue from an international criminal law perspective, addressing in particular whether different notions of how to evaluate allegations of torture emerge in the jurisprudence of the ad hoc international criminal tribunals. Interestingly, I found that the way in which the tribunals dealt with this question had a gender dimension.
A summary of my thoughts follows.
Consistent with human rights law, torture under the jurisprudence of the international criminal tribunals consists of an act or omission giving rise to severe physical or mental pain or suffering. Notably, the tribunals have held that permanent injury is not a requirement for torture; moreover, evidence of the suffering need not even be visible after the commission of the crime.
Nevertheless, in some cases, the tribunals have highlighted that certain forms of torture have long-lasting effects on the victim, particularly in cases involving sexual violence.
In those cases, it appears that social and cultural context may be relevant to an assessment of whether the pain is severe enough to constitute torture. For instance, while the tribunals have recognized that rape qualifies as torture because it causes severe pain and suffering, both physical and psychological, an early judgment of the International Criminal Tribunal for the former Yugoslavia -- Prosecutor v. Delalic, Mucic, Delic and Landzo (the Celibici Case) (1998)-- explicitly pointed out:

The psychological suffering of persons upon whom rape has been inflicted may be exacerbated by social and cultural conditions and can be particularly acute and long-lasting.

A later judgment, Prosecutor v. Limaj (2005), agreed with this finding, noting that

in certain circumstances the suffering can be exacerbated by social and cultural conditions [and that] the evaluation should[, therefore,] take into account the specific social, cultural and religious background of the victims when assessing the severity of the alleged conduct.

Curiously, this later judgment highlighted the fact that this finding was

made specifically in the context of rape.

Perhaps this is not surprising, since harm from sexual violence is often long-lasting, in part because of the cultural and social norms prevalent in many of the victims’ communities.

Indeed, as commentators have noted, women and girls continue to suffer from the consequences of sexual violence long after a conflict or attack against the civilian population has ended, often because of the social and cultural values of the community to which the victim belongs. For instance,

the birth of children from rape [by a member of a group to which the victim does not belong] ... is likely to cause significant [and long-term] ... mental harm, especially in patriarchal societies where the ethnicity of the child is [considered to be] that of the father, thus the rapist.

(See the 2005 book by Professor Anne-Marie L.M. de Brouwer (left), Tilburg Law School, the Netherlands, entitled Supranational Criminal Prosecution of Sexual Violence: the ICC and the Practice of the ICTY and ICTR.) Similarly, long-term consequences such as isolation and ostracism are particularly common in social, cultural , or religious communities which attach stigma to the victim rather than the perpetrator of rape; indeed, victims of rape in these communities are sometimes cast as “unmarriageable” or abandoned by their spouse and/or family members.

Interestingly, the idea that cultural conditions should be considered in the analysis of whether particular conduct rises to the level of torture does not seem to appear in the discussion of other types of acts alleged to constitute torture.

In fact, acts such as:

► being forced to watch severe mistreatment inflicted on a relative;

► falsely informing a victim that his parent has been killed; and

► forcing victims to collect the dead bodies of other members of their ethnic group

have all been recognized as amounting to torture by the ad hoc tribunals without recourse to an analysis of the victims’ cultural or social background.

Consistent with this, consideration of cultural or social conditions is absent from the elements of torture, as enumerated in the Elements of Crimes that the Assembly of States Parties adopted to assist the judges of the International Criminal Court in interpreting the crimes within the jurisdiction of the Court. In fact, consideration of such factors is absent from the elements of all other crimes subject to the jurisdiction of the ICC, save one: the war crime, set forth in Article 8(b)(xxi) of the Rome Statute of the ICC, of commission of outrages upon personal dignity.

This crime requires that the

perpetrator humiliated, degraded or otherwise violated the dignity of one or more persons [to a] degree ... generally recognized as an outrage upon personal dignity.

A footnote to the definition states that it “takes into account relevant aspects of the cultural background of the victim.”

It may, perhaps, be appropriate to consider the broader circumstances in which the accused’s conduct occurred – including the cultural background of the victim – when assessing whether that conduct “humiliated, degraded or otherwise violated the dignity of” the victim, as what is considered to violate one’s dignity is often culturally dependent. Curiously, however, there is little discussion of victims’ cultural backgrounds in the jurisprudence of the ad hocs dealing with the war crime of outrages upon personal dignity. Indeed, while the tribunals have found, for instance, that:

► the use of detainees as human shields or trench-diggers;

► inappropriate conditions of confinement;

► performing subservient acts;

► being forced to relieve bodily functions in one’s clothing; or

► enduring the constant fear of being subjected to physical, mental or sexual violence

all qualify as outrages upon personal dignity, none of these findings were contingent upon an analysis of the victims’ social or cultural circumstances.

Thus, even in the context of assessing whether a person’s dignity has been violated – where the social, cultural or religious context may be relevant to understanding how a perpetrator’s conduct would be experienced by the victim as violating his or her dignity – a victim’s cultural heritage seems to have had little bearing on the tribunal’s analyses.

The tribunals’ lack of attention to cultural context may, perhaps, be explained by a shift in their jurisprudence with respect to how long the victim must have suffered as a result of the accused’s humiliating or degrading conduct – a factor that, as the ICTY indicated in its discussion of rape as torture, can be exacerbated by the social and cultural values of the community to which the victim belongs.

While an early case, Prosecutor v. Aleksovski (1999), suggested that the humiliating or degrading treatment must have caused “lasting suffering” to the victim, the trial chamber decision in a later case, Prosecutor v. Kunarac et al. (2001), found:

So long as the humilitation or degradation is real and serious, the Trial Chamber can see no reason why it would also have to be "lasting" .... Obviously, if the humiliation and suffering caused is only fleeting in nature, it may be difficult to accept that it is real and serious. However this does not suggest that any sort of minimum temporal requirement of the effects of an outrage upon personal dignity is an element of the offence.

I would submit that this is probably the right approach, not only in the context of prosecuting sexual violence as an outrage upon personal dignity, but also when prosecuting it as the war crime or crime against humanity of torture.

Indeed, not all women who suffered sexual violence in conflict situations are permanently shamed, ostracized, or rejected by their communities. In fact, one commentator writing on wartime rape in Bosnia-Herzegovina notes that when one rape survivor was asked whether she felt shame or guilt because of what happened to her, she responded:

'The shame is theirs, not mine.'

(See Feminism and its (Dis)contents: Criminalizing Wartime Rape in Bosnia and Herzegovina, a 2005 article by Karen L. Engle (right), Cecil D. Redford Professor in Law and Director of the Bernard and Audre Rapoport Center for Human Rights and Justice at the University of Texas School of Law.)

Opening the door to consideration of social and cultural conditions in assessing whether conduct was severe or serious enough to warrant characterization as an outrage upon personal dignity or an act of torture may lead to overlooking conduct that might not result in long-lasting suffering but would otherwise qualify as humiliating or degrading, or even as an act of torture.

More significantly, it may tempt the court to evaluate the circumstances of a case by reference to the judges’ own social or cultural norms.

The Sentencing Judgement in Prosecutor v. Zelenović case illustrates this point. The judgment in that case was confined to sentencing, as the accused there pleaded guilty to torture and rape as crimes against humanity. Noting that

[t]he gravity of the offences is the primary consideration in imposing a sentence,

the trial chamber first emphasized that

torture by means of rape is a particularly grave form of torture.

It then went on to point out that what makes rape a particularly serious crimes is

[t]he violation of the moral and physical integrity of the victims.

Although the accused’s conduct no doubt caused physical, and perhaps psychological, harm to the victims, it is unclear what the Chamber meant by stating that the rape also violated the victims’ “moral integrity.” The point here is that the Chamber’s use of the term “moral” seems to imply a value judgment about the nature of sexual violence which the victims may or may not have shared.

Notably, the ICTY Appeals Chamber's 2002 decision in Kunarac took an arguably more objective approach in analyzing the question of whether rape amounts to torture. Rather than considering the victims’ social or cultural background in assessing whether the harm was severe enough to qualify as torture, the Appeals Chamber held:

Generally speaking, some acts establish per se the suffering of those upon whom they were inflicted. Rape is obviously such an act .... Sexual violence necessarily gives rise to severe pain or suffering, whether physical or mental, and in this way justifies its characterisation as an act of torture.

In light of the circumstances in which victims find themselves in these cases – that is, in the midst of an armed conflict or a widespread or systematic attack against a civilian population – it is perhaps understandable that cultural conditions need not be considered when evaluating whether the harm suffered was serious or severe enough to qualify as torture. Indeed, as explained by the ICTY in Prosecutor v. Kvocka et al. (2001):

In considering whether severe pain and suffering was also inflicted upon the other victims of sexual violence, the Trial Chamber takes into consideration the extraordinary vulnerability of the victims [in this context] and the fact that they were held imprisoned in a facility in which violence against detainees was the rule, not the exception. The detainees knew that Radic [the accused] held a position of authority in the camp, that he could roam the camp at will, and order their presence before him at any time. The women also knew or suspected that other women were being raped or otherwise subjected to sexual violence in the camp. The fear was pervasive and the threat was always real that they could be subjected to sexual violence at the whim of Radic. Under these circumstances, the Trial Chamber finds that threat of rape or other forms of sexual violence undoubtedly caused severe pain and suffering to [the witnesses] and thus, the elements of torture are also satisfied in relation to these survivors.

In sum, I think that in this context there is little room for a cultural relativism approach.

'Nuff said

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

'Thousands would be a conservative estimate.'

-- Dr. Wendy Lower (below right), on the findings of her research respecting the number of women who took some part in genocide and other crimes of the Nazi era. The New York Times article that carries the quote further notes the significance of her addition of a "gender perspective" to the tragedy of the Holocaust. Historian Lower allows that no more than 2% of "perpetrators" were women. (credit for above-left photo from 1947 trial of Auschwitz-Birkenau guard Maria Mandel) But she adds that many other women aided Nazi efforts indirectly; for instance, by hosting parties for men who killed. (Consider too this prior IntLawGrrls post.) The reality that some women were agents of crime is one we 'Grrls have discussed a number of times, in relation not only to postwar accountability at Nuremberg, but also to contemporary tribunals such as the Extraordinary Chambers in the Courts of Cambodia and the International Criminal Tribunal for the former Yugoslavia.

Crimes Against Humanity: Enduring normative debates and doctrinal ambiguities

(Delighted to welcome back alumna Margaret deGuzman, who contributes this guest post on Crimes Against Humanity, her forthcoming book chapter)

In the summer of 1997 I was a law student intern in the Legal Advisor’s Office of the Office of the Prosecutor of the International Criminal Tribunal for Former Yugoslavia at The Hague (left). When I walked in the door I was told that my assignment was to try to figure out the mens rea of crimes against humanity.

I was shocked. Surely someone who had spent more than a semester studying criminal law had already worked out the elements of crimes against humanity?

I spent a fascinating summer digging through cases decided under the Nuremberg Charter and under Control Council Law No. 10, as well as anything else I could get my hands on that might provide some insight into the mental element of crimes against humanity. (In those days, international criminal law sources were not as readily available as they are now.)

In the end I wrote an article that argued, as much on policy grounds as on precedent, that the mens rea should involve knowledge of the connection between the individual’s inhumane act and the broader attack against a civilian population. I like to think that my work influenced the adoption of the knowledge standard in the Appeals Chamber's July 15, 1999, Judgement in Tadić, but who knows?

I have remained fascinated with crimes against humanity ever since. One of the things that most intrigues me is that although this category of crimes is supposed to represent, along with genocide, the worst of the worst that people can do to each other, there is still lots of uncertainty about the elements and the theoretical underpinning of the legal prohibition.

The persistent uncertainties surrounding crimes against humanity are due in part to their historical origins. After World War II, the Allies wanted to prosecute the Nazis for crimes committed within German territory, conduct that was not covered by the laws of war. They found purchase for the new crime in the Martens Clause, part of the preamble of the Hague (IV) Convention Respecting the Laws and Customs of War on Land. Invoking natural law protections for any lacunae in the laws of war, the Martens Clause provides that persons not otherwise covered in the 1907 Convention

remain under the protection and rule of the principles of the law of nations, as they result from the usages among civilized peoples, from the laws of humanity, and the dictates of the public conscience.

From those cryptic words, a new category of international crimes was born, without any diplomatic negotiations, drafting committees, or treaty ratifications.

This unusual history is only partly to blame for the persistent uncertainties that surround crimes against humanity, however. Figuring out what is meant by “crimes against humanity” has simply proven tricky for many smart people over the years. The International Law Commission debated the matter for decades, diplomats pondered the elements when they drafted the statutes of the ad hoc tribunals, and the international community spent years trying to work out a definition for the Rome Statute of the International Criminal Court. Nonetheless, the ICC definition, in some ways the culmination of all these efforts, remains controversial in a number of important respects. Furthermore, the normative justification for crimes against humanity continues to engage deep thinkers, as illustrated by a number of recent treatments by such scholars as David Luban, Larry May, and Richard Vernon.

I explore some of the persistent normative debates and doctrinal ambiguities that surround crimes against humanity in my contribution to the forthcoming The Routledge Handbook on International Criminal Law, edited by our colleagues, William A. Schabas and IntLawGrrl guest/alumna Nadia Bernaz. My chapter first provides an overview of the evolution of the definition of crimes against humanity, before surveying the competing normative visions of this category of crimes. A number of justifications have been advanced for international jurisdiction over crimes against humanity, including that they:

► Threaten international peace and security;

► Are particularly grave and thus shock the conscience of humanity;

► Involve actions of states or state-like organizations that would otherwise go unpunished; and

► Target groups rather than isolated individuals.

I conclude that ultimately none of these approaches provides a clear and complete rationale for categorizing certain inhumane acts as crimes against humanity.

I then explore the doctrinal debates that necessarily result from the lack of clear philosophical underpinnings for these crimes:

► What constitutes a widespread or systematic attack?

► Is a policy required and, if so, what kind?

► What defines a “civilian population”?

► What connection is required between the individual inhumane act and the broader attack?

Last year, a group of experts on crimes against humanity gathered in St. Louis at the invitation of Washington University Law Professor Leila Nadya Sadat, an IntLawGrrls guest/alumna, to consider a Convention on Crimes Against Humanity. Initially, there was much discussion of how to “improve” the definition for inclusion in the Convention. Ultimately, however, the organizers decided it would be unwise to create a new definition that would compete with that included in the Rome Statute and simply adopted the latter’s definition. Perhaps the debates about crimes against humanity will now subside, and the Rome Statute’s definition as interpreted by the court will gain general acceptance.

In the meantime, I’ll continue to be intrigued.

Judge Vaz stands alone (for now)

IntLawGrrls is a frequent site for discussions about gender, women judges, and international justice. It was a theme in our recent Kampala series, of course, and the central consideration in posts by guests like Patricia M. Wald (here) and Nienke Grossman (here).
In that light, this bears note:
As is evident from the photo array available here, Andrésia Vaz of Senegal (right) is currently the lone woman out of 16 permanent judges at the International Criminal Tribunal for the former Yugoslavia (logo above left).
Even that's better than the status quo elsewhere at The Hague.
As we've posted, the International Court of Justice (logo above middle) is a male-only bench, as it has been from its inception save the years that Rosalyn Higgins, now retired, served. In a recent ASIL Insight, our colleague Natalya Scimeca laid out the process by which the 2 ICJ vacancies are to be filled. In so doing, she noted that China's national group "has apparently nominated Madam Xue Hanqin [left], who is currently the Chinese Ambassador to the Association of Southeast Asian Nations (ASEAN) and a member of the International Law Commission," to replace the departing ICJ judge from China. No word yet on the nomination by the U.S. national group. Scimeca, who clerked for Judge Thomas Buergenthal, retiring after a decade on the ICJ, made this comment about the possibility that no woman might be chosen for either ICJ vacancy:

This would be unfortunate at a time when the Court's supporters seek to justify its continuing relevance and its unique status within the international legal realm.

(See news update in post above)

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!

2 life terms for Bosnia genocide

The largest trial ever before the International Criminal Tribunal for the former Yugoslavia concluded today with 7 convictions -- and 2 sentences to life in prison -- for crimes committed against Bosnian Muslims in 1995 in the U.N.-protected communities of Srebrenica and Žepa. (photo credit)

Facing life imprisonment following convictions for genocide, extermination, murder, and persecution are 2 of of the defendants, Vujadin Popović, Chief of Security of the Drina Corps of the Bosnian Serb Army and Ljubiša Beara, Chief of Security in the Army's Main staff. Other sentences ranged from 35 to 5 years' impsonment.

The judgment in Prosecutor v. Popović et al. (IT-05-88) "Srebrenica" (which includes a finding of joint criminal enterprise) does not yet appear to be available online. A 15-page summary (!) of the opinions by the panel comprising Judges Carmel Agius (Malta), Kimberly Prost (ad litem, Canada), and O-Gon Kwon (South Korea), is here.

ICC reports Sudan's non-cooperation to Security Council

Pre-Trial Chamber I of the International Criminal Court has rendered a decision in the case of Prosecutor v. Harun and Ali Kushayb, informing the U.N. Security Council about Sudan's lack of cooperation in the proceedings.
The decision issued Tuesday was in response to the Prosecutor's April 19 request for a finding on Sudan's non-cooperation in executing warrants, issued by the Chamber 3 years earlier, for the arrest of former State Minister for the Interior Ahmad Muhammad Harun and militia leader Ali Muhammad Ali Abd-Al-Rahman, also known as Ali Kushayb. In these past 3 years, Sudan has refused to cooperate in efforts to deliver Harun, who faces 42 counts of war crimes and crimes against humanity, and militia leader Ali Kushayb, who faces 50 counts of war crimes and crimes against humanity, to the Court. Moreover, Sudanese President Omar al-Bashir, who himself is the subject of an ICC warrant for arrest (prior IntLawGrrls posts), has publicly denounced the proceedings and vowed never to turn a single Sudanese citizen over to the Court.
It is in this context that Pre-Trial Chamber I -- comprising Presiding Judge Sylvia Steiner (Brazil) (left) and Judges Sanji Mmasenono Monageng (Botswana) (below, near left) and Cuno Tarfusser (Italy) -- issued Tuesday's decision. It gave notice of Sudan's non-cooperation to the Security Council, which in Resolution 1593 (2005) had referred the situation in Sudan to the ICC.
While Sudan is not a party to the Rome Statute of the ICC, the Chamber noted that as a U.N. member state, Sudan is obligated under Article 25 of the U.N. Charter to comply with Resolution 1593 -- and that paragraph 2 of that resolution states that Sudan

shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor ....

In its order, the Chamber simply stated that its decision was to be transmitted to the Security Council so that the Council could

take any action it may deem appropriate.

While it remains to be seen how the Security Council will respond to the Chamber's decision, the Council has responded to reports of non-cooperation from international tribunals in the past. For example, in 1996, the Council condemned the Republic of Serbia's and Serbia and Montenegro's failure to execute arrest warrants against Radovan Karadžić and Ratko Mladić after receiving a report from the President of the International Criminal Tribunal for the former Yugoslavia that referred to an ICTY Trial Chamber's finding that neither State was cooperating with the execution of the warrants. In its statement, the Security Council demanded full cooperation from the Republic of Serbia and Serbia and Montenegro. In July 2008, as we then posted, Serbian authorities finally arrested Karadžić.

One can only hope that the ICC need not wait 12 years for Sudan's cooperation on the warrants for Harun and Ali-Kushayb.

Farewell to a Legal Pioneer: Nancy Paterson

Nancy Paterson—one of the chief architects of the indictment against Slobodan Milošević—died a couple of weeks ago of ovarian cancer at the age of 56. I had the pleasure of working with Nancy at the International Criminal Tribunal for the Former Yugoslavia (ICTY) where she was a Team Legal Advisor.
Nancy was a woman who saw no gender boundaries. She reportedly played Little League in the 1960s on a boy’s team and then played basketball at University of Miami in Ohio. After graduating from Syracuse Law School, she made her way to the District Attorney’s office in Manhattan and worked under the legendary Robert Morganthau. During her eleven-year stint at the DA’s office, she worked primarily on child abuse and sex crimes cases and also helped to form one of the first special victim’s bureaus.
In the mid-1990s, she served on the U.N. Commission of Experts that investigated war crimes and crimes against humanity in the Balkans. The work of the Commission laid the groundwork for the establishment of the ICTY. Nancy joined the Office of the Prosecutor in 1994 (one of the first handful of staff) and co-authored the Kosovo indictment against Milošević, making him the first sitting head of state to be indicted by a modern international tribunal. (See prior posts here). This indictment was later extended to accuse Milošević of crimes committed in Croatia and Bosnia-Herzegovina.
After leaving the tribunal on the day the trial of Milošević began, Nancy worked on fraud issues with the World Bank and the U.S. Federal Reserve.
She will be missed.

Her obituaries are available here: New York Times, Washington Post.
An interview with her in which she gives advice to law students is available here.

On March 29

On this day in ...
... 1919, the Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties, chaired by U.S. Secretary of State Robert Lansing (below left) and including 14 other men from 10 countries, presented its Report to the Preliminary Peace Conference convened at the end of World War I, as we've posted here, here, and here. (photo credit) Nearly 80 years later, in Prosecutor v. Delalić (1998), ¶¶ 336-37, the International Criminal Tribunal for the former Yugoslavia discussed a key aspect of this report:

[I]t is often suggested that the roots of the modern doctrine of command responsibility may be found in the Hague Conventions of 1907. It was not until the end of the First World War, however, that the notion of individual criminal responsibility for failure to take the necessary measures to prevent or to repress breaches of the laws of armed conflict was given explicit expression in an international context. In its report presented to the Preliminary Peace Conference in 1919, the International Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties recommended that a tribunal be established for the prosecution of, inter alia, all those who, "ordered, or with knowledge thereof and with power to intervene, abstained from preventing or taking measures to prevent, putting an end to or repressing violations of the laws or customs of war."
Such a tribunal was never realised, however, and it was only in the aftermath of the Second World War that the doctrine of command responsibility for failure to act received its first judicial recognition in an international context.

(Prior March 29 posts are here, here, and here)

Look on! The ICTY on film

(Look On! takes occasional note of noteworthy films.) Finally, a dramatic film made especially for Intlawgrrls. If you care about international justice issues, and especially about gender justice, go see Storm.
This German/Dutch film tells the story of a woman prosecutor at the International Criminal Tribunal for the Former Yugoslavia, and her attempts to bring down a war criminal. In the course of doing so, she encounters a victim of one of the rape camps set up during the conflict. Not to give the film’s plot away, suffice to say it touches on a lot of the dilemmas and issues raised by international criminal prosecutions: the difficulty of the tribunals to adequately balance the needs of victims and the demands of successful prosecution (at one point, an exasperated prosecutor exclaims “a prosecution is not therapy!”), the compromises involved in plea bargaining, the continuing power dynamics in the region, the warring desires within victims to bear witness and to start anew. And especially, the tendency of international courts to downplay rape charges, to not recognize the importance of gender-based crimes, especially when it's not expedient to do so.
The film is highly critical of the ICTY, but also sympathetic to the good intentions of the prosecutors. It could perhaps have spent a bit more time establishing the importance of prosecuting the former warlords before digging into the critique of the Tribunal’s actions. But given the usual simplistic narratives of courtroom dramas, the film does an excellent job raising the difficulties and complexities of making justice happen.