Go On! IntLawGrrls at AALS

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

The Association of American Law Schools will be holding its 2011 annual meeting in San Francisco from January 5-8th. This year's theme is: Core Educational Values: Guideposts for the Pursuit of Excellence in Challenging Times.

If you are attending, be sure to check out IntLawGrrls and IntLawGrrl guests/alumnae in action. As detailed in the annual meeting program, they are:

Wednesday, Jan 5th

► At 2:00 pm, Afra Afsharipour will be speaking at the Law and South Asian Studies Section's panel: Lawyers as Social Change Agents in South Asia.

► Also at 2:00, Michele Bratcher Goodwin will speak on the Biolaw Section's panel: Synthetic Biology Meets the Law, and Penelope Andrews will moderate the Africa Section's panel: U.S. Africa Policy at the Midpoint of President Obama's First Term.

Thursday, Jan. 6th

► At 9:00 am, Stephanie Farrior, Hari M. Osofsky, Christiana Ochoa, Annecoos Wiersema, Leila Nadya Sadat, and Cindy Galway Buys will be participating in the International Law Section's panel: International Law Year in Review.

► At 2:00, Penelope Andrews will be speaking on the Constitutional Law Section's panel: American Constitutionalism in Comparative Perspective.

► At 2:30 pm, Lisa R. Pruitt will take part in a panel on Class, Socio-Economics, and Critical Analysis.

Friday, Jan. 7th

► At 8:30 am, Caroline Bettinger-López and Alexandra Huneeus will present at the
New Voices in Human Rights panel of the Section on International Human Rights.

► At 10:30 am, yours truly, Rebecca M. Bratspies, and Hari M. Osofsky will be participating in the Hot Topics panel: The BP Blowout Oil Spill and Its Implications.

► Also at 10:30, Laurel S. Terry will be speaking on the Education Law Section's panel: Immigration and Higher Education.

► At 4:00, Michelle Oberman will be speaking on the Law, Medicine and Health Care Section's panel: Women's Choices, Women's Voices: Legal Regimes and Women's Health.

Saturday, Jan. 8th is an action-packed IntLawGrrls day:

► At 7:00 in the morning, Laurel S. Terry will be speaking at the AALS Workshop and Continental Breakfast for 2010 and 2011 Section Officers.

► At 8:30 am, yours truly, Rebecca M. Bratspies, will be speaking on the Animal Law Section's panel: Treatment and Impact of Farmed Animals.

► At 1:30 pm, Elizabeth L. Hillman will be speaking on the National Security Section's panel: The Relationship Between Military Justice, Civil/Military Relations and National Security Law.

► Also at 1:30 pm, Jenia Iontcheva Turner will be speaking on the Comparative Law Section's panel: Beyond the State: Comparative Approaches to Group Political Identity in the Age of the Transnational.

► At 3:30 pm, Christiana Ochoa, will be moderating the International Law Section's panel: Was Medellin Wrongly Decided?

► Also at 3:30 pm, Jennifer Kreder will speaker on the Section on Law and Anthropology panel entitled The Role of Cultural Property Across Cultures and Legal Regimes.

As always, I am struck by the wide range of interests that our fearless leader Diane Marie Amann has brought together under the IntLawGrrls umbrella.

FYI: Because the Hilton is embroiled in a labor dispute with UNITE HERE, Local 2 (the hotel's workers have been working without a contract for over a year), registration and most of the AALS events have been moved to other nearby hotels. There may be other last-minute changes, so be sure to go by the locations in the schedule you receive at check-in rather than the brochure that circulated last month. See you in San Francisco.

(credit for 2010 poster of San Francisco by Kevin Dart)

Guest Blogger: Nancy Amoury Combs

It's IntLawGrrls' great pleasure to welcome Dr. Nancy Amoury Combs (right) as today's guest blogger.
Nancy's the 2009-11 Cabell Research Professor of Law at William & Mary Law School in Williamsburg, Virginia, which she joined in 2004 and where she teaches Human Rights Law, International Criminal Law, International Law, and Transitional Justice, all areas on which her scholarship touches. In her guest post below, Nancy discusses her just-published book on fact-finding by international criminal tribunals.
She holds a Ph.D. from Leiden University in the Netherlands. Her J.D. is from the University of California-Berkeley, where she served as Articles Editor of the California Law Review and received the Thelin Marrin prize for graduating 1st in her class. After law school, she clerked for Judge Diarmuid O'Scannlain, U.S. Court of Appeals for the Ninth Circuit, and U.S. Supreme Court Justice Anthony M. Kennedy. She also earned a Certificate from the Hague Academy of International Law, and served as legal advisor at the Iran-United States Claims Tribunal in The Hague. Nancy was graduated summa cum laude with a B.A. in philosophy from the University of Portland in Oregon.
Along with IntLawGrrls' guests/alumnae Margaret deGuzman, Yvonne McDermott, and Jenia Iontcheva Turner, Nancy serves as an Expert Researcher for the Netherlands-based International Expert Framework on International Criminal Procedure. Our distinguished guest/alumna, Judge Patricia M. Wald, belongs to the IEF Advisory Board.
Before attending university, Nancy owned and operated a chimney sweeping business.
Heartfelt welcome!

Legal ethics in international criminal defense

(It's IntLawGrrls' great pleasure to welcome back alumna Jenia Iontcheva Turner, who contributes this guest post)

The practice of defending persons accused of international crimes often raises complex ethical questions. This fact is well illustrated by the recent trial (left) before the Extraordinary Chambers in the Courts of Cambodia of Kaing Guek Eav, alias Duch, the former head of Tuol Sleng prison, for war crimes and crimes against humanity, about which IntLawGrrl Beth Van Schaack posted a while back. Throughout the proceedings and in his closing statement, Duch appeared to accept responsibility for the crimes with which he was charged, but he also stated that he was merely following orders and acting out of fear for his life. His Cambodian lawyer chose to mount an aggressive defense, arguing that the ECCC lacked jurisdiction over Duch and that Duch should be acquitted because he was merely following orders. Yet, in closing arguments, Duch’s French lawyer emphasized Duch’s remorse and cooperation with the court, and asked for lenience in sentencing. It is unclear to what extent Duch was truly remorseful and to what extent he wanted to mount an aggressive defense. (credit for photos) Nonetheless, the case does highlight the question of the defense attorney’s responsibility when his or her client wants to admit guilt and not contest the charges. Should the attorney acquiesce in the client’s decision not to pursue an aggressive defense? What if the attorney believes that at least some of the charges are unfounded, or indeed, that the client is innocent? The Codes of Conduct of international criminal courts do not offer clear guidance to this question.
This is one of many complex and unresolved ethical questions that international criminal defense attorneys face in their work. I discuss some of these questions in my recent article entitled "Legal Ethics in International Criminal Defense," forthcoming in the Chicago Journal of International Law. The questions addressed in the article include:
► Whether defense attorney should impeach victim-witnesses whom they know to be telling the truth;
► How defense attorneys should respond to clients who want to testify in a manner the attorney believes to be false;
► Whether an attorney should permit a client whom the lawyer believes to be innocent to plead guilty; and
► How an attorney should to respond to a client’s request to boycott or disrupt the proceedings. I argue that international criminal practice calls for a distinct approach to such ethical questions. In some cases, the special features of international criminal law call for less aggressive advocacy than might be warranted in an ordinary domestic criminal case. In others, they may demand a more independent approach to making decisions about the client’s representation.
This distinct approach to legal ethics at international criminal courts is appropriate for several reasons:
► First, international criminal courts do not follow a purely adversarial model of criminal procedure. Instead, they are a blend of the adversarial and inquisitorial approaches, and the inquisitorial approach takes a somewhat different, more reserved view of defense advocacy.
► Second, international criminal trials, to a greater degree than domestic trials, serve goals beyond that of determining guilt or innocence according to fair procedures. These goals include providing an authoritative record of the crimes for posterity, giving victims a forum in which to express their grief and outrage, spreading support for human rights, and promoting peace and reconciliation. While it is not the defense attorney’s job to promote these broader goals, they nonetheless at times suggest different approaches to the regulation of defense attorney conduct.
► Finally, some of the justifications for aggressive defense at the domestic level—such as discouraging disengaged advocacy and protesting overly harsh punishments—are less applicable internationally.
To implement the approach I set out in the article, I propose including a commentary to international courts’ Codes of Conduct (particularly the ICC Code), which would define more precisely the boundaries on aggressive practices. The commentary would not create new categories of sanctionable conduct. Instead, it would identify situations in which attorneys are not required to engage in certain aggressive tactics or follow certain client instructions. In some cases, it would also recommend a particular course of action as most consistent with the attorneys’ ethical obligations, while leaving some flexibility to attorneys in how they interpret their duties before the ICC.

The Grrls Are Back in Town

Today, Temple Law School hosts the annual Junior International Law Scholars' (JILS)conference. Created several years ago by Rosa Ehrenreich Brooks and Tim Wu, JILS aims to establish a safe space for its members, pre-tenure and recently tenured international law scholars, to present and receive feedback on works-in-progress, as well as to ensure friendly dialogue between scholars with differing perspectives on the international law project. Today's workshop, organized by IntLawGrrls guest blogger Chimène Keitner (right) and David Zaring, and hosted by yours truly, will also be something of an IntLawGrrls reunion.

There's lots of good stuff on the agenda, including IntLawGrrl Karen Bravo's (left) paper Transborder Labor Liberalization: A Path to Enforcement of the Global Social Contract for Labor?, in which she argues from an economic as well as a human rights perspective that free movement of labor is appropriate and necessary in our globalized economy. We also have IntLawGrrl Hari Osofsky (below right) presenting her work-in-progress, Diagonal Climate Regulation: Implications for the Obama Administration, in which she examines the potential approaches the new administration could take to enforcing environmental regulations and presents a path forward aimed at integrating entities at different levels of government, thereby creating cross-cutting synergies; IntLawGrrl Rebecca Bratspies will comment. I will also discuss my current paper, Resolving Dueling Legitimacies: Buying Into Transitional Justice Mechanisms, which critically examines currently favored transitional justice mechanisms and suggests a new approach that emphasizes the needs and interests of societies afflicted by mass violence; IntLawGrrl guest blogger Meg DeGuzman will comment. Finally, IntLawGrrl guest blogger Jenia Iontcheva Turner (left) will present an early stage work-in-progress on ethical issues faced by international criminal defense lawyers, and how professional responsibility should be regulated in internationalized criminal courts. And of course, there are plenty of other interesting papers on topics as varied as the right to property in international law, federalism and foreign affairs, and comparative employment discrimination law. Wish you were here!

Go On! "Transnational Networks"

(Go On! is an occasional item on symposia of interest. This particular one's a guest post, from IntLawGrrl guest/alumna Jenia Iontcheva Turner)

On Friday, November 7, 2008, SMU Dedman School of Law will host an international law conference entitled The Rise of Transnational Networks. The American Society of International Law is a co-sponsor, and the quarterly publication of the American Bar Association's Section of International Law and Practice, The International Lawyer, will devote a symposium issue to the conference.

In the last few decades, judges, legislators, prosecutors, and agency officials have increasingly been coordinating policy and decision-making across borders through informal networks. Such coordination has often occurred without formal legal sanction and is especially prominent in areas of cross-border regulation, including banking, antitrust, environmental protection, and securities law. But it also occurs in more politically charged areas, such as constitutional law, national security, law enforcement, and human rights.

This conference will bring together academics, judges, government agency officials, and NGO representatives to discuss the increased prominence of networks and the contributions of such networks to international cooperation. Participants will discuss questions such as:

► Under what conditions are transnational networks likely to arise?

► How do they function?

► What are their advantages over traditional diplomacy and international organizations?

► In what circumstances are networks most likely to be successful?

► What are some of the main obstacles to their legitimacy and effectiveness?

► How can these obstacles be overcome?

A detailed program, registration, and more information may be found here.

Socio-Legal Methods in International Law

Last week, I hosted a Workshop on Socio-Legal Methods in International Law at the University of Pittsburgh Law School. The workshop was intended as a sally into the ongoing debate about the use of empirical methods to assess international law, claiming a place for qualitative methods (interviews, surveys, participant observation, and the like) as empirical research and exploring the contribution of this sort of interdisciplinary work to our understanding of international law in practice.
Building from panels and roundtable discussions sponsored by the International Human Rights Collaborative Research Network at the last two Law and Society Association annual meetings, this workshop brought together legal scholars, legal anthropologists, and others to discuss the role of socio-legal research methodologies and theoretical frameworks in studying international law. Participants included Intlawgrrl Rebecca Bratspies, IntLawGrrls guest bloggers Jenia Turner and Peggy McGuinness (also a cofounder of Opinio Juris blog), and other intlaw and intlaw-studying colleagues. For a full list of the participants and other information about the workshop, see the workshop webpage.
As described by the workshop's theme statement:

... Amongst legal scholars who study international law, attention has recently turned to empirical studies that attempt to demonstrate the real word effects (or lack thereof) of international law. With this increase in empirical work legal scholars are debating the relative efficacy of various quantitative and qualitative methodologies in developing empirical descriptions of international law practice. At the same time, there has been an upsurge in the interest in international law, and particularly in international human rights, amongs legal anthropologists.
Against this backdrop, this workshop will explore the role of socio-legal methodologies in describing and defining the contours of international law. It brings together legal anthropologists, legal scholars, and others studying international law from various disciplinary perspectives to discuss their research international law and their use of various methodologies and theoretical frameworks. The participants include specialists in international human rights law, international criminal law, international environmental law, and other areas. The methodological questions to be addressed are cross-cutting, concerning the role of methodology in shaping our understanding of international law and the challenges international law creates for socio-legal methodologies.

Guest Blogger: Jenia Iontcheva Turner

It's IntLawGrrls' great pleasure today to welcome as a guest blogger Jenia Iontcheva Turner (right), an Associate Professor at the Dedman School of Law, Southern Methodist University, Dallas, Texas.

Jenia teaches criminal procedure, comparative criminal procedure, international criminal law, and international organizations. Before joining SMU, she served as a Bigelow Fellow at the University of Chicago Law School, teaching legal research and writing and comparative criminal procedure. She earned her J.D. from Yale, where she was a Coker Fellow and articles editor for the Yale Law Journal and the Yale Journal of International Law. After her 1st year of law school, she was a summer clerk at the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia; the following summer, she worked at the Federal Public Defender’s Office in Houston and the New York and Paris offices of Debevoise & Plimpton.

Jenia's publications concentrate on issues related to comparative and international criminal law and procedure; in that vein is her guest post below, which discusses her study of defense counsel attitudes toward international criminal proceedings. She's currently working on Plea Bargaining Across Borders, a book that explores plea bargaining from a comparative perspective.

Heartfelt welcome!

Defense counsel on "show trial" claims

First, my thanks to the IntLawGrrls for inviting me to be a guest blogger. I am glad to be a part of the blog’s ongoing discussion of timely and relevant international law topics.
As this blog and media around the world have reported, the former Bosnian Serb leader accused of genocide and crimes against humanity, Radovan Karadžić, has just been handed over to the International Tribunal for the former Yugoslavia for prosecution. He has already declared that he would like to represent himself. In doing so, he may intend to follow in the footsteps of Slobodan Milosevic and Vojislav Seselj, both of whom represented themselves and tried to turn the ICTY proceedings into a show for audiences back home. Karadžić is reportedly still considered a hero by some Serbs, with poems in his honor being recited at nationalist gatherings at Belgrade pubs. The prosecution at the ICTY is understandably concerned that, by representing himself in The Hague, Karadžić will do his best to politicize the proceedings and score points with his nationalist supporters.
Karadžić’s plan to represent himself, and the possibility that he will attempt to use the trial as a platform for political statements, feeds into a popular image of international criminal trials turned into a show by conniving defendants and their attorneys. In fact, the Milosevic and Seselj trials do not accurately represent the vast majority of international criminal trials. In most such trials, the defense does not attempt to politicize the proceedings. (credit for photo of ICTY session) Instead, they approach the process in much the same way as do defendants and their counsel in most ordinary domestic proceedings — refraining from political statements, and instead simply putting forward their best legal and factual defenses to the offenses charged. This is one of the main findings of my article on Defense Perspectives in Law and Politics in International Criminal Trials, 48 Va. J. Intl’l. L. 529 (2008).
My article addresses a larger, fundamental question about the purposes of international criminal trials:

Do international criminal trials serve primarily legal purposes, similar to the objectives of domestic trials, or do they serve primarily political purposes, such as helping communities heal and compiling an accurate record of the past?

The article examines this question through the perspectives of an overlooked, but important, participant in these trials—the defense attorney. Through personal interviews, scholarly articles, and case law, I analyze the attorneys' motivations, strategies, and tactics in representing defendants at the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda. In particular, I ask whether defense attorneys believe that international criminal trials serve primarily adjudicative or primarily political purposes.
The survey finds that defense attorneys believe that these trials are much farther from being constructed primarily to satisfy political purposes, and much nearer to being truly adjudicative proceedings whose crucial function is to separate the guilty from the innocent. Defense attorneys believe that a good number of their clients are innocent and that acquittals are possible. Their perceptions, I argue, are not merely inevitable products of the role they play, but are supported by an increasing number of acquittals, dismissals, and vigorous debates about liability doctrines and rules of procedure. Finally, and contrary to some perceptions, most defense attorneys do not view political statements or attacks as appropriate tactics in international criminal trials and instead focus on factual and legal challenges to the prosecution's case.
Even as international trials retain their unique political importance, the attitudes of those actually engaged in them reflect their character as primarily adjudicative proceedings. Importantly, as key players in the trials, defense attorneys not only reflect, but also influence the proceedings, shifting them toward the adjudicative model.