On December 10

On this day in ...
... 1945 (65 years ago today), Gabriela Mistral addressed a banquet at City Hall in Stockholm, where earlier in the day she'd been awarded the Nobel Prize in Literature. She stressed the bonds between Sweden and her own country:

As a daughter of Chilean democracy, I am moved to have before me a representative of the Swedish democratic tradition, a tradition whose originality consists in perpetually renewing itself within the framework of the most valuable creations of society. ...
At this moment, by an undeserved stroke of fortune, I am the direct voice of the poets of my race and the indirect voice for the noble Spanish and Portuguese tongues. Both rejoice to have been invited to this festival of Nordic life with its tradition of centuries of folklore and poetry.

Mistral (prior posts), who'd been born Lucila Godoy y Alcayaga 56 years earlier, was not only a renowned poet, but also a diplomat, serving on League of Nations cultural committee and as a Chilean consul in Italy, Spain, and Portugal. (credit for photo of 5,000-peso note honoring her) She's the transnational foremother of IntLawGrrl Naomi Roht-Arriaza.

(Prior December 10 posts are here, here, and here.)

In passing: Ellen L. Lutz

Ellen L. Lutz, an international human rights lawyer, teacher, and activist, died this past Thursday, November 4, at her home in Cambridge, Massachusetts. The cause was metastatic breast cancer. She was 55.
During her final two years battling the disease, Ellen (near right) directed the Cambridge-based human rights organization Cultural Survival, co-edited two pioneering books (Prosecuting Heads of State, (Cambridge U. Press) and Human Rights and Conflict Management in Context (Syracuse U. Press), submitted formal reviews on state behavior to the UN Human Rights Council, led international litigation on behalf of Panama’s threatened Nobe Indians, and sang alto with the Harvard-Radcliffe Chorus. She did each with equal enthusiasm and skill.
Her concern for human rights began when, as a 15-year-old exchange student to Uruguay, she witnessed the onset of Uruguay’s state sponsored “Dirty War,” and supported the international human rights movements such actions spawned across Latin American during the 1970s. After graduating Summa Cum Laude from Temple University (1976) and obtaining a Master’s Degree in Anthropology from Bryn Mawr (1978), Ellen took a Law Degree in International Law and Human Rights from Boalt Hall Law School (University of California at Berkeley) in 1985.
Ellen’s persistent interest in Latin America continued as professional work with Amnesty International (1979-81), in Washington, D.C., and in San Francisco.
She later headed the California office of Human Rights Watch (1989-94), where she conducted research and published on little-known but extensive human rights abuses in Mexico, and she was co-counsel in two groundbreaking human rights cases in U.S. courts, against the infamous Philippine dictator Ferdinand Marcos and Argentine General Suarez-Mason.
Moving with her family to Westborough, Massachusetts, in 1994, she helped to set up and then served as Executive Director of the Center for Human Rights and Conflict Resolution at the Fletcher School of Law and Diplomacy at Tufts University, taught international law. human rights, and mediation at Tufts, Harvard and the University of Massachusetts, and wrote widely. One of her students, now a professor at Occidental College, recalled how

warm and desirous she was of connecting to students amid the formal Fletcher iciness, a marvelous force of nature.

Ellen was asked to become Executive Director of Cultural Survival in 2004, where she increased the participation of indigenous people on the Board of Directors and Program Council, while steering the organization away from local development projects to broad human rights initiatives. Ellen said:

Development work like building schools, digging wells, and providing services is what governments should be doing. Our work is to make sure governments live up to their obligations.

One of her colleagues wrote,

It would be difficult to quantify Ellen’s ferocious passion for justice. Her zeal and natural warm-heartedness combined with a legal rigor that made her a truly formidable advocate.

There was much of such personal and professional praise. But, perhaps the most encompassing and, for Ellen, meaningful compliment came from Stella Tamang, a Nepalese tribal leader and friend:

To Ellen, my Kalyana Mitra,
In Buddhism Kalyana means Wellbeing and Mitra means friend. Kalyana Mitra therefore means friends who always think about their wellbeing. You have been such wonderful friend, a constant support during the problems I was facing about the political problem back in Nepal. We also talked about family, our children, and life. I am blessed to have a friend like you. We believe that if a person has done good Karma, he or she gets to meet with wonderful people, and you are the one for me...

And Ellen was not a Buddhist. Ellen is survived by her husband, Theodore Macdonald, an anthropologist previously with Cultural Survival and now with Harvard University, and her two children from a previous marriage, David and Julia Randall, now studying at the University of Massachusetts and Harvard, respectively. Her cat, Misty, and dog, Churi, are well taken care of. Her friends, among them many women human rights lawyers, are grateful to her for her wise counsel and unflagging dignity. All are thankful to their Kalyana Mitra.

Uruguay Supreme Court annuls amnesty law, as accountability continues in Latin America

The Uruguayan Supreme Court made Uruguay the second country in Latin America – after Argentina – to formally annul the amnesty law passed to protect members of the security forces from accusations that they committed torture, disappearance and summary execution during the period of military control (1973-85).
The action taken on Monday by Uruguay's highest court (photo credit) came as the legislature was considering a bill to do the same thing.
Last year, the same court had struck down much of the 1986 amnesty law – Ley de Caducidad de la Pretensión Punitiva del Estado – in a single case involving the 1974 killing of Nibia Sabalsagaray (below left), a literature professor. The current ruling made that decision applicable in all cases. The court’s decision in the earlier case held that Articles 1, 3 and 4 of the amnesty law was unconstitutional because it:
► Violated the separation of powers;
► Did not constitute a valid amnesty; and
► Violated Uruguay’s human rights commitments.
These articles suspended criminal prosecution (Article 1), and gave the executive branch the power to decide whether a particular crime or episode fell within the scope of the amnesty (Articles 3 and 4), thus violating principles of separation of powers and the independence of the judiciary.
In addition, the unanimous decision found that the law interfered with the rights of victims to truth and to judicial process. The court cited the role of international law in Uruguay’s legal system and precedents from neighboring Argentina, as well as the inter-American human rights system’s Commission and Court, in reaching its decision.
What makes the Uruguayan decision particularly interesting is that the Uruguayan public has –twice – rejected a call to overturn the amnesty law via plebiscite.
Uruguayan law allows laws to be overturned if a large number of people call for a plebiscite. Although civil society groups in 2009 managed to gain the required number of signatures to put the issue on the ballot, it lost narrowly. Thus, the Court was acting to uphold legal principles, even in the face of contrary public opinion.
It is unclear how many additional cases will result, since less than 200 forced disappearances or killings took place in Uruguay; most Uruguayans suspected of leftist activity were killed or disappeared in neighboring Argentina. If the courts start taking up torture cases, that will change, since a large number of Uruguayans were tortured during the years of military control. Some of the top leaders of that period, including former presidents Juan Bordaberry and Gregorio Alvarez (right), are already in prison based on earlier cases found not to come within the ambit of the amnesty law. (photo credit)
The court’s decision brings Uruguay into line with its neighbors.
Argentina annulled its amnesty law in 2005, and trials are under way regarding events in the most notorious secret detention centers.
Chile has still not formally annulled its amnesty law. But Chilean courts have not applied the amnesty law to crimes committed by the military or police during the Pinochet regime for several years now.
Brazil remains the sole holdout.
Even though the number of violations in Brazil during the years of dictatorship were relatively low, military officials have taken the position that any effort to bring cases to court is an affront to their institutional role, and would reopen unfinished debates about the legality of the 1964 coup. The Brazilian Supreme Court decided to uphold the amnesty law on grounds that the courts could not interfere with a political decision and that human rights commitments were only acquired subsequent to the crimes and so could not be the basis for overturning the law. Even so, the Brazilian government has paid reparations to victims and survivors, has held investigations, and is discussing a truth commission. Civil society groups and the Caravana da Anistia, the Amnesty Commission within the Justice Ministry, will be pushing the new Brazilian President Dilma Rousseff to take a fresh look at the issue – especially given the increasingly solid regional consensus that formal amnesties, at least, are a thing of the past.

U.S. Contact Point & corporate accountability

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

Corporate accountability for environmental and human rights abuses abroad is often elusive.
As IntLawGrrls Rebecca Bratspies and Naomi Roht-Arriaza have posted (here and here), recent court rulings now limit the scope of the Alien Tort Claims Act in some jurisdictions, at least temporarily. Non-judicial, ‘soft law’ mechanisms thus have become even more important.
Among the latter accountability mechanisms is the U.S. National Contact Point, or NCP, an office of the Department of State created to take complaints regarding corporate compliance with the Guidelines for Multinational Enterprise issued in 2008 by OECD, the Organization for Economic Co-Operation and Development.
The United States is required to maintain the NCP to resolve disputes about the OECD Guidelines, which cover human rights, environmental, labor, and consumer issues, as well as other topics. Like other countries' NCPs, the U.S. office is tasked not only with assisting to resolve disputes about corporate compliance with the Guidelines, but also with issuing Final Statements about compliance at the end of the process. In the language of international financial institution accountability mechanisms, this gives NCPs both a problem-solving and compliance review function.
To date, the U.S. NCP has never assisted in the resolution of a single case. In contrast, as IntLawGrrl Christiana Ochoa has posted in other countries like the United Kingdom, NCPs have successfully participated in the resolution of major global issues. If transformed, the U.S. NCP could be a valuable tool for communities around the world. Among those communities are clients of my organization, Accountability Counsel, which represents persons harmed by U.S.-headquartered multinational enterprises.
Over the past year, Accountability Counsel has led a coalition of civil society groups to reform the U.S. NCP. Our direct talks spurred the office to published its rules of procedure. As we had anticipated, those rules:
► Fail to meet basic standards for transparency and independence;
► Lack details sufficient to result in a predictable process; and
► Are unlikely to lead to effective results.
The official State Department review is under way, with a new policy governing the U.S. NCP is expected sometime in 2011. In Washington, a public meeting will be held today, November 2, and comments on the U.S. NCP will be accepted at input@state.gov until this Friday, November 5.
Accountability Counsel already has submitted its comments to the State Department regarding suggestions for reform of the U.S. NCP. Based on our work with similar mechanisms at the World Bank Group, the regional development banks, and study of other NCPs, we demonstrated that key elements that are needed to bring this accountability mechanism to the ‘best practice’ level that civil society groups have worked decades to create. Our recommendations focus on:
► Increasing transparency;
► Setting timelines and rules of procedure;
► Providing for review of decisions; and
► Monitoring and enforcement in the event of a finding of non-compliance.

Accountability Counsel is also working on these issues as a member of the State Department’s Advisory Committee on International Economic Policy, which will issue a report with recommendations for reform. Similarly, our group has worked with the United Nations' Special Representative on Business and Human Rights, Professor John Ruggie (prior IntLawGrrls posts), to create a page on the Business and Society Exploring Solutions site for the posting of comments and for debate about the U.S. NCP. The effort is aimed at improving transparency around this review.

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.

On September 11

On this day in ...
... 2001, at a special session in Lima, Peru, the General Assembly of the Organization of American States adopted the Inter-American Democratic Charter. (image credit) Binding on the 34 member states of the OAS, the Charter details what democracy entails and how it is to be defended. As IntLawGrrl Naomi Roht-Arriaza then posted, the Charter figured in events surrounding the June 2009 ouster by Honduran armed forces of democratically elected President Manuel Zelaya. Zelaya remains in exile, and increasingly, states in the Americas are recognizing the Honduran government that replaced him.


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

Positive Complementarity? The Case of CICIG in Guatemala

(Another in IntLawGrrls' series of posts in connection with the Kampala Conference)

As the International Criminal Court Review Conference winds down in Uganda, it is worth considering how national legal systems might actually get to the point when they are no longer notoriously “unwilling or unable,” to quote Article 17 of the Rome Statute, to prosecute serious crimes involving violations of human rights.

If it’s not the ICC’s job, then how could it happen?
Take the case of Guatemala.

Over 200,000 people, most of them Mayans, were killed during the 1960-1996 series of military dictatorships. (The case on which we've posted, concluding that this constituted genocide, can be found here). Since then, Guatemala has turned into a poster child for impunity: not only have most cases from the internal armed conflict period never been investigated or tried, but drug and human trafficking and fraudulent child adoption rings run rampant, and violence against women has led to over 4000 deaths of women and girls since 2000.

Less than 2% of the cases ever make it to trial. It got so bad that after much pressure from civil society, a U.N-sponsored initiative called the Commission Against Impunity in Guatemala (known by its Spanish initials as CICIG) was created in 2008 to help the national prosecutors’ office improve its ability to investigate and try cases. CICIG’s mandate is to investigate the existence of illicit security forces and clandestine security organizations that commit crimes, and to identify their illegal group structures (including links between State officials and organized crime), activities, modes of operation, and sources of financing. CICIG is to support the national Prosecutors’ office, act as a third-party prosecutor, and recommend policies to the government to strengthen the justice system. It does not, however, have the power to initiate its own prosecutions, a power the courts have held is exclusive to the Prosecutors’ Office. Thus, if the prosecutor is corrupt or ineffective, CICIG’s only recourse is through public pressure.

Nonetheless, the mechanism constitutes an interesting and innovative half-way house between technical assistance and a full-fledged hybrid tribunal.
Apparently, the mechanism had some modest success, and therefore stirred up quite a bit of opposition. Right-wing commentators began a campaign against the head of the Commission, Spanish prosecutor Carlos Castresana, accusing him of having an affair with a staffperson. But the last straw came last week, when President Alvaro Colom appointed as prosecutor a man named Conrado Reyes, accused by Castresana of having ties to organized crime. The U.N.-appointed anticorruption commissioner, Castresana, resigned in fury, telling the press that his recommendations had been ignored, and that the selection process for the new prosecutor had been itself influenced by criminal elements. Civil society organizations lamented the end of CICIG, and the new triumph of impunity.
And now the other shoe has fallen.
Today the Constitutional Court invalidated the whole selection process, told President Colom to start all over again, and held that any acts carried out by Reyes were invalid. Colom gratefully accepted the way out provided by the Court, and Reyes resigned.

While Castresana has not rescinded his resignation, a new Commissioner will find his or her hand strengthened by the outcome. Whether a new Commissioner can continue to prod, and whether a new Prosecutor will take seriously the need to put in place staffers who actually want to bring cases (whether for historical war-related crimes, femicides or organized crime activities) are still open questions.
But for now, at least, this type of international intervention in national legal systems, while not exactly “positive complementarity” about which Margaret deGuzman posted yesterday, might bear looking at closely by those concerned with making justice effective nationally.

IntLawGrrls at ICC Review Conference

(1st in a series of IntLawGrrls' Kampala Conference posts)

The Review Conference of the Rome Statute of the International Criminal Court will open in Kampala, Uganda, this Monday, May 31, and will run until June 11. This is the first Review Conference since the adoption of the Rome Statute in 1998.
As detailed in the provisional work programme, the Review Conference will begin with a plenary, with statements by the current UN Secretary-General, Ban Ki-moon, and the former UN Secretary-General, Kofi Annan. The President of Uganda will also make a statement, as will the President of the ICC’s Assembly of States Parties, the President of the ICC and the ICC’s Prosecutor. These statements will be followed by country statements, including statements by many of the 111 States Parties.
On the evening of June 1, discussions on the subject of IntLawGrrls' year long series, the crime of aggression, begin. So do discussions on the Belgian proposal to amend the war crimes provision to prohibit the use during non-international armed conflict of certain weapons (poison or poisoned weapons; asphyxiating, poisonous or other gases; and bullets which expand or flatten easily in the human body).
On June 2 and 3, there will be a series of stocktaking exercises, evaluating the ICC’s past, current and future impact on victims and affected communities, as well as peace and justice issues, and the application of the ICC’s complementarity and cooperation provisions.
The remainder of the Review Conference will be dedicated to discussions on the crime of aggression, the Belgian proposal, strengthening the enforcement of sentences, and the potential deletion of article 124 (a transitional provision permitting a State to make a declaration excluding the Court’s jurisdiction over war crimes for seven years).
In addition, civil society will hold a wide variety of side-events, taking place in the People’s Space. One that we are very excited about is the Women’s Court, to be held all day on June 1. It is being organized by the Hague-based nongovernmental organization Women’s Initiatives for Gender Justice. At this Court, women’s rights activists from Uganda, Democratic Republic of the Congo, Central African Republic and Sudan will speak. (image at right courtesy of the Women's Initiatives)
Approximately 2000 state representatives and representatives of nongovernmental and intergovernmental organizations will be in attendance at the Review Conference, including a number of our very own IntLawGrrls. Beth Van Schaack will serve as an academic advisor on the U.S. delegation (her series posts here, here, and here), and yours truly will serve as an academic advisor on the Canadian delegation. A new guest, Pam Spees, and I will contribute a joint post (here) in honor of our recently departed friend and mentor, Rhonda Copelon, now an IntLawGrrls foremother. In addition to this and to my solo posts (here, here, here, here, and here), IntLawGrrls planning to post from Kampala include Susana SáCouto (here) and Kelly Askin. Another new guest, our colleague Leila Nadya Sadat, will contribute posts from Kampala (here and here). IntLawGrrls guests/alumnae will also contribute: Margaret deGuzman will post about the stocktaking complementarity discussion (here; additional post here), and Brigid Inder, Kate Orlovsky and Katrina Anderson will blog (here) about the Women’s Court and other Women’s Initiatives events. From elsewhere in our world, IntLawGrrl Diane Marie Amann will write "Against aggression" (here; additional posts here, here, here, here, here, and here), IntLawGrrl Kathleen A. Doty will discuss the ICC and Darfur (here), and IntLawGrrl Naomi Roht-Arriaza will examine a "positive complementarity" analogue in Guatemala (here). Guests/alumnae Pamela Yates will tell us about the work Skylight Pictures is doing in Kampala (here), and Carmen Márquez-Carrasco will provide a post (here) about the European Union and the ICC.
More soon from (and about) Kampala ...

Spring reading, of sorts

It is Spring, when a law prof's fancy lightly turns to thoughts of...
... you know ...
... which casebook she'll assign next semester.*

That thought in mind, we note 2 promising new intlaw texts:
► The 1st is The International Legal System: Cases and Materials (6th ed. 2010) (below, far right).
Initially published in 1973, this Foundation Press standard has a whole new authors' lineup: Naomi Roht-Arriaza (California-Hastings) and Mary Ellen O'Connell (Notre Dame), IntLawGrrl and IntLawGrrl guest/alumna, respectively, along with Richard F. Scott (Thomas Jefferson). The table of contents promises an organized and varied survey of public international law, in general and in specific areas like the environment and the economy, human rights and the use of force. This 'Grrl, who's teaching intlaw in the fall, plans to give it a try.
► The 2d is International and Transnational Criminal Law (2009) (near right).
This 1st edition Aspen publication is the work of 3 of our colleagues, all affiliated with Georgetown Law: Julie R. O'Sullivan, David Luban, and David P. Stewart. It joins others in the ICL field, including the casebook, now in its 2d ed., co-authored by IntLawGrrl Beth Van Schaack.
Check 'em out.

* Apologies to Tennyson. Only Jackson Browne would've said love. (credit for 1922 portrait, La Liseuse, by Félix Valloton)

Arrests of Guatemalans in U.S. accused of massacre: beginning of a new trend?

Yesterday the U.S. Immigration and Customs Enforcement (ICE) and the Justice Department announced that they had arrested Gilberto Jordán, a former member of an elite army unit known as kaibiles, for lying on his immigration forms about his participation in a 1982 massacre. Two more former officials had also settled in the U.S. and are being sought. A fourth man, Santos Lopez Alonzo, pled guilty to illegally entering the country; he was fined $10 and is due to be deported.
The massacre, in a remote northern village known as the Dos Erres, was part of a campaign by the army against perceived opposition to military rule. While most of the victims of the military campaigns were Mayan, Dos Erres was a mixed settlement of recent immigrants to the zone. They had left insufficient land plots in the highlands to move to a settlement on the agricultural frontier, but in December 1982 they were targeted as potential guerrilla sympathizers. The army surrounded the town, rounded up the townspeople and divided them into groups of men and women. As Gilberto Jordán admitted to the authorities, he started the killing by throwing a baby down the town well, still alive. Next the women were raped, killed and thrown down the well, followed by the men. In all, there were 251 villagers killed. (credit for photo above right of clothing of children killed in the Dos Erres massacre)
Jordán had been living in the U.S. since 1999, and had become a naturalized citizen without mentioning his participation in the massacre in his application. The other two suspects are Jorge Vinicio Sosa-Orantes of Riverside, California, and Pedro Pimentel-Rios of Santa Ana, California. Sosa-Orantes was a lieutenant at the time. In the U.S. he worked as a martial arts instructor. Pimentel-Rios, accused by witnesses of raping young girls before killing them, moved to the U.S. after a career that included a stint at the U.S. School of the Americas. More on the defendants can be found here. The Dos Erres massacre has become an emblematic case of Guatemala’s culture of impunity. It’s not that there’s a lack of evidence: two other elite soldiers confessed and provided eyewitness evidence in the case, and one survivor who, at age 5, witnessed his family’s murder before being taken as a domestic slave by López Alonzo. That man, Ramiro Cristales, has agreed to testify in the case and, along with the repentant soldiers, is now in hiding. The problem is that the case has languished in the Guatemalan courts for years. Every time there was any movement, lawyers for the defendants would file motions, called amparos, that had the effect of paralyzing the proceedings. One of the claims was that the case was covered by the country’s 1996 amnesty law.
Fed up, lawyers for family members of those killed went to the Inter-American Commission for help. The Commission found that Guatemala had violated the rights of the victims to redress and judicial process, and the Court, in 2010, agreed. It ordered the Guatemalan state to quit stalling and remove legal obstacles to prosecution, and to press forward with exhumations of the remains of the dead and other pre-trial procedures. In February, 2010, the Guatemalan Supreme Court held that the amnesty law did not apply, and that the lower courts should refuse to countenance any more dilatory motions and should get on with the business of amassing evidence and hearing the case. Since then, the Prosecutors’ office has announced that it is moving forward on the case, although a highly-contested process for election of the chief prosecutor may complicate things.
In this context, U.S. authorities have a number of choices for dealing with those arrested. They could, as is usually the case when those suspected of war crimes, torture, genocide or crimes against humanity, simply deport those who are non-citizens back to Guatemala. Unless such deportations are coordinated carefully with the Guatemalan prosecutors’ office so that the suspects are detained on arrival in Guatemala, however, deportation is simply a get out of jail card, as the suspects will disappear and never be tried. This has been the unfortunate outcome in the past. Or they could arrange for deportations to be carefully coordinated and get assurances from Guatemalan prosecutors that they will take over prosecution under international standards. Another option, especially for naturalized U.S. citizens, is to charge them with visa fraud for non-disclosure of their actions. This carries a potential ten-year prison term, at which point they could be deported back to Guatemala. This provision is already being used to strip former Salvadoran Defense Minister Garcia of his citizenship. While not ideal in terms of either the symbolic value or the length of sentence, fraud charges are no doubt easier to prove and less fraught than the underlying crimes.
Finally, U.S. authorities could charge the suspects with the underlying crimes and try them here. U.S. law provides jurisdiction for torture, genocide, slavery or recruitment of child soldiers when the offender is found in the U.S., no matter what his nationality or where the crime occurred. The section on torture was used to prosecute “Chuckie” Taylor, former Liberian president Charles Taylor’s son, who in 2009 was convicted and sentenced to 97 years in prison. It has not been more widely used because prosecutors have been loath to take on cases where the acts occurred prior to 1994, when the statute was enacted. As a matter of international law, this interpretation is incorrect: according to Article 15 of the International Covenant on Civil and Political Rights, there is no ex post facto problem when the behavior at issue has been criminalized in national or international law. Genocide, slavery and systematic torture have long been recognized as international crimes.
At this point, whether trial in Guatemala or in the U.S. is the best alternative depends on how seriously the Guatemalan prosecutors’ office seems to be in matching actions to their professed intentions to prosecute the case at home. The U.S. should not give up the suspects without negotiating serious guarantees that they won’t just be mysteriously “sprung” from a local jail. If the choice is to prosecute here for visa fraud, U.S. authorities should seek ways to put the underlying facts of the massacre before the court, and to allow massacre victims some degree of participation and observance of the proceedings. The U.S. should also seek to collaborate with the Spanish judicial authorities, who are investigating the related case of genocide in the Spanish courts. Information and witness sharing, especially about military methods, training and objectives, could be useful in both cases. The Dos Erres case could become a symbol not only of horror, but of international prosecutorial and judicial cooperation and of a real commitment to finally make the U.S. “no safe haven” for war criminals.

Women @ ASILquater

As we have each year since our founding (here, here, and here), IntLawGrrls is proud today to highlight women who will speak March 24-27 at the forthcoming annual meeting of the American Society of International Law.
This 104th gathering of the Society, entitled International Law in a Time of Change, kicks off with the Grotius Lecture by Antony Anghie at 4:30 p.m. on March 24, features a keynote address by State Department Legal Adviser Harold Hongju Koh at 5 p.m. March 25, the Manley O. Hudson Medal Lecture by Edith Brown Weiss (right)at 4:15 p.m. March 26, a keynote by Canada's Chief Justice, Beverley McLachlin (below left), at 5:30 March 26, and runs through March 27. All events will take place at the Ritz Carlton Hotel, 1150 22d Street, N.W., Washington, D.C. (Details and registration here.)

Delighted to see from the program that, once again, there's much diversity in topics and presenters. Virtually all panels again have at least 1 woman participating, and that many have more (those few that do not include women do not, alas, receive mention in this list). Kudos to the Program Committee Co-Chairs, IntLawGrrls' own Hari M. Osofsky and our colleagues K. Russell LaMotte and Allen S. Weiner! Particularly proud that so many persons featured are IntLawGrrls or IntLawGrrls guest alumnae -- not only Planning Committee members Rebecca Bratspies, Chimène Keitner, Hope Lewis, and Beth Van Schaack, but also, of course, Lucy Reed (right), who will conclude her 2-year tenure as ASIL President at the meeting, to be succeeded by our colleague David D. Caron.
Without further ado, here's this year's honor roll:

Thursday, March 25, 9-10:30 a.m.
► "Empirical Approaches to International Law": Elizabeth Andersen (ASIL Executive Director), IntLawGrrl Elena Baylis (Pittsburgh), Susan Franck (Washington & Lee), Janet Levit (Tulsa), and panelists; Tonya Putnam (Columbia), moderator.
►"New Thinking on Social and Economic Rights: Honoring Virginia Leary," an IntLawGrrls foremother: IntLawGrrl guest/alumna Gay McDougall (United Nations) (below, far right), Mona Rishmawi (United Nations), and Alicia Ely Yamin (Harvard), panelists; IntLawGrrl guest/alumna Barbara Stark (Hofstra), moderator.
►"International Human Rights Law, Foreign Sovereign Immunity, and National Courts": Rosanne van Alebeek (Amsterdam), Sarah H. Cleveland (Counselor to State Department) (near right), panelists.
►"Getting to Closure: Winding Up the International and Hybrid Criminal Tribunals": Tracey Gurd (Open Society Justice Initiative) and Anne Joyce (State Department), panelists; IntLawGrrl guest/alumna Valerie Oosterveld (Western Ontario), moderator.
►"Risk, Science and Law in the WTO": Tracey Epps (New Zealand Ministry of Foreign Affairs & Trade), panelist.
►"New Voices I": Dionysia Avgerinopoulou (Columbia), IntLawGrrl guest/alumna Máiréad Enright (Cork), and Alexandra R. Harrington (McGill), panelists; Edith Brown Weiss (Georgetown), moderator.

Thursday, March 25, 10:45 a.m.-12:15 p.m.
►"Providing Global Public Goods Under International Law": Anne van Aaken (St. Gallen, Max Planck Institute), Victoria Henson-Apollonio (Consultative Group on International Agricultural Research), Inge Kaul (United Nations), and Sabrina Safrin (Rutgers-Newark), panelists; IntLawGrrl Rebecca Bratspies (CUNY), moderator.
►"Extraterritoriality: Bagram and Beyond": Sabine Nölke (Canadian Department of Foreign Affairs), panelist; IntLawGrrl guest/alumna Chimène Keitner (California-Hastings), moderator.
►"Hot Topics in GATS and Human Rights": Jane Kelsey (Auckland) and Marion Panizzon (World Trade Institute), panelists.
►"Teaching International Law: Lessons from Clinical Education": Lusine Hovhannisian (Public Interest Law Initiative) and Deena Hurwitz (Virginia), panelists.

Thursday, March 25, 12:30-2:30 p.m.
► Women in International Law Interest Group Luncheon: Dinah Shelton (George Washington; Inter-American Commission on Human Rights) (left), speaker.

Thursday, March 25, 1-2:30 p.m.
► "Afghanistan, Pakistan and the Modern Challenges to Use of Force Law": Elizabeth Rindskopf Parker (Pacific McGeorge) and Hina Shamsi (NYU), panelists; IntLawGrrl guest/alumna Mary Ellen O'Connell (Notre Dame), moderator.
► "Evolving Intersections Between Treaty Law and Domestic Law": IntLawGrrl Johanna E. Bond (Washington & Lee) and Mallory Stewart (State Department), panelists.

Friday, March 26, 9-10:30 a.m.
► "International Environmental Justice: Possibilities, Limits and Tensions": Deepa Badrinarayana (Chapman) and Jennifer M. Green (Minnesota), panelists.
► "Corruption and Human Rights": Leslye Obiora (Arizona), panelist.
► "International Law 2.0": Beth Simone Noveck (Office of Science and Technology) and Renee C. Redman (Iran Human Rights Documentation Center), panelists; IntLawGrrl guest/alumna Molly Beutz Land (New York), moderator.
► "New Voices II": Neha Jain (Max Planck Institute for Foreign and International Criminal Law), Kimberley N. Trapp (Cambridge), and IntLawGrrl guest/alumna Julie Veroff (Oxford), panelists.

Friday, March 26, 10:45 a.m.-12:15 p.m.
► "Non-State Actors and the Emerging Climate Change Law Regime:" Elizabeth Burleson (South Dakota) and IntLawGrrl Naomi Roht-Arriaza (California-Hastings), panelists; Jaye Dana Ellis (McGill), moderator.
► "Updating the Restatement": Oona Hathaway (Yale) and 9th Circuit Judge Margaret McKeown (left), panelists.
► "Same or Different? Fighting Terrorists in the Bush and Obama Administrations": IntLawGrrl Diane Marie Amann (California-Davis) and Susan Baker Manning (Bingham McCutchen), panelists.

► "The Rising Use of International Law by African Judiciaries": Erika George (Utah), panelist; Angela M. Banks (William & Mary), moderator.
► "Preventing the Next Financial Crisis: Coordination and Competition in Global Finance": Barbara C. Matthews (BCM International Regulatory Analytics), panelist.

Friday, March 26, 12:45-2:15 p.m.
► "Reform and Restructuring at International Financial Institutions": Anne-Marie Leroy (General Counsel, World Bank), panelist.
► "Theoretical Insights at the Margins of International Law: CLS Meets TWAIL": Celina Romany (Puerto Rico Bar Association), panelist; Jeanne M. Woods (Loyola-New Orleans), moderator.
► "Family, Sex, and Reproduction: Emerging Issues in International Law": Joanna N. Erdman (Toronto), Katherine Franke (Columbia), Laura Katzive (Wellspring Advisors), and Kathleen Lahey (Queen's-Ontario); Nancy Northup (Center for Reproductive Rights), moderator.
► "War and Law in Cyberspace": Eliana Davidson (Defense Department) and Robin Geiss (International Committee of the Red Cross), panelists.
► "Implications of the Global Financial Crisis on International Trade and Investment Regimes": Elizabeth Trujillo (Suffolk), panelist.

Friday, March 26, 2:30-4 p.m.
► "Bottom-Up Strategies for Survival and Resistance: Examples from Latin America and Elsewhere": Chantal Thomas (Cornell), panelist; Berta Esperanza Hernández-Truyol (Florida), moderator.
► "Transnational Legal Dialogue, a Human Rights-Based Hierarchy, and the Creation of Norms": Jutta Brunnée (Toronto), IntLawGrrl guest/alumna Patricia M. Wald (former Judge, International Criminal Tribunal for the former Yugoslavia) (right, and Melissa A. Waters (Washington University), panelists; Erika de Wet (Amsterdam and Pretoria), moderator.

► "Remembering Tom Franck: What He Taught Us about the Recourse to Force": Rosalyn Higgins (former President, International Court of Justice) (far left), moderator.

► "ICSID in the Twenty-First Century: An Interview with Meg Kinnear" (Secretary-General, World Bank's International Centre for Settlement of Investment Disputes) (near left).

Friday, March 26, 4:15-5:15 p.m.

► "Hudson Medal Lecture": Medal Winner Edith Brown Weiss (Georgetown).

Friday, March 26, 5:30-6:30 p.m.

► ""Keynote": Chief Justice Beverley McLachlin, Supreme Court of Canada

Saturday, March 27, 9-10:30 a.m.

► "The Road Forward from Copenhagen: Climate Change Policy in the 21st Century": Ann Petsonk (Environmental Defense Fund), panelist.

► "The ICC Review Conference and Changing U.S. Policy Towards the Court": Olivia Swaak-Goldman (International Criminal Court), panelist; Leila Nadya Sadat (Washington University), moderator.

► "China and East Asia on the World Stage": Deborah Brautigam (American) and Saadia Pekkanen (University of Washington), panelists; Julia Ya Qin (Wayne State), moderator.

Saturday, March 27, 10:45 a.m.-12:15 p.m.

► "Advancing Women's Rights Internationally": Cathy Albisa (National Economic and Social Rights Initiative), Fionnuala D. Ní Aoláin (Minnesota) and Rebecca Cook (Toronto),panelists; Kamari Maxine Clarke (Yale), moderator.

► "Treaty Bodies and Beyond: The Practice and Process of Translating International Norms into Domestic Law": Susan Deller Ross (Georgetown) and Ruth Wedgwood (John Hopkins; Human Rights Council) (right), panelists; Celia Goldman, moderator.