Read On! ICL Handbook

(Delighted to welcome back alumna Nadia Bernaz, who contributes this Read On! guest post)

It is a pleasure to come back on IntLawGrrls (my previous posts are here and here) to announce the Routledge Handbook of International Criminal Law, published last month.
I co-edited the Handbook with Professor William A. Schabas, Director of the Irish Centre for Human Rights at the National University of Ireland, Galway. We wanted to put together a book that would provide a reader new to the area with an introduction to this fast-growing area of law. But, at the same time, we did not want to edit a mere textbook. The whole idea was to give our contributors (who include a number of IntLawGrrls besides myself: Fiona de Londras, Leila Nadya Sadat, Margaret deGuzman, and Nancy Amoury Combs) the freedom to express their opinions, as scholars, on the areas they were asked to write on.
We are really happy with the results as our contributors have manage to deliver concise, original and provocative papers which, combined together in one single publication, make this book greatly relevant to students, scholars and practitioners working in the field.
Here is the table of contents:

1. Introduction, William Schabas and Nadia Bernaz

Part 1: Historical and Institutional Framework
2. Trial at Nuremberg, Guénaël Mettraux
3. The Tokyo Trial, Neil Boister
4. The Trials of Eichmann, Barbie and Finta, Joseph Powderly
5. The Ad Hoc International Criminal Tribunals: Launching a New Era of Accountability, Michael P. Scharf and Margaux Day
6. The International Criminal Court, David Scheffer
7. Hybrid Tribunals, Fidelma Donlon

Part 2: The Crimes
8. Genocide, Paola Gaeta
9. Crimes Against Humanity, Margaret M. deGuzman
10. War Crimes, Anthony Cullen
11. Aggression, Nicolaos Strapatsas
12. Terrorism as an International Crime, Fiona De Londras
13. Drug Crimes and Money Laundering, Robert Cryer

Part 3: The Practice of International Tribunals
14. Understanding the Complexities of International Criminal Tribunal Jurisdiction, Leila Sadat
15. Admissibility in International Criminal Law, Mohamed M. El Zeidy
16. Defences to International Crimes, Shane Darcy
17. Participation in Crimes in the Jurisprudence of the ICTY and ICTR, Mohamed Elewa Badar
18. International Criminal Procedures: Trial and Appeal Procedures, Hakan Friman
19. Sentencing and Penalties, Nadia Bernaz
20. State Cooperation and Transfers, Judge Kimberley Prost
21. Evidence, Nancy Combs

Part 4: Key Issues in International Criminal Law
22. The Rise and Fall of Universal Jurisdiction, Luc Reydams
23. Immunities, Rémy Prouvèze
24. Truth Commissions, Eric Wiebelhaus-Brahm
25. State Responsibility and International Crimes, Eric Wyler and León Castellanos-Jankiewicz
26. International Criminal Law and Victims’ Rights, Carla Ferstman
27. Amnesties, Louise Mallinder
28. International Criminal Law and Human Rights, Thomas Margueritte
29. Conclusion, William Schabas and Nadia Bernaz

Human Rights & Business: Beyond Corporate Social Responsibility

(Delighted to welcome back alumna Nadia Bernaz, who contributes this guest post)

With BP making the headlines with the industrial disaster in the Gulf of Mexico (prior IntLawGrrls posts), many have been asking the question of how and whether giant corporations can be made accountable for their actions.
The fact is that a combination common in the Western world -- tighter laws governing pollution and higher standards -- has not worked. Rather, it has often meant that multinational corporations, which no longer have to respect national boundaries, move elsewhere, where standards are lax and land and labour is cheap.
The growing movement for volunteerism among corporate entities based on corporate social responsibility has had some benefit: it has highlighted the social responsibility that companies have when they invest in a given area. (Prior IntLawGrrls posts) However, it has also allowed many corporations to engage in green-washing their image through the display of sophisticated policies printed in expensive brochures.
A new story that has attracted some attention recently concerns the activities of the Vedanta mining concern, one of Britain’s largest companies, who have built an aluminium producing plant in Orissa, in the east of India. Vedanta now wishes to mine bauxite in the region in order to get the plant running at full capacity.
Orissa is one of India’s least developed states, with some of the poorest people in the world, with many indigenous tribes among them. It has been known for a long time that this part of India holds significant deposits of mineral resources, but with India speeding towards accelerated development, these resources have suddenly become crucial to sustaining growth.
Vedanta maintain that their mining activities would bring jobs and increasing wealth to the local population. However, the indigenous Dongria Kondh tribe strongly oppose mining in their sacred mountains, and are concerned about the environmental impact of this activity in the region. An Amnesty International report issued in February supports their view.) The tribal members argue that they do not want to change their ancestral way of life, and have no interest in the type of development Vedanta has promised them. (credit for photo by Parth Sanyal /Reuters, captioned "A tribal woman with her child near the mining site of the alumina refinery in Orissa state")
From an international legal perspective, the Vedanta story raises several important issues:
► The increased power of transnational corporations has made the seeking of accountability for their actions extremely difficult in environments where they may be able to operate freely, and often with the complicity of the government.
► While globalisation itself cannot be regulated, it is clear that new norm creation activities have been taking place in international law, not least with the presence of the World Trade Organisation.
► However, little of the ethos concerning human development and poverty alleviation feeds into these important discussions.
To address these challenges, my home institution, Middlesex University in London, England, has created an MA programme in Human Rights and Business. The course covers areas of law such as international human rights law and the law of the WTO, and explores the relevance of these areas to multinational corporations -- especially those corporations operating in emerging economies. The modules are deliberately human rights law-centred, and go significantly beyond the concept of corporate social responsibility. The programme itself is tailored for busy professionals with significant online content and class contact restricted to two days a month (Friday-Saturday). More information here.

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.

Guest Blogger: Nadia Bernaz

It's IntLawGrrls' great pleasure to welcome Dr. Nadia Bernaz (right) as today's guest blogger.
Nadia is a Lecturer in law at Middlesex University Business School in London, where she teaches Legal Method, Civil Liability, Contract Law, and the Criminal Justice System. She previously held a lectureship in human rights law at the Irish Centre for Human Rights, National University of Ireland, Galway. She holds a Ph.D. in public international law from Université Paul Cézanne, Aix-en-Provence, France.
Her publications include several articles on human rights law as well as a monograph, Le droit international et la peine de mort - International Law and the Death Penalty (2008), which was the subject of this book review in the August 2009 edition of Human Rights Quarterly.
A chapter she published recently, on the subject of the United States' role as a global actor in the debate about the death penalty, is the subject of Nadia's guest post below.
Nadia dedicates her work on the blog to Marie-Louise Giraud (1903-1943), whose Vichy-era life and death were depicted in a 1988 film, Une Affaire de femmes/Story of Women (below, with star Isabelle Huppert, as no digital photo of Giraud herself could be found online). Of Giraud, Nadia writes:

Marie-Louise Giraud was guillotined in 1943 and is one of the last women to have been executed in France. She possessed no medical skills, but performed 26 abortions. One led to the death of the pregnant woman. She received money to perform abortions and even rented rooms to prostitutes. As such, it is hard to view her as one of the great figures of women’s rights. However, I believe that all people have their darkest sides -- even the women and men who are said to be the most exemplary -- and that the quest for a morally irreproachable foremother is probably pointless. Interestingly, Giraud's ‘immorality’ was strongly emphasized during her trial, and at least partially explains the capital verdict against her.
Marie-Louise Giraud helped many women at a time when reproductive rights were nonexistent and she died, her body literally cut in half, because of this.

Today Giraud joins other foremothers on IntLawGrrls' list just below our "visiting from..." map at right.

Heartfelt welcome!

U.S. death penalty stance in global context

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

Since the reintroduction of the death penalty in 1976, 1,173 people have been executed in the United States, and 3,297 currently live on death row. For more liberal Europeans (a group I pride myself on belonging to), the fact that the United States retain the death penalty is at best puzzling, if not simply outrageous. Here is a country that has made the protection of individual rights one of its core values, and yet it continues to execute people despite the countless studies proving that:

► the death penalty does not deter potential criminals more than longterm imprisonment does; and

► the death penalty is administered primarily against those, now almost regardless of their own skin color, who have killed a white person.

Such anomalies, and many others, have been studied in the framework of an American exceptionalism with regard to human rights.

I examine these issues in "L’exceptionnalisme américain et les Nations unies : le cas de la peine de mort," an essay contained in a book published last month by Dalloz, entitled Exceptionnalisme américain et droits de l’homme. The volume was co-edited by 2 scholars at the Université Libre de Bruxelles, Dr. Ludovic Hennebel, Executive & Faculty Director of the university's Institut MagnaCarta, and Arnaud Van Waeyenberge, a researcher at its Centre Perelman de Philosophie du Droit. As a whole, the collection addresses a number of these U.S. anomalies in relation to issues such as abortion, foreign policy and international criminal justice.

In my contribution to the book, I chose to show how American exceptionalism has manifested itself in relation to the death penalty at the international, as opposed to the purely domestic level. (credit for map at top, in which states that have abolished the death penalty are in blue; those that have abolished for crimes not committed in exceptional circumstances like war, green; those that abolished in practice, orange; and those that permit the penalty for some crimes, red-brown)

My article focused on the key roles played by the United States: 1st, during the process of negotiation and adoption of various U.N. instruments that mention the death penalty, such as the International Covenant on Civil and Political Rights; and 2d, more recently, with respect to the United States' position regarding numerous resolutions on capital punishment made by the U.N. Commission on Human Rights.

Three main points can be made that help sum up the rather ambiguous stance of the United States:

► The United States does not support the movement towards the abolition of the death penalty initiated by a coalition of U.N. member states (European and Latin American states); as a result, on this issue the United States stands with countries with poor human rights records (China, Iran, etc.).

► Even as it has withheld support for abolition, the United States has let other countries -- namely Egypt and Singapore -- lead a pro-death penalty group.

► The United States' position on the death penalty -- even considering that it is relatively low profile -- is in tension with its traditional approach of championing human rights at the international level.

A majority of states no longer sees the death penalty as a purely criminal legal issue, but rather as a human rights one. For this reason, the United States no longe can simply remain silent. It will find itself constantly having to justify its position.