Go On! ASIL interest group session: Fact-Finding in International Criminal Law

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

International criminal law enthusiasts should be sure to attend this week's ICL Interest Group meeting at the American Society of International Law (ASIL) Annual Meeting in Washington, D.C., about which we've already blogged here, here, here, and here. The Interest Group, of which I am honored to serve as Co-Chair, is hosting a panel discussion with IntLawGrrl guest/alumna Nancy Combs, Cabell Research Professor of Law at William and Mary Law School (left), about her book, previously featured here. The session is Friday, March from 10:45 am - 12:15 p.m. (Full annual meeting schedule here).
The session will be moderated by the group's other Co-Chair, Linda Malone, the Marshall-Wythe Foundation Professor of Law and Director of the Human Security Law Program at William & Mary Law School (right).
The panel will also feature prepared remarks and questions by discussants drawn from our interest group, including:
►David Crane, Professor of practice at Syracuse University College of Law and founding Chief Prosecutor of the Special Court for Sierra Leone (left).
► Hannah Garry, Director of USC Law's International Human Rights Clinic (right).
► IntLawGrrl guest/alumna Saira Mohamed, Assistant Professor of Law at Berkeley Law (below left).
► Dan Saxon, formerly a legal officer of the Office of the Prosecutor of the International Criminal tribunal for the Former Yugoslavia and now a lecturer at Cambridge University.
► IntLawGrrl guest/alumna Meg DeGuzman, Assistant Professor of Law at Temple University Beasley School of Law (right).
► Marko Oberg, Legal Officer at International Criminal Tribunal for the Former Yugoslavia.

Women @ ASIL (5th ed.)

As we have each year since our founding ((here, here, here, here, and here), IntLawGrrls is proud today to highlight women who will speak March 23-26 at the forthcoming annual meeting of the American Society of International Law.
This 105th gathering of the Society, entitled Harmony and Dissonance in International Law, kicks off with the Grotius Lecture by Nobel Prizewinning economist Amartya Sen, for which our colleague Kim Lane Scheppele (Princeton) will serve as discussant. Also of note are: the annual WILIG luncheon, featuring IntLawGrrl Lucy Reed, immediate past President of ASIL; an opening plenary by Michael H. Posner, Assistant Secretary of State for the Bureau of Democracy, Human Rights, and Labor; and a plenary among several international judges. I'm especially excited about the Friday lunch dialogue featuring International Criminal Court Deputy Prosecutor Fatou Bensouda (left) -- wearing my hat as an ASIL vice president, I've been given the honor of serving as discussant/moderator for her talk. (photo credit)
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 many more. Particularly proud that so many persons featured are IntLawGrrls or IntLawGrrls alumnae!
Without further ado, here's this year's honor roll of Women @ ASIL:

Wednesday, March 23, 4:30-6 p.m.
► "The Global Status of Rights": Kim Lane Scheppele (Princeton) as discussant for Grotius Lecture by Amartya Sen.

Thursday, March 24, 11:15 a.m.-12:45 p.m.
► "The Supreme Court & Arbitration Law": Lorraine M. Brennan (JAMS International).
► "Legal Origins, Doing Business and Rule of Law Indicators: The Economic Evaluation of Legal Systems": Corinne Boismain (Université de Metz).
► "International Environmental Law Making and the International Court of Justice": Malgosia Fitzmaurice (University of London) (right), Natalie Klein (Macquarie), and IntLawGrrl guest/alumna Cymie Payne (Lewis & Clark) as panelists; Caroline Foster (Auckland) will moderate.
► "International Courts and Tribunals Interest Group: Judicial Selection": Eloïse Obadia (International Centre for Settlement of Investment Disputes) and Gabrielle Kirk McDonald (Iran-U.S. Claims Tribunal) (left).
► "Commissions of Inquiry into Armed Conflict, Breaches of the Laws of War and Human Rights Abuses: Process, Standards, and Lessons Learned": Agnieszka Jachec Neale (Essex) and Heidi Tagliavini (Swiss Ministry of Foreign Affairs).
►"New Voices I: Global Health, Trade & Common Resource Regimes": Lisa Clarke (Amsterdam), Erika Techera (Macquarie), and Margaret Young (Melbourne).

Thursday, March 24, 1-2:30 p.m.
► IntLawGrrl Lucy Reed (right), immediate past President of ASIL and a partner at Freshfields Bruckhaus Deringer LLP in New York, at the annual luncheon of WILIG, the Women in International Law Interest Group.
► "Fragmentation of International Legal Orders and International Law: Ways Forward?": Nele Matz-Lück (Max Planck Institute for Comparative Public Law and International Law, Heidelberg) as panelist; Ruti Teitel (New York Law School) will moderate.
► "Responding to Nuclear Security Challenges in a Fragmented World": Asli Ü. Bâli (UCLA) and Rose Gottemoeller (Assistant Secretary of State, Bureau of Verification, Compliance, and Implementation).
► "Seamlessness or Segmentation? International Economic Governance and European Sovereign Debt": Odette Lienau (Cornell) and Ann Misback (Federal Reserve Board).

Thursday, March 24, 3-4:30 p.m.
► "Annual Benjamin Ferencz Session: Integrating the Crime of Aggression into International Criminal law and Public International Law": Teresa McHenry (U.S. Department of Justice) and IntLawGrrl Beth Van Schaack (Santa Clara).
► "The Role of International Tribunals in Managing Coherence and Diversity in International Law": IntLawGrrls guest/alumna Andrea K. Bjorklund (California-Davis) and Valerie Hughes (Legal Affairs Director, World Trade Organization).
► "Dispute Resolution Interest Group: IS ICSID Losing Its Appeal...Again?": Andrea Menaker (White & Case LLP), moderator.
► "Espionage and the First Amendment After Wikileaks": Mary-Rose Papandrea (Boston College).

Thursday, March 24, 5-6:15 p.m.
► "Decision Making in International Courts and Tribunals: A Conversation": plenary keynote featuring numerous international jurists, including Dame Rosalyn Higgins (former President of the International Court of Justice) (left) and Brigitte Stern (Université de Paris I (Panthéon-Sorbonne)).

Friday, March 25, 7-8:30 a.m.
► "Targeting with Drone Technology: Humanitarian Law Implications": Naz Modirzadeh (Harvard) will moderate.

Friday, March 25, 9-10:30 a.m.
► "Strategy and Planning Meeting for ASIL's new International Disability Rights Interest Group," about which IntLawGrrl Hope Lewis, interest group co-chair along with Stephanie Ortoleva (BlueLaw), posted yesterday.
► "International Environmental Law Interest Group: Roundtable on Research Methodologies," an all-woman panel: Cinnamon Carlarne (South Carolina), Edith Brown Weiss (Georgetown) (right) and Jutta Brunnée (Toronto) as panelists; Sara Seck (Western Ontario) will moderate.
► "International Trade Law and International Investment Law: Convergence or Divergence?": Marinn Carlson (Sidley & Austin LLP).
► "What the Kosovo Advisory Opinion Means for the Future": Anne Peters (Basel).
► "The Role of Legal Norms in Mediation and Negotiation: Views from the Field": Jennifer Lake (Legal Advisor, Independent Diplomat, an advisory group).
► "Ethical and Practical Challenges for Corporate Lawyers Advising Clients on Human Rights": Sarah Altschuller (Foley Hoag LLP), Rachel Davis (Harvard's Kennedy School), and Alexandra Guáqueta (Flinders University).

Friday, March 25, 10:45 a.m.-12:15 p.m.
► "International Criminal Law Interest Group: 'Fact Finding Without Facts': A Conversation with Nancy Combs": IntLawGrrls guest/alumna Nancy Amoury Combs (William & Mary) will speak on her book titled above, about which she posted here; discussant will be her William & Mary colleague, Linda A. Malone.
► "Intellectual Property Law Interest Group: Harmonizing International Law: An IP Perspective": Seagull Song (Renmin University); Elizabeth Chien-Hale (Institute for Intellectual Property in Asia) will moderate.
► "Recent Trends in International Investment Treaty Law": Carolyn Lamm (White & Case LLP) and Loretta Malintoppi (Eversheds LLP).
► "The Roles and Responsibilities of International Organizations": Vera Gowlland-Debbas (Université de Génève) and Daphna Shraga (Office of Legal Affairs, United Nations) as panelists; Blanca Montejo (Office of Legal Affairs, United Nations) will moderate.
► "New Battlefields/Old Laws: Shaping a Legal Environment for Counterinsurgency": Ashley Deeks (Columbia) and Sarah Sewall (Harvard's Kennedy School).
► "Elections and Ethnic Violence": Susan Benesch (World Policy Institute); Sarah Knuckey (NYU) will moderate.

Friday, March 25, 12:30-2:30 p.m.
► "Luncheon Dialogue on the International Criminal Court": ICC Deputy Prosecutor Fatou Bensouda will be the principal speaker; yours truly, Diane Marie Amann (California-Davis), will serve as moderator/discussant.

Friday, March 25, 1-2:30 p.m.
► "International Legal Research Interest Group: Greater than the Sum of Its Parts: Global Cooperation in Making the World's Laws Accessible": Hongxia Liu (World Justice Project), Marylin Raisch (Georgetown), and Roberta Shaffer (Law Librarian of Congress) (left) as panelists; Amy Emerson (Cornell) will moderate.
► "Harmony and Dissonance in Extraterritorial Regulation": IntLawGrrls guest/alumna Hannah Buxbaum (Indiana).
► "Labor and Migration in International Law: Challenges of Protection, Specialization and Bilateralism": Nisha Varia (Human Rights Watch) and Ayelet Schachar (Toronto) as panelists; Regan Ralph (Fund for Global Human Rights) will moderate.

Friday, March 25, 3-4:30 p.m.
► "International Law and the Liability for Catastrophic Environmental Damage": Monika Hinteregger (University of Graz) as panelist; Marie Soveroski (ASIL International Environmental Law Interest Group Co-Chair) will moderate.
► "New Voices II: Internationalizing & Domesticating Law": Anna Dolidze (Cornell), IntLawGrrls guest/alumna Molly Beutz Land (New York Law School), and Tonya Putnam (Columbia).
► "Are There 'Regional' Approaches to International Dispute Resolution?": Katia Fach Gómez (Fordham), Judge Nkemdilim Amelia Izuako (U.N. Dispute Tribunal), and Catherine Kessedjian (Université Panthéon-Assas).
► "International Legal Theory Interest Group: Harmony and Dissonance in International Legal Theory": IntLawGrrls guest/alumna Nienke Grossman and Helen Stacy (Stanford).
► "International Legal Implications of Israel's Attack on the Gaza Aid Flotilla": Sari Bashi (Gisha: Legal Center for Freedom of Movement); Sarah Weiss Maudi (Israel Ministry of Foreign Affairs); Naz Modirzadeh (Harvard).

Friday, March 25, 8-10 p.m.
► "ASIL Annual Dinner: A Celebration of Distinction and Promise": featuring, inter alia, award of the Goler T. Butcher Medal to IntLawGrrl guest/alumna Gay McDougall, (left), U.N. Independent Expert on Minorities; Certificate for Scholarship (Creative Scholarship) to Jutta Brunnée, coauthor with Stephen J. Toope of Legitimacy and Legality in International Law; and Certificate for Scholarship (Honorable Mention in a specialized area of international law) to IntLawGrrl guest/alumna Anne Gallagher, author of The International Law of Human Trafficking, on which she posted here.

Saturday, March 26, 9-10:30 a.m.
► "Duplication and Divergence in the Work of the United Nations Human Rights Treaty Bodies": Sarah McCosker (Office of the Australian Attorney General) and Catherine Powell (State Department) (right) as panelists; Christina Cerna (Organization of American States) will moderate.
► "Trade and Investment in Africa: Harmony and Disharmony with the International Community": Uche Ewelukwa (Arkansas) as panelist; Angela M. Banks (William & Mary) will moderate.
► "Geoengineering Climate Change: Can the Law Catch Up?": IntLawGrrl Hari M. Osofsky (Minnesota) as panelist; IntLawGrrl Rebecca Bratspies (CUNY) will moderate.
► "Author Meets Reader; International Law in the U.S. Supreme Court: Continuity and Change": IntLawGrrls guest/alumna Mary Dudziak (Southern California) and Lori Damrosch (Columbia) as panelists; Ingrid Wuerth (Vanderbilt) will moderate.
► "Transnational Piracy: To Pay or Prosecute?": Jennifer Landsidle (State Department) as panelist; Mileno Sterio (Cleveland-Marshall) will moderate.

Kudos to: ASIL President David Caron; ASIL Executive Director Betsy Andersen; the Program Committee Co-Chairs, IntLawGrrls' guest/alumna Chimène Keitner (California-Hastings), Catherine Amirfar (Debevoise & Plimpton LLP), and Tai-Heng Cheng (New York Law School), as well as Planning Committee members Kristen Boon (Seton Hall), Christiane Bourloyannis-Vrailas (EC/UN), Harlan Cohen (Georgia), Omar Dajani (Pacific McGeorge), Jennifer Daskal (Department of Justice), John Fellas (Hughes Hubbard & Reed LLP), Chiara Giorgetti (White & Case LLP), Dick Jackson (Department of Defense), Rebecca Jenkin (Debevoise & Plimpton LLP), Larry Johnson (Columbia), Erasmo Lara (Mexico Foreign Ministry), Blanca Montejo (United Nations), Michael Newton (Vanderbilt), IntLawGrrl Christiana Ochoa (Indiana), Jeffrey Pryce (Steptoe & Johnson LLP), Regan Ralph (Fund for Global Human Rights), Hina Shamsi (American Civil Liberties Union), Ingrid Wuerth (Vanderbilt), Lionel Yee (Singapore Attorney-General's Chambers), and Nassib Ziadé (International Centre for the Settlement of International Disputes)!

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

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!

Fact-finding Without Facts

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

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

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

► Such inconsistencies pervade international criminal testimony; and

► They frequently pertain to core features of that testimony.

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

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

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

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

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

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

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

Careful examination shows:

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

► How such inferences can explain and justify both:

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

►► Certain otherwise inexplicable acquittals.

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

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

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

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