Fragile peace in Liberia

'There's peace in Liberia, but peace is fragile.'

So says Ellen Margrethe Løj (left), since 2007 the U.N. Special Representative for Liberia. (credit for photo of Løj pinning U.N. medal on Nigerian peacekeeper) Formerly a career diplomat in Denmark, Løj served as the Danish Permanent Representative to the United Nations from 2001 until shortly before her appointment to the Liberia post.
Løj's comment was published yesterday, in a San Francisco Chronicle editorial entitled "U.N. role works as peacekeeper in Liberia." The editorial was among several items in the Chronicle's examination of how things stand in Liberia years after the end of active civil war 7 years ago. The series anticipates balloting next year, during which Ellen Johnson Sirleaf (right; prior IntLawGrrls posts), President since 2006, will vie for re-election. Other articles include:
► An overview of post-civil war Liberia;
► Efforts to reintegrate ex-child soldiers;
► The past, present, and future role of women as peacemakers;
► The challenge of disputes over land; and
► Labor at a Firestone factory.
All well worth the read.

'Nuff said

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

'The whole trial has been a nightmare since the disputes between judges and the prosecutor began in 2008. ... There appears almost a breakdown between the two sides.'

-- Our colleague William A. Schabas (below right), Professor and Director of the Irish Centre for Human Rights, National University of Ireland-Galway, in yesterday's New York Times article by Marlise Simons, entitled "For International Criminal Court, Frustration and Missteps in Its First Trial." Blogreaders will recognize the subject of Simons' critique as the on-again/off-again ICC proceedings about which we've frequently posted -- the trial of Congolese militia leader Thomas Lubanga Dyilo for illegal recruitment of child soldiers. Problems cited include:

► The "'ugly and healthy'" relations, as Schabas termed them, between judges and the prosecution, stemming out of an evidentiary dispute that implicates the due process rights of the accused.

► Continuing doubts about the strength of the case -- about whether "'all this time and effort was worthwhile,'" in the quoted words of Lorraine Smith, who's monitoring for the International Bar Association.

► The decision of the prosecution not to press charges of sexual crimes, a complaint voice by IntLawGrrls guest/alumna Brigid Inder, the Women's Initiatives for Gender justice representative who posted on the issue a while back.

Scarcely a welcome account on the same day that trial #2 commenced, against Jean-Pierre Bemba.

Update: Khadr pleads guilty

Omar Khadr has pleaded guilty to 5 terrorism charges.
According to a report by the Washington Post's Peter Finn, the plea entered this morning by a military commissions judge at Guantánamo provides for an additional year of detention at that U.S. naval base, followed by 7 years more in prison in Canada, Khadr's birthplace.
Below are my thoughts posted in anticipation of this latest development in this case of a captured child soldier.

Khadr to settle?

Emanating from Guantánamo yesterday:
News stories reporting rumors that the military commissions case of United States of America v. Omar Ahmed Khadr is about to end with a plea bargain.
If not, trial is set to begin later this morning in a GTMO courtroom.
Confirming rumors reported by the Los Angeles Times' Carol J. Williams on Saturday, Reuters' Jane Sutton speculated on a reputed agreement by which Khadr, now 24 (above right), would serve "one more year at Guantanamo, followed by seven years in his native Canada." (image credit) Sutton added that Secretary of State Hillary Clinton had talked Sunday with her counterpart in Canada, which would have to approve any such deal.
Later on Sunday, Michelle Shepard of the Toronto Star, author of a book on the case, acknowledged such speculation, but stressed the statement by "Khadr’s Canadian lawyer Dennis Edney" that "there was no deal, 'as of this moment.'" Shepard thus continued with a preview of the trial, should it occur.
The Miami Herald's Carol Rosenberg, meanwhile, led with concern that any Khadr deal might remain secret (as has that of another detainee). Such secrecy would challenge "[t]he Obama administration's quest to show that military commissions can be as transparent and fair as other U.S. courts," Rosenberg reported.
(Indeed, as posted in the update above, this morning Khadr did plead. The agreement was not released, but is believed to provide for the sentence described in this post.)
As blogreaders well know from our prior posts, Khadr was 15 (above, middle) when seized by U.S. military personnel during a firefight in Afghanistan. He has spent 1/3 of his life in American custody. As detailed in his Department of Defense case file, Khadr now faces trial on charges of, inter alia, throwing a grenade that killed a member of the U.S. special forces during the firefight.
At the preliminary hearing that I attended in December 2008, defense lawyers indicated that proof of the charges at trial may prove difficult. From the beginning, however, proceedings have focused on 2 other aspects of the case:
► 1st, what Khadr suffered, including treatment as a "human mop."
► 2d, that if the acts alleged in fact occurred, Khadr was a child soldier. That fact alone ought to preclude prosecution and punishment, many have argued -- among them our colleague David M. Crane, former Chief Prosecutor for the Special Court for Sierra Leone.
The plea agreement bruited in yesterday's media would seem to take neither aspect into account.
Assuming speculation is correct, Khadr would not see release until after having served 16 years in custody -- a sentence scarcely seeming to incorporate much mitigation on account of detention conditions or any other reason.
The reputed deal departs markedly from international law with regard to child soldiers.
Consider the 2000 Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict. In Article 6(3) states parties agree to

take all feasible measures to ensure that persons within their jurisdiction recruited or used in hostilities contrary to the present Protocol are demobilized or otherwise released from service. States Parties shall, when necessary, accord to such persons all appropriate assistance for their physical and psychological recovery and their social reintegration.

Article 7(1) continues in like vein:

States Parties shall cooperate in the implementation of the present Protocol, including in the prevention of any activity contrary thereto and in the rehabilitation and social reintegration of persons who are victims of acts contrary thereto, including through technical cooperation and financial assistance. Such assistance and cooperation will be undertaken in consultation with the States Parties concerned and the relevant international organizations.

The treaty's view that the children are "victims" and deserving of "rehabilitation and social reintegration," as well as "physical and psychological recovery," is obviously at odds with a prosecution and punishment strategy with regard to these same children.
It is at odds, then, with the reported disposition of Khadr.
Canada became a full state party to the protocol in July 2000; the United States, in December 2002. The countries' statements at ratification said nothing to undercut the force of the articles quoted -- which, as indicated in this report of the International Committee of the Red Cross, jibe with other treaties.
Wonder whether either state will address this discrepancy.

A "child soldier"

Much in "U.S. Wary of Example Set by Tribunal Case," a story about Omar Khadr will not be new to our readers, who no doubt will have read IntLawGrrls' many prior posts.
What is noteworthy appears in the lead sentence of this recent New York Times article:

After working for a year to redeem the international reputation of military commissions, Obama administration officials are alarmed by the first case to go to trial under revamped rules: the prosecution of a former child soldier whom an American interrogator implicitly threatened with gang rape.

Khadr was seized in Afghanistan at age 15 and soon shipped to Guantánamo. He's been in U.S. custody more than 8 years -- nearly 1/3 of his life, which began with his birth in Toronto, Canada, to a family that had emigrated from Syria.
The Times article labels him, more than once and without hesitation, a "child soldier."
It's a label that wasn't often seen when initially used on this blog 3-1/2 years ago. The unquestioned use of the term in this Times article marks an important mindset-shift in a mainstream publication that seems yet to have a consistent rule on what deserves the label "torture." It's a shift that owes much not only to judicial decisions like this and this, but also to the release of "Oh, Mommy" interrogation videos (photo credit), to NGO advocacy, to the book Guantanamo's Child (2008), and to principal and amicus litigation.
Time will tell whether and how the shift affects the ultimate fate of this alleged child soldier -- if, that is, his oft-delayed criminal case, set to resume on October 18, ever proceeds to verdict.

Abuse of process & the ICC trial in Lubanga

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

As is well known to readers of this blog, the first trial of the International Criminal Court, respecting charges that Congolese rebel leader Thomas Lubanga Dyilo (left) had recruited child soldiers, was delayed back in 2008 because the Prosecutor’s failure to disclose exculpatory materials rendered the fair trial of the accused impossible. Late in that year a resolution was reached, and the ICC trial commenced in January 2009. (photo credit)
Difficulties in the proceedings did not, however, end.
To the contrary, the first prosecution witness raised eyebrows and paved the way for what was to become the singlemost controversial issue in the trial to date: the pretrial conduct of 'intermediaries', non-ICC employees who interviewed potential witnesses in the field on behalf of the Prosecutor.
The first witness testified that his initial statement was untrue and that he had been trained what to say by one of the prosecution intermediaries. This testimony later was recanted. But as summarised in the Decision on Intermediaries (Trial Chamber I, 15 May 2010), several later witnesses provided similar accounts of promises in exchange for giving fabricated accounts of having served as child soldiers. In that decision, the Chamber ordered the disclosure of further details on some intermediaries who were already known to the Prosecutor. Crucially, the disclosure of one intermediary, P-143, was ordered, pending protective measures.
The P-143 disclosure order-- and the issues it raises in the context of the "abuse of process" doctrine that has emerged out of the jurisprudence of the ad hoc international criminal tribunals -- is the crux of this post.
Before discussing the P-143 order further, however, it is important to note another ruling, Decision on the press interview with Ms Le Fraper du Hellen, issued on the same date. In that ruling, Trial Chamber I took serious issue with an interview in which a member of the prosecution team inter alia insinuated that the accused, Lubanga, had intimidated witnesses while they testified. The Chamber, which comprises Judges Adrian Fulford (Britain) (far right), Elizabeth Odio Benito (Costa Rica) (middle right), and René Blattmann (Bolivia) (near right), said that the remark by the interviewee

involved a clear imputation against the judges.

The Chamber further held that the interviewee had “seriously intruded” on the role of the Chamber, in a way that prejudged the outcomes of the abuse of process issue and the trial itself.

The Press Interview decision is significant in that it points to the emerging pattern of frustration over the conduct of the prosecution. An apex was reached on 8 July, when Trial Chamber I granted another stay of proceedings on account of the Prosecutor's failure to comply with the Decision on Intermediaries.

The Chamber based this stay on two grounds:

► Disclosure of P-143 had not been carried out as ordered, even though the ICC Victims and Witnesses Unit had expressed confidence that the limited disclosure agreement reached would protect the safety of P-143; and

► It appeared that the Prosecutor was operating in accordance with his own interpretation of the Rome Statute. The Prosecutor, Trial Chamber I underscored,

declines to be 'checked' by the Chamber.

Whether the Prosecutor’s delay in following orders stands as an abuse of process in and of itself is debatable. A stay of proceedings stemming from an abuse generally only stems from the most exceptional of circumstances, and specifically for prosecutorial misconduct, when a court is convinced that a suitable caution could not cure the prejudice. It is notable that the current stay arose not from an abuse of process motion from the defence, but from the Chamber itself, as a Decision on the Prosecution's Urgent Request for Variation of the Time-Limit to Disclose the Identity of Intermediary 143 or Alternatively to Stay Proceedings Pending Further Consultations with the VWU.
Speaking for the trial panel, Judge Fulford further had indicated that, pursuant to Article 71 of the ICC Statute, Trial Chamber I would consider sanctioning the Prosecutor at some later date:

'The Prosecutor has failed to implement two of the Chamber's orders; those of 7 July, 2010. For the reasons set out in the decision imposing the stay, this constituted a deliberate and in our judgment, wholly unjustified refusal to comply with the directions of the Court. ... [However, i]t is fair that the issue of sanctions should await the outcome of the appeal.'

Despite the stay, the accused remains in custody. At July's end, citing a risk that the defendant might flee, the ICC Appeals Chamber suspended an order to release Lubanga that Trial Chamber I had issued mid-month.

Meanwhile, developments in Lubanga are beginning to affect another case arising out of the ICC's Situation in Democratic Republic of the Congo.
In the background to the drama of the Lubanga stay, defendants in Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui have continued to express their discontent, asserting that they are affected by the same issue of intermediaries. Accordingly Trial Chamber II, in its mid-July Ordonnance urgente relative à la mise en oeuvre de mesures de protection, ordered that the Victims and Witnesses Unit provide a report on the safety situation of intermediary P-143, the central figure in the Lubanga stay. It may be presumed that the Unit's confidential report will reiterate its assertion in Lubanga that the limited disclosure, as ordered, would not place P-143 under threat. If so, stays of proceedings -- as well as consideration of prosecutorial misconduct -- may be forthcoming in the cases against Katanga (near left) and Ngudjolo (far left).

Whether the most recent finding of Trial Chamber I with respect to abuse of process in Lubanga will be upheld on appeal remains to be seen.

In 2008, the Chamber lifted its stay of proceedings at the point that the conditions of abuse no longer existed, due to the Prosecutor's assurances that he would disclose the material he had previously failed to reveal. Regarding the present situation, if the Prosecutor offered finally to release the identity of P-143 and promised to comply unhesitatingly with all orders of the Chamber, the stay could very well be lifted, and the trial would proceed.
If this were to happen, the Court would then have to examine what is, in my view, the real issue at hand. The real questions concern the intermediaries:
► Whether the intermediaries in fact were involved in encouraging false witness testimony; and
► If yes, whether the Prosecutor knew or should have known about this.
If both points are answered in the affirmative, and another stay is therefore granted, it is difficult to imagine how the abuse of process could be remedied. The prosecution's case is closed, and all of its witnesses have been heard. The result in such a scenario could very well be “third time lucky” -- permanent release for Lubanga.

On February 12

On this day in ...
... 2010 (today), is marked once again the International Day against the Use of Child Soldiers, declared to commemorate the entry into force on this date in 2002 a multilateral treaty that bans states and rebel groups from recruiting children under 18 as soldiers. This Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict has 131 states parties -- among them a nonparty to the principal Children's Convention, the United States. Nongovernmental organizations that work to stop child-soldiering have dubbed today Red Hand Day (logo at left).

(Prior February 12 posts are here and here.)

Unsettling profile of war crimes ambassador

War crimes envoy has personal touch read the headline for Colum Lynch's recent Washington Post profile of Stephen J. Rapp, who, as we've posted, became U.S. Ambassador at Large for War Crimes Issues in September.
Figured the story would talk about how Rapp's experiences as the top prosecutor at the Special Court for Sierra Leone had prepared him for this post. Fair enough.
But then came the subhead:
U.S. ambassador at large knows victimization and is a 'champion' of the brutalized
Uh-oh.
The story kicked off with a harrowing account of an all-night carjacking/kidnapping that Rapp endured 48 years ago. It then repeatedly linked this personal tragedy to Rapp's avowed self-image as "'a champion'" of the victims of crimes he's prosecuted, 1st in federal courts back home in Iowa, then at the International Criminal Tribunal for Rwanda, and eventually at the Sierra Leone court.
Midway through, the story quoted criticism of the United States' policies on war crimes, levied by Fabienne Hara of the International Crisis Group, who contended

that the United States has not lived up to its commitment to stop violence as it unfolds. Its response to war crimes in three of the most serious conflict zones of the past two years, Congo, Sri Lanka and Gaza, consists of pressing for 'accountability after the crisis rather than stopping or preventing the crisis.'

Yet the reporter seems oblivious to another concern -- a concern apparent in the way that he chose to frame his story.

I've written here and here about what I call an "impartiality deficit" in international and internationalized criminal tribunals. Included within the term is concern that victims and victimization are overemphasized, to the exclusion of other interests at play in a properly balanced criminal justice system. Values of fairness and due process preclude establishment of a criminal court -- or prosecution office -- solely for the purpose of representing victims' interests. Both the court and the prosecutor have the duty to represent the larger society, to serve the interest of public safety even if that interest at times conflicts with those of victims -- as, for instance, proper adherence to defense rights often does.

That's not my own idiosyncratic view. Rather, it embodies tradition recalled in a 1935 U.S. Supreme Court opinion.

In Berger v. United States, Justice George Sutherland, a conservative Republican, wrote this in a unanimous opinion that reversed a conviction on account of misconduct by the federal prosecutor:

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor-indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

Prosecutors who assume a different mantle of responsibility, who construe their their role as the victims' lawyers, as the winners of the case, do so at a risk. 1st, identifying "victims" and "perpetrators" can be a difficult task, as is evident not only in yesterday's Los Angeles Times story about cycles of violence, but also in any consideration of how to deal with former child soldiers. 2d, feeding perceptions that international criminal justice seeks vengeance stokes already overheated claims of "victors' justice." 3d, as many pretrial proceedings at Guantánamo and the trial of Saddam Hussein demonstrated, singular equation of justice with victory does little to reduce the dangers of impartiality deficit.

It's to be hoped that the spin of the Post profile reflects reportorial choice rather than any such singular equation -- that punishment will be but 1 goal of the Office of War Crimes Issues, and that postconflict reconstruction and preconflict prevention will enjoy priorityof place.

Canada Supreme Court to hear Khadr

News flash: The Canada Supreme Court has just ordered arguments on whether the government must work to seek the release of Omar Khadr, a native citizen of Canada detained at Guantánamo.

The government's appeal of lower courts' orders to do just that will be heard on November 13, at the courthouse in Ottawa.

This will not be the Canada Supreme Court's 1st consideration of Khadr; it issued a ruling on an evidence-disclosure matter in 2008.

As we've posted, Khadr, now 22 years old, is alleged to have been fighting as a child soldier when he was seized in Afghanistan in 2002. He's spent a third of his life in U.S. antiterrorist detention. (My observations on Khadr's December hearing before a military commission at Guantánamo are at pages 9-13 of this report.)

The Toronto Star today wrote that the Conservative-led Canadian government

has long argued Khadr should face trial under the U.S. military justice system, which took custody of him immediately. Khadr was jailed first at Bagram military base and later in Guantanamo Bay, where he was subjected to a 'frequent flyer' program of sleep deprivation to prepare him for aggressive questioning.
That treatment was known to Canadian officials just prior to the third interview conducted by a Canadian foreign affairs official in March 2004.

Jawad goes home

The United States' criminal case against Mohammed Jawad (right), the alleged child soldier about whom IntLawGrrls have posted here, ended yesterday when he was flown out of Guantánamo and home to Afghanistan. The U.S. Department of Justice said of Jawad, who was between 12 and 16 years old when seized in 2002:

Jawad’s transfer was carried out under an arrangement between the United States and the government of Afghanistan. The United States has coordinated closely with the government of Afghanistan to ensure the transfer takes place under appropriate security measures and will continue to consult with the Afghan government regarding Jawad.

It remains to be seen whether an arrangement between the United States and the government of Canada one day will benefit the alleged child soldier at left, Canada-born Omar Khadr.

On August 16

On this day in ...
... 1946, Dorothy Jacobs Bellanca died in New York City, 52 years and 6 days after she'd been born in Zemel, Latvia, the youngest of 4 daughters. In 1900 the family immigrated to Baltimore, where her father worked as a tailor and she attended public schools. Her mother died, and at age 13 Dorothy went to work, hand-sewing buttonholes on men's coat for $3 a week. (As no image of Bellanca appears to exist online, we post above left a photo of New York garment workers performing such work. (credit)) By age 15 she'd "organized female immigrant buttonhole makers into Local 170 of the United Garment Workers of America"; she'd go on to become a leading labor organizer who "promoted class solidarity, but took particular interest in organizing women." During the New Deal era -- at the request of Labor Secretary Frances Perkins, an IntLawGrrls transnational foremother -- she served on the Maternal and Child Welfare Committee. Bellanca also ran to be the Member of Congress representing Brooklyn, losing to the incumbent by a margin of fewer than 16,000 votes out of more than a quarter-million cast. Bellanca recently was featured as "Immigrant of the Day" by our colleagues at Immigration Prof Blog.
... 1869 (140 years ago today), la batallas de Acosta Ñú/Campo Grande, a struggle that had raged for days, took a particularly tragic turn: the massacre of thousands of Paraguayan child soldiers by troops from the Triple Alliance comprising Argentina, Brazil, and Uruguay. Some of the children -- who'd been impressed into service by the leader of Paraguay (flag at right) after many adults were killed or captured -- "fought with fake beards to conceal their age." To this day the event is commemorated as Children's Day in Paraguay.

(Prior August 16 posts are here and here.)

Guest Blogger: Myriam Denov

It's IntLawGrrls' great pleasure to welcome as a guest blogger Dr. Myriam Denov (right).

An Associate Professor of Social Work at McGill University in Montreal, she received her doctorate in Criminology from the University of Cambridge.

At McGill Myriam researches and teaches on children and youth at risk, with an emphasis on war and political violence, children and armed conflict, and gender-based violence. She has worked with vulnerable populations internationally including former child soldiers, victims of sexual violence, and people living with HIV/AIDS. Her current research explores the militarization and reintegration experiences of former child soldiers in Sierra Leone and Sri Lanka. Myriam has presented expert evidence on child soldiers and has served as an advisor to government and NGOs on children and armed conflict, and on girls in fighting forces. She is currently writing a book on child soldiers that will be published by Cambridge University Press.

Myriam's guest post below, which draws from her experience in Sierra Leone to focus on girl soldiers, an issue on which another IntLawGrrls guest, Dr. Noëlle Quénivet, also has posted.

Myriam's transnational foremother was herself a girl soldier:

I would like to dedicate this guest post to Mamusu, who I was privileged to meet during my time in Sierra Leone. Mamusu was a former girl soldier who was abducted at the age of 9 by the rebel Revolutionary UnitedFront, forced to fight in battle, and to become the “wife” of a rebel commander. She remained with the rebel group for more than five years and bore two children, as a result of sexual violence. In the aftermath of the war, impoverished and with few systems of support, Mamusu courageously and inspirationally attempted to carve out a life and livelihood for her and her two young children. Mamusu died at the age of 17.

Mamusu joins other IntLawGrrls transnational foremothers in the list below the "visiting from..." map at right.

Heartfelt welcome!

Girl Soldiers in Sierra Leone

(Many thanks to IntLawGrrls for inviting me to contribute this guest post on the issue of girl soldiers, on which another guest also has posted.)

The issue of child soldiers has become an issue of global concern and has moved to the forefront of political, humanitarian and academic agendas. An estimated 250,000 soldiers under the age of 18 are fighting in conflicts in over 40 countries around the world. While there is ample descriptive evidence of the conditions and factors underlying the rise of child soldiery in the developing world, most of the literature has portrayed this as a uniquely male phenomenon, ultimately neglecting the experiences and perspectives of girls within fighting forces.

In this posting, I’d like to highlight a few of the findings from my work on girl soldiers in Sierra Leone. My work has aimed to trace girls’ perspectives and the experiences of girls as victims, participants, and resisters of violence and armed conflict. These findings have been published (many with my colleague and co-author, Dr. Richard Maclure) in several journals, including International Journal of Human Rights, Signs: Journal of Women in Culture and Society, Journal of Youth Studies, Anthropologica, and Security Dialogue.

Findings:

► First, whether in the heat of conflict or within postwar programming, girls are, for the most part, rendered invisible and marginalized. During conflict, the roles that they play are frequently deemed peripheral and insignificant by governments, national and international NGOs, policy-makers, and program developers. In the aftermath of war, girls continue to be marginalized within the realms of education, economics, and are frequently discriminated against within formal disarmament, demobilization and reintegration (DDR) processes, as well as within the context of their families and communities.

► Second, in spite of this profound invisibility and marginalization, girls are fundamental to the war machine – their operational contributions are integral and critical to the overall functioning of armed groups.

► Third, girls in fighting forces contend with overwhelming experiences of victimization, perpetration, and insecurity. During conflict, girls are subjected to grave violations of their human rights through forced recruitment, killing, maiming, sexual violence, sexual exploitation, abduction, forced marriage, and increased exposure to HIV/AIDS. Many are also forced to participate in brutal acts of violence. In the aftermath of conflict, girls arguably bear a form of secondary victimization through socio-economic marginalization and exclusion, as well as the ongoing threats to their health and personal security.

► Finally, girls in fighting forces are not simply silent victims, but active agents and resisters during armed conflict. Girls’ made remarkable attempts to defend and protect themselves during situations of severe violence and insecurity, as well as efforts to bring about change for themselves and by themselves. Challenging the predominant portrayals of girls as emblematic victims, girls attempted to avoid, minimize, or resist wartime abuses, patriarchal power structures, and the culture of violence that surrounded them.

In light of these research findings, an alternative approach is essential -- one that gives due regard to the ways in which girls in fighting forces are perceived, represented, and conceptualized.

Rather than focusing solely on girls’ vulnerability and victimization, it is essential also to direct our attention to their self-efficacy, resilience, and skills. Moreover, given their significant presence and multiple roles within fighting forces, girls’ experiences and perspectives should be considered as central and indispensable to understandings and analyses of war and political violence, and not regarded as peripheral or, unwittingly or wittingly, rendered invisible.

International Justice Overload

Greetings from The Hague. I am here with a team of Santa Clara Law students who are competing in the International Criminal Court Trial Competition, sponsored by the International Criminal Law Network and others. (The team was invited to compete in the international rounds by virtue of winning the North American Regional Rounds last month).

As part of our program, we had the opportunity to visit several of the international tribunals based here in The Hague. At the ICC, we witnessed part of the trial of Thomas Lubanga Dyilo (left), the first defendant to be tried before the fledgling Court. The witness on the stand was under protective measures, his identity hidden from those of us in the public gallery by blinds and a pixelated image on screen. The testimony culminated in the showing of a video in which very young children sang and chanted about the glory of "Papa Tom," as he watched on. Children carrying weapons on their shoulders weaved throughout the crowd, and a jeep with two additional child soldiers patrolled behind everyone.

Lubanga has been charged with the offense set forth in Articles 8(2)(b)(xxvi) and 8(2)(e)(vii):

Conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities.

Sub-sections (b) and (e) of Article 8 relate to international and non-international armed conflicts, respectively. Interestingly, the prosecutor had originally charged Lubanga only with respect to the crime within a non-international armed conflict. At the time the indictment was confirmed, the pre-trial chamber insisted on adding the charge with respect to an international armed conflict. The Prosecutor sought leave to appeal this change in the indictment, but such leave was denied. Accordingly, the Court will directly address the question of whether the conflict in the relevant region of the DRC amounted to an international armed conflict within the meaning of international humanitarian law.

It was a judge--Judge Adrian Fulford (United Kingdom) (right)--who asked the most pointed questions, specifically calling the attention of the witness to the child soldiers depicted in the video. (We entered the gallery mid-examination, so it is not clear if the witness was also depicted in the video).

The video was introduced by the prosecution, who according to the guiding Elements of Crimes much show:

1. The perpetrator conscripted or enlisted one or more persons into the national armed forces or used one or more persons to participate actively in hostilities.


2. Such person or persons were under the age of 15 years.


3. The perpetrator knew or should have known that such person or persons were under the age of 15 years.


4. The conduct took place in the context of and was associated with an international or non-international armed conflict.


5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.

Unlike other international crimes that require a showing of intent or actual knowledge, the crime of conscripting, enlisting, or using child soldiers applies more of a negligence mens rea ("knew or should have know" that such persons were under 15). In addition, it is not necessary to use child soldiers in combat; it is enough that the defendant conscripted or enlisted them. The video certainly suggested that Lubanga was aware of the existence of child soldiers in his ranks.

Next, we visited the chambers of Judge A. A. Cançado Trindade (left), a member of Santa Clara's overseas faculty until he was recently elected to the International Court of Justice (winning the most votes of any judge to that court (163)).

Finally, we attended two trials at the International Criminal Tribunal for the Former Yugoslavia. The first was of Momcilo Perisic (below left), former Chief of the General Staff of the Yugoslav Army (VJ). After the death of former President Milosevic, this defendant is crucial to linking crimes committed in Croatia and Bosnia-Herzegovina back to Belgrade. He is charged with various war crimes and crimes against humanity, including murder, inhumane acts, persecutions, and extermination. Perisic's case was one of the ones subject to Rule 73bis, whereby the Trial Chamber may invite the prosecutor to reduce the scope of the indictment in an effort to streamline the case. While the judges of the ICTY adopted this rule to help implement the tribunal's Completion Strategy, the judges of the International Criminal Tribunal for Rwanda have determined that it interferes with prosecutorial discretion and have not followed suit.

When Perisic's trial went into closed session, we sat in on the trial of Popovic (right) et al., another Srebrenica case. All 7 defendants are former members of the Bosnian Serb Army (the VRS). They are charged with genocide, conspiracy to commit genocide, extermination, and murder. So far, the Srebrenica massacre has yielded convictions for complicity to commit genocide, but not straight genocide. Today's testimony contained a somewhat numbing presentation of evidence (including transcripts of intercepted conversations) concerning fuel requisition. The trial has been ongoing since 2006.

They don't call The Hague the International Law Capital of the World for nothing.

Guest Blogger: Noëlle Quénivet

It's IntLawGrrls' great pleasure today to welcome Dr. Noëlle Quénivet (right) as a guest blogger.
Noëlle is a Senior Lecturer at the Bristol Law School of the University of the West of England in Bristol, where she teaches Public International Law, International Humanitarian Law, and International Criminal Law.
She earned her B.A. in international relations from the University of Strasbourg - Graz, her LL.M in human rights law from the University of Nottingham, and her Ph.D. from the University of Essex.
Author of the book Sexual Offenses in Armed Conflict and International Law (Transnational Publishers 2005) (reviewed here), Noëlle continues to concentrate her scholarly research on issues related to women and armed conflict. Her guest post below reflects that expertise. It discusses the legal conundrum presented by girl child soldiers, an issues she explored in her article entitled Girl Soldiers and Participation in Hostilities, 16 African Journal of International & Comparative Law 219 (2008).

Heartfelt welcome!

Girl child soldiers

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

Recently, organisations working with former child soldiers have observed the growing number of girls involved in armed conflicts.

While girls' fate as sexual slaves is well documented, their participation in hostilities is less acknowledged. Girls, like boys, spy, loot, and kill. But they also cook, clean, and run camps. International humanitarian law, human rights law and international criminal law clearly proscribe “using [children] to participate actively in hostilities.” Three key issues are raised in this context:

► the definition of a child;

►the interpretation of the expression “participation in hostilities”; and

►the use of the word “actively/direct” to qualify the type of participation.

While the first issue is rather generic, since it aims at ascertaining who is a child, the second and the third appear gender-biased. Indeed, the expression “direct participation in hostilities” assumes that child soldiers are boys engaged in combat duties. This interpretation leaves open the possibility that the activities carried out by girls do not fall within the purview of this prohibition. As a result one may even question whether the recruiters of girls are breaching legal norms by “using” them.

It is this gap that triggered my interest in the subject. I have recently published an article, Girl Soldiers and Participation in Hostilities, 16 African Journal of International & Comparative Law 219 (2008). There I argue that the actual participation of boys in armed conflict does concur strictly with the legal definition of direct/active participation. But this does not always hold true for girls, since they are involved in a plethora of activities that are related to military operations but whose purpose is not necessarily “to cause harm to the personnel or equipment of the enemy forces.” However, I contend that a broad interpretation of the word “direct” allows for the inclusion of most girls’ activities within the prohibitive provisions. Moreover, I argue that as girls are more likely to make an indirect contribution towards the hostilities, it is important that indirect participation be also prohibited. Unfortunately, only an overtly broad interpretation of the text can lead to such a conclusion. As a result, the case of girl soldiers reveals how inopportune and counterproductive the legal distinction between direct and indirect participation in hostilities is.

Strictly speaking, one must examine on a case-by-case basis what was the focus of girls’ activities in order to qualify their participation in the conflict. This involves interviewing a substantial number of girls, obtaining factual evidence of their activities and assessing the time spent on each task. Further, an objective test may fail to take into consideration the feelings of the girls who perhaps viewed the situation from a different angle.

Regrettably, I come to the conclusion that it is unlikely that those accused of using children to participate in hostilities can be successfully prosecuted for obliging girls to take part in the conflict unless these girls were almost exclusively “used” for activities closely related to military operations.

This is an area of the law that urgently needs to be addressed.

(credit for above left photo of girl soldier in Cambodia; credit for above right photo of infant and mother who gave birth while a girl soldier in Democratic Republic of Congo)

Child soldier accountability

The good news:
Upon signature last week by President George W. Bush, the Child Soldier Accountability Act became U.S. law. This means that recruitment and use in combat of children are now criminal acts subject to prosecution in U.S. courts. Criminalized is recruitment of children "under 15." As Human Rights Watch details here, that age line comports with the 31-year-old protocols to the 59-year-old Geneva Conventions; however, it is much lower than the line of 18 drawn in many later international law instruments.
The bad news:
The age-line discrepancy is no small thing.
Notwithstanding U.S. officials' apparent recognition that children recruited to serve as soldiers are victims of crime, the United States persists in its prosecution of alleged child soldiers. Among them, as we've posted, is Toronto-born Omar Khadr, was 15 years old when captured in Afghanistan. He's spent his adolescence at the U.S. military base at Guantánamo Bay, Cuba, under conditions of detention and interrogation (above; credit) that his lawyers say have harmed his mental health. The situation has been condemned by Canada's Supreme Court, and lawyers have demanded Khadr's repatriation. Although plans to start a trial by military commission yesterday have been scrapped, U.S. efforts to prosecute Khadr -- on charges of murder, attempted murder, conspiracy, material support for terrorism -- continue. In similar predicament is another detainee, Mohammed Jawad, 16 when captured; see Jamil Dakwar 's ACLU Blog post here.
Some day, perhaps, there will be a measure of accountability for the treatment of these child soldiers?

(Hat tip on news of the new U.S. law to Pamela Merchant at the Center for Justice and Accountability, a San Francisco-based NGO)

Girl Soldier & 2nd Chautauqua Declaration

I post again from the 2nd Annual International Humanitarian Law Dialogs at Chautauqua, New York. The conference closed with the solemn reading by American Society of International Law Executive Director Betsy Andersen (left) of the 2nd Chautauqua Declaration, signed by the international criminal prosecutors present. The first two operative paragraphs are powerful:

That states must conform their conduct to the law, to settle disputes peaceably to refrain from aggressive acts, to honor the sanctity of the person, and to allow the peoples of the world to live free from want, fear, and to worship and express themselves without repression;
That states honor their legal commitments to uphold the directions and orders of the justice mechanisms they have created and once again, call upon all states to arrest and surrender to the appropriate court, tribunal or chamber Ratko Mladić, Felician Kabuga, Joseph Kony, Ahmad Harun, Ali Kushyab and all others not listed here and who are sought by international justice.

Missing from the list of fugitives in the 1st Chautauqua Declaration is Radovan Karadžić; let's hope for more missing names next year. The full text is posted on the website of the Robert H. Jackson Center.

The most moving event of the day was the talk by former child soldier Grace Akallo (left), one of the Ugandan schoolgirls abducted by the Lord's Resistance Army. Grace quietly recounted her story, not flinching at describing the mistreatment that caused her to become a killer to survive. With a shy smile, she told us about her college degree and infant son. Her message to us? Just as she is speaking out to educate the public and counseling other victims, we as lawyers should work to bring Joseph Kony and the LRA to justice and thereby facilitate lasting peace.

I highly recommend Girl Soldier (2007) (right), the book that Grace co-authored with Faith J.H. McDonnell.

Child soldier in interrogation

We've posted before about Omar Khadr (right), the alleged child soldier who's been detained for years at Guantánamo and is among the 1st detainees whom to U.S. government has charged. He was seized in Afghanistan in 2002.
Now comes the videotape below of a February 2003 interrogation of the Canada-born Khadr. Though the words at times are hard to decipher, Khadr's distress is evident. At one point the woman and men who are questioning him leave the room. Khadr slumps forward, head in hands, and wails 2 syllables that some have understood to be "Help me," but that others have heard as the Arabic words "Ya Umi" -- "Oh, Mommy" in English.
At the time of this interrogation the boy was 16 years of age.

News from Guantánamo

IntLawGrrls have posted often on matters related to Guantánamo, but we've not checked in recently. So here's a roundup of what's been happening:

Detainees Arraigned in Military Commissions

On Thursday, June 5, Khalid Sheikh Mohammed and four other detainees were arraigned before the military commissions at the Guantánamo Detention Center for their alleged participation in the September 11, 2001, attacks on the United States. The prosecution seeks the death penalty on the charges, which include conspiracy, murder in violation of war, attacking civilians, and material support for terrorism. The five detainees were among twelve detainees who had been held in secret CIA "black sites" prior to their transfer to Guantánamo in September 2006. U.S. government officials have admitted to waterboarding Mohammed while in secret custody; the other four arraigned detainees were also subject to torture and coercive interrogation techniques, including sleep deprivation, stress positions and forced nudity. The arraignment marks the first public glimpse of the alleged "masterminds" of 9/11 and over fifty members of the domestic and international media were permitted to view the proceeding, which was characterized by long conversation between the five detainees, much to the concern of defense counsel who believe the judge let the conversation inhibit the voluntary choice of legal counsel. Army Major. Jon Jackson, who represents one of the detainees, testified that his client, Mustafa Ahmad al-Hawsawi, had clearly been "intimidated" and pressured by Mohammed to disavow his military attorney and to represent himself. Judge Ralph Kohlmann, who had previously denied all defense requests to delay the arraignment, postponed ruling on al-Hawsawi's and another detainee's requests to represent themselves, but ruled that the other three detainees had "knowingly and voluntarily" refused legal counsel. (credit for above photo of Gitmo courtroom)

Military Commissions Judge Steps Down

Military Judge Peter E. Brownback III, who has been presiding over the commission case of Omar Khadr (the young Canadian alleged to have killed an American soldier in Afghanistan; prior posts here), stepped down and will be replaced by Col. Patrick Parrish. The Pentagon has not explained the reason behind the move. Judge Brownback had threatened to halt proceedings if the prosecution failed to release Khadr's detention records. He also had resisted setting a trial date until the classified prison log, which allegedly demonstrates that Khadr was abused and coerced into making incriminating statements, is provided to the defense. Brownback's rulings have not always been in favor of Khadr, however; for example, he declined to apply child soldier status to Khadr. But defense counsel felt that Judge Brownback was fair and was making an effort to make the process fair despite the severe shortcomings of the commission system.

Canada's High Court Denounces Guantánamo Detentions

On a related topic, in a case originally brought by Omar Khadr in the Canadian court system, on May 23 the Supreme Court of Canada unanimously ruled that the detention and interrogation of Omar Khadr at Guantanamo violated U.S. domestic law and international human rights obligations to which Canada is a party, and thus required Canada to disclose to Khadr certain documents in its possession. Disagreeing with the Canadian government, the Court concluded that the Canadian Charter of Rights and Freedoms did apply at Guantanamo. The Canadian Court found that because the U.S. Supreme Court had already ruled in Rasul v. Bush (2004) and Hamdan v. Rumsfeld (2006) that the detentions violated U.S. domestic law and international law. Thus it wrote in paragraph 24 that the principles of comity, which would normally justify deference to foreign laws and might preclude application of the Charter, do not apply in the case:

'The violations of human rights identified by the United States Supreme Court are sufficient to permit us to conclude that the regime providing for the detention and trial of Mr. Khadr at the time of the CSIS interviews constituted a clear violation of fundamental human rights protected by international law.'

Under section 7 of the Charter, which states that "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice," the Canadian government was required to disclose to Khadr's counsel records of interviews and information given to U.S. authorities by Canadian officials who interrogated Omar Khadr at Guantánamo. The Court based its decision on the principles articulated by the Stinchcombe case, which held that persons whose liberty is a risk as a result of being charged with a criminal offence are entitled to disclosure of the information in the hands of the Crown under section 7 of the Charter. The Court also held that its ruling did not necessarily mean that Khadr and his attorneys were entitled to unredacted copies of all documents. The trial judge presiding would review the materials and decide which documents fall within the scope of the disclosure obligation.