Guest Blogger: Mia Swart

It's IntLawGrrls' great pleasure to welcome Dr. Mia Swart (left) as today's guest blogger.

Mia's an Assistant Professor of Public International law and Global Justice at Leiden University, the Netherlands, from which she earned her Ph.D. in 2006. Under the supervision of Professor John Dugard and funded by Huygens and Mandela scholarships, she completed a thesis was on the topic of Judicial Lawmaking at the ad hoc International Criminal Tribunals.
Mia's based at Leiden's Hague campus, affiliated with its law faculty and Grotius Centre. She also holds the title of Honorary Associate Professor at the University of the Witwatersrand in Johannesburg, South Africa, where she was previously worked as Associate Professor. She is also a research associate of the South African Institute of Advanced Constitutional, Public and International Law.

Published in the areas of transitional justice, international criminal law, and comparative constitutional law, Mia currently focuses her research on apartheid reparations. Her guest post below considers lessons learned from South Africa's apartheid era with respect to detention practices.
In 2007 and 2009, Mia received a Humboldt research fellowship to do research at the Max Planck Institute in Freiburg and at Berlin's Humboldt University, from which she holds an LL.M. She worked as an intern in the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia in 2001, the same year she was admitted as an attorney.
Mia chooses to honor as her foremother Olive Schreiner (1855-1920), a South African author, feminist, and antiwar campaigner about whom we've posted. Mia writes of Schreiner (below right):

She can be described as one of the most interesting and influential South African intellectuals of her time. She is most famous for her novel The Story of an African Farm, a novel portraying elementary life on the colonial frontier. The novel considered issues such as individualism and the treatment of women. She also wrote Women and Labour in which she argues that women and men should be treated and compensated equally in the workplace. She also argued for the rights of black people and other groups she perecived as being sidelined by British Imperialism. Although she is often described as a feminist and pacifist her true views escape categorisation. She was the deputy president of the Cape Town branch of the Women's Enfranchisement League. She was friends with Emily Hobhouse (a British nurse who protested against the treatment of Afrikaner women and children in British concentration camps during the Boer War) and with British intellectuals such as Mary Wollstonecraft.

Today Schreiner joins other foremothers -- including Mary Wollstonecraft -- on IntLawGrrls' list just below the "visiting from..." map at right.
Heartfelt welcome!

'Nuff said

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

The wrangling over reparations also helped turn the German people against co-operation with the international system.

-- Oxford historian Margaret MacMillan (right) in a New York Times op-ed marking the recent payment-in-full by Germany of reparations assessed against it at the end of World War I. In the essay Macmillan (prior IntLawGrrls posts) seesaws between the good and the bad, the rightness and wrongness of these reparations -- an ambiguity that, as she notes, persists in postconflict situations to this day.

On August 27

On this day in ...
... 1952, in Wassenaar (right), a suburb of The Hague, Netherlands, negotiators who'd been at work for 5 months completed draft agreements by which West Germany agreed to pay reparations over a period of 14 years, totaling 3.45 billion Deutsche marks, or US $822 million, "basically in goods, to Israel and world Jewish organizations in compensation for Nazi antisemitic acts" in the 1930s and 1940s. (photo credit) The New York Times further reported that under the agreement, West Germany was to "improve its machinery for individual restitution." Israel was to establish a trade mission in Bonn so that the agreement could be administered.



(Prior August 27 posts are here, here, and here.)

Open wounds after war

(Delighted to welcome back alumna Jennifer Kreder, who contributes this guest post)

The first major Khmer Rouge defendant has been brought to justice with the 30-year sentence just handed down (left), as posted, by the Extraordinary Chambers in the Courts of Cambodia. (photo credit)
I believe postwar prosecutions for human rights violations are beneficial for victims, but that there are risks as well. When people who have committed heinous crimes get less than the maximum sentence, I think it is foreseeable that many victims will be hurt again. On the other hand, if every defendant gets the maximum sentence, the tribunal will not appear to be objective.
Then, there are other ways to deal with postwar open wounds, such as truth commissions and civil litigation, which may occur in courts beyond the borders of the nation that experienced war (often internal civil war).
I would love to hear others' viewpoints about these issues:
► What do you think is helpful for the individual victims and the nation, and why?
► Should U.S. courts hear postwar claims? If so, when and why?
► Should it depend on the location of victims who fled a murderous regime? Or on the location of their property? Or on whether significant remedies are available in the nation where the war occurred?
► Should it depend on a green light from the executive branch?
I am currently exploring the intersection of the "open wounds" idea and the cultural property arena.
For example, Tuol Sleng (right), the prison where the just-sentenced defendant, known as Duch, led the torture and murder of so many innocents, is now a Genocide Museum.
Part of Tuol Sleng's roof collapsed last week. Some people said the souls of the dead were crying out for justice.
Certain types of property, real property and chattels, have meaning that transcends finances. Caring for such property thoughtfully can help heal postwar wounds, whereas its destruction can feel like new wounds to wartime victims.
Another example of the intersection of human rights, war, and cultural property concerns terrorism and antiquities that were found within the borders of modern-day Iran but now are located in U.S. museums.
In recent years Congress a number of laws purporting to give victims of terrorism means to redress:
► That part of the 1996 Antiterrorism and Effective Death Penalty Act that allows American victims to sue countries designated as sponsors of terrorism; and
► The Civil Liability for Acts of State Sponsored Terrorism Act, a/k/a the Flatow Amendment in honor of victim Alisa Flatow), which authorizes U.S. courts to award money damages to victims of terrorism.
In fact, this legislation has proved ineffectual -- a “sound bite” that has foisted conflicting jurisdictional mandates upon the federal courts, sucked terrorist victims into a vacuous, exhausting drama with no chance for justice, and interfered with the President’s ability to conduct diplomatic relations in the Middle East.
One group of victims is mired in multiple jurisdictions, trying to enforce an extremely large default judgment against the Islamic Republic of Iran by forcing auctions of antiquities like these Persian tablets, housed at the University of Chicago's Oriental Institute. Other collections subject to this complex litigation may be found at, to name a few sites, Harvard University, the Field Museum of Natural History in Chicago, and the Museum of Fine Arts in Boston. Congress, in this political posturing, required the U.S. Department of Justice to participate in the litigation in a way that runs counter to the victims’ interest. The victims likely feel ignored and maligned by their own President, while Congress all along was the master puppeteer of their false hopes. Kimberly deGraaf and I have co-authored an article on the subject, "Museums in the Crosshairs: Unintended Consequences of the War on Terror," forthcoming in the Duke Journal of Comparative & International Law.
No one believes that dealing with property ever will bring back the dead or afford full "justice" to victims. But many of us believe that the symbolism of such property is significant.
Do you have thoughts on these issues?
Can you provide other examples of postwar wounds that need redress to allow healing to occur?

(A version of this post appears at PrawsfBlog)

Breaking News: ICJ Rules in Germany v. Italy on Legality of Counter-Claim

Hot off the presses and straight from the source, I have an advanced copy of the International Court of Justice preliminary ruling concerning Italy’s counterclaims in the Jurisdiction Immunities of the State (Germany v. Italy). (The opinion should be online soon; the ICJ's press release, dated 20 July, is here).
By way of background, the original claims by Germany stem from the fact that Italian courts had permitted certain civil claims to be pursued by Italian nationals based on violations of international humanitarian law (including the forced labor of Italian POWs and deportation (see photo, below left)) in the World War II and postwar period. Germany has argued that it is entitled to sovereign immunity. In particular, in its initial Application and Memorial to the Court, Germany argued that the claims were barred by virtue of the 1947 Peace Treaty between the two countries—which promised restitution for seized property and contained a waiver of other claims on behalf of Italy and Italian citizens.
Italy, in turn, appended a counter-claim in its Counter-Memorial, espousing the claims of certain nationals against Germany arising out of WWII-era violations. Both the primary and counter-claims premised ICJ jurisdiction on the 1957 European Convention for the Peaceful Settlement of Disputes, in which parties agreed submit to the judgment of the ICJ all international legal disputes that may arise between them, including those that may constitute a breach of an international obligation and any claims for reparation. The Convention is prospective in that it does not apply to

[d]isputes relating to facts or situations prior to the entry into force of [the] Convention

which for the parties occurred in 1961.
In its subsequent objections to the counter-claim, Germany argued that the counter-claims were not proper according to Rule 80 of the Rules of the Court, which requires that counter-claims:

1. Come within the jurisdiction of the Court and
2. Be directly connected with the subject matter of the original claim.

Germany reserved its position on the second element of the test. On the question of jurisdiction ratione temporis, Germany argued that the only operative facts at issue in the counter-claims concern violations of international law allegedly committed by German armed forces and occupation authorities in the immediate post-WWII period, well before the enactment of the European Convention.
For its part, Italy argued that whereas the underlying breaches (the fact of which are not in dispute between the parties) occurred in that period, the right to reparation (which is in dispute) emerged anew from the 1961 Agreements—which post-date the entry into force of the European Convention and voided any waiver of claims in the original Peace Treaty—and the Law on “Remembrance, Responsibility and Future” Foundation and other legislation enacted by Germany more recently to address an outpouring of WWII claims not subject to postwar peace treaties or agreements. Italy argued in essence that these subsequent actions barred Germany from relying on the waiver in the Peace Treaty.
In response, Germany argued any right to reparation was not a new claim, but a “consequence” of the original claims. It also argued that Italy unequivocally waived any claims it or its citizens might have had in the original Peace Treaty; the 1961 Agreements were mere “gesture[s] of goodwill;” and the exclusion of Italian claims from the ambit of more recent reparative legislation does not give rise to any new claim of right.
In ruling against Italy and rejecting the counter-claims, the ICJ made clear that it would consider only those facts and situations that are the true “source of the dispute” or its “‘real cause.’” In this regard, the Court ruled that

• the original waiver remained extant and by its subsequent actions, Germany did not renounce any right to rely on it in the present dispute;
• the 1961 Agreements did not create any new claims of right on behalf of the Italian citizens whose claims undergirded the counter-claims, and
• the 2000 legislation did not create any new obligations on the part of Germany to pay reparations to Italian citizens.

As such, the Court lacked temporal jurisdiction over Italy’s counter-claims.
Judge Antonio Cançado Trindade (right, from Brazil), who joined the Court in 2009 having served as a Judge on, and President of, the Inter-American Court of Human Rights (IACHR) from 1995-2008, appended a Dissenting Opinion five times the length of the majority holding. Judge Trindade, who became known at the IACHR for his ever frequent and always elegant separate opinions, is staying true to form at the ICJ.
His opinion, which focused on the complexities of the parties’ positions not apparent from the superficial majority holding, hinged on the idea that Germany’s breaches of international law were of a continuing character, as recognized by

• Article 14(2) of the ILC’s Articles on State Responsibility,
• the ICJ in the South West Africa Case (wherein the Court ruled that South Africa’s continued occupation of Namibia constituted a continuing violation giving rise to international responsibility), and
• a host of international human rights decisions.

In particular, he cited a number of decisions and instruments concerned with forced disappearances, which have been deemed to constitute continuing violations of the victim’s right to life, right to liberty and security of person, and right to be free from torture and other cruel treatment, as well as family members’ rights to access to justice and to a fair trial.
In this regard, Judge Trindade decried the fact that the majority opinion homogenized and rendered invisible the victims’ newly acquired rights arising from the 1961 Agreements (which embodied new obligations, voluntarily assumed by Germany), subsequent German legislation revisiting the question of reparations, and subsequent dealings between the parties, inter alia. In so doing, the Court left the state immunity claim in artificial isolation, notwithstanding that the original claim and the impugned counter-claim were “ineluctably intertwined” and, as such, indivisible. Most importantly, Judge Trindade correctly noted that the Court missed an opportunity to interrogate more closely the power of states to waive rights (especially rights arising from jus cogens) that are not, ultimately, theirs to waive. All in all, he summed up the majority opinion as follows:

The Court’s decision … seems more open and receptive to the sensitivities of States than to the victimized human beings, subjected to deportation and sent to forced labour.

In his estimation, the counter-claims should have been declared admissible and then subject to a rigorous testing on the merits. Hear hear.

Kampala launch of ICC reparations report

(Another in IntLawGrrls' series of Kampala Conference posts)

KAMPALA, Uganda – The adoption in 1998 of the Rome Statute of the International Criminal Court marked the first time that an international criminal body was authorized to award against individual perpetrators of mass atrocities a range of reparations for the benefit of their victims. In the years since, the ICC’s reparations scheme has generated a high level of expectations. Indeed, some have gone so far as to suggest that the very success of the Court will depend on its ability to effectively implement the Statute’s reparations regime. Nevertheless, little is known about how the scheme will work in practice. This is due in part to the fact that the documents governing the ICC establish the scheme in very general terms, and in part to the fact that the scheme is sui generis in that it is the first international process designed to award reparations to victims of mass atrocities in the context of criminal proceedings against individual perpetrators.

The aim of the latest in a series of ICC reports by the War Crimes Research Office (for which I serve as Director) of American University Washington College of Law, entitled Case-Based Reparations at the International Criminal Court, is, 1st, to highlight the need for the Court to establish principles relating to the operation of this scheme outside of the context of any single case; and 2d, to offer a number of proposals for the Court to consider when drafting these principles.

Among the issues that the Report suggests that the Court should consider when drafting its principles on reparations are the following:
► Timing. As a general matter, the report recommends that the Trial Chamber hold a separate reparations phase, after the Chamber has made a determination that an accused is guilty for one or more crimes under the jurisdiction of the Court.

► Definition of victims. The report proposes that, consistent with the definition of victim for purposes of participation, the Court make clear that “harm” may include material, physical, and psychological harm, and can attach to both direct and indirect victims; causation should be based on a standard of “proximate cause”; and the standard of proof should be something akin to preponderance of evidence/balance of probabilities. Importantly, the report suggests that the principles should make clear that the Chambers have wide discretion with regards to the evidence they may consider in evaluating whether the standard has been met.
► Types of available reparations. The report emphasizes that the Court should expressly recognize that there is no one-size-fits-all approach to reparations. Rather, the individual circumstances of each case must be considered and any combination of the different forms of reparations may be awarded, including both collective and individual. Significantly, some commentators have distinguished between perpetrators with assets and those without assets, suggesting that reparations should take the form of monetary compensation where the perpetrator is found to have resources. The report takes the position that the Court should not necessarily assume this to be true or that other forms of reparations are only appropriate in the case of perpetrators with limited or no resources. Indeed, it argues that there are a number of reasons why dispensing individual compensation payments directly to victims may not be the most appropriate award, even where the Court has access to a perpetrator’s assets.

► Use of experts. In all but most straightforward of cases, the report recommends that the Trial Chambers invoke its authority under Rule 97(2) of the ICC Rules of Procedure and Evidence to appoint appropriate experts to assist it in determining the scope and modalities of reparations awards. It further recommends that experts be used not only for processing awards (that is, making findings of fact regarding who qualifies as a victim and the harm suffered), but also for advising the Court on the substance of reparations awards, after extensive consultation with victims and other potential stakeholders.

► Role for the Trust Fund for Victims regarding case-based reparations awards. The report recommends that, wherever practicable, a Chamber should designate the Trust Fund for Victims as the “appropriate experts” under Rule 97(2) of the ICC Rules of Procedure and Evidence to assist it in the processing and determination of a reparations award. Several factors support the use of the Trust Fund for Victims in this context:

1st. Because the Trust Fund is authorized to provide assistance to victims of crimes falling within the jurisdiction of the Court outside the context of case-based reparations, it will often be the case that, by the time a Trial Chamber issues a final judgment convicting a particular perpetrator, the Trust Fund will have already conducted significant activity for the benefit of victims of the more general situation from which the individual case arose.

2d. Moreover, in determining which projects to implement under its general assistance mandate, the Trust Fund engages in many of the activities that will need to be undertaken in the processing and determination of case-based reparations awards.

3d. Finally, the report suggests that the use of the Trust Fund for Victims as the “appropriate experts” envisioned under Rule 97(2) is warranted because the Fund is a permanent institution that will have an ongoing relationship with the Court, which offers a benefit over the use of ad hoc bodies of experts appointed on a case-by-case basis in two ways. The Trust Fund will benefit from institutional knowledge and lessons learned in the implementation of both its general assistance and, over time, court-ordered reparations awards. And as a permanent institution, the Fund will be able to develop processes that its staff will follow across cases and situations, thereby increasing the likelihood that reparation awards will be perceived as fair.

The launch of the report – the twelfth in the ICC Legal Analysis and Education Project of the War Crimes Research Office (prior post) – was held on Friday evening, at the end of the first week of the Review Conference of the Rome Statute of the International Criminal Court near Kampala, Uganda. The panel discussion included remarks by Miia Aro-Sánchez (Embassy of Finland in The Hague) and Elena Bornand (Embassy of Chile in The Hague) – both of whom served as focal points on the impact of the Rome Statute system on victims and affected communities – Elizabeth Rehn, the Chairperson of the Trust Fund for Victims, yours truly and Katherine Cleary, Assistant Director of the War Crimes Research Office. The launch was attended by representatives of States Parties and nongovernmental organizations as well as ICC officials, including Kristin Kalla, the Acting Director of the Trust Fund for Victims and Paulina Massida, head of the ICC’s Office of Public Counsel for Victims.

(Cross-posted at ASIL Blog - ICC Review Conference)

Day One in Kampala

(Another in IntLawGrrls' series of Kampala Conference posts)

KAMPALA, Uganda – The Review Conference of the Rome Statute of the International Criminal Court opened here yesterday. Bill Pace, Convenor of the non-governmental Coalition for an ICC, noted that the event was likely the largest gathering of international criminal law experts ever held.

Several of the speeches in the opening high-level plenary referenced how important it is that the ICC address sexual and gender-based violence.

For example, UN Secretary-General Ban Ki-moon recognized the significant contributions the ad hoc tribunals for the former Yugoslavia and for Rwanda, along with the Special Court for Sierra Leone, have made in prosecuting rape and other sexual violence crimes and he urged the ICC to deal with sexual violence crimes as a priority.

In the afternoon, the Women’s Initiatives for Gender Justice launched its newest publication, Advancing Gender Justice: A Call to Action. The Call to Action focuses, in part, on how the ICC can better achieve gender-sensitive justice. Its recommendations include:

► A serious and significant increase in state and voluntary contributions to the ICC Trust Fund for Victims, including to Trust Fund’s donor appeal for victims of sexual violence launched in 2009;

► Development by the ICC’s judges of gender-inclusive, victim-centered guidelines on reparations for victims before the Court, authorized in Article 75 of the Rome Statute;

► Stronger and more consistent jurisprudence from the ad hoc tribunals, special courts and the ICC on forced marriage, forced pregnancy, forced sterilization and sexual mutilation;

► The ICC should ensure that its mechanisms support the exercise of the right of victims to apply to the Court for formal recognition and subsequent participation in the legal proceedings; and

► When countries implement the Rome Statute into domestic law, they should do so in a manner that is fully inclusive of the gender provisions of the Rome Statute.

This Call to Action was issued following one consultation in 2008 in Kampala with 155 women’s rights and peace activists, primarily from conflict situations under investigation by the ICC, and another at the April 2010 Internattional Gender Justice Dialogue (prior IntLawGrrls posts here and here). In addition, Women's Initiatives undertook ongoing consultation with women through its extensive country-based programming. The group has a delegation in Kampala of 30 women's human rights and peace activists from three of the four ICC situation countries.

The conversation on gender issues will likely continue throughout the Review Conference, especially as a result of the Women’s Court event, which Women's Initiatives has organized for today, and of the stocktaking exercises, set for later this week, which will focus on the impact of the Rome Statute system on victims and affected communities, peace and justice, complementarity and cooperation.

On February 5

On this day in ...
... 1997, Crédit Suisse, the Swiss Bank Corporation, and Union Bank of Switzerland, the 3 largest banks in Switzerland, announced the establishment of a '''humanitarian fund for the victims of the Holocaust,'' with an initial worth of around $70 million." The move marked the 1st offer of banks' own funds, and was, according to this New York Times report, an effort "to head off threats from them and from New York institutions of sanctions against Swiss banks, a pillar of the Swiss economy, that would further harm" reputations "battered" by "Switzerland's close financial relationship with Nazi Germany."

(Prior February 5 posts are here and here.)

What do women want? Tribunals' due attention to the needs of women & children

(Part 2 of a 3-part guest post on what women want from international criminal justice, by Judge Patricia M. Wald; Part 1 is here)

Womankind has a right to expect much from, and has a strong stake in the success of, international and hybrid tribunals.
Women and children represent the largest constituency of international humanitarian law and the tribunals that breathe life into it. They are the bulk of the casualties of war and the refugees of combat, the most numerous victims of war crimes, crimes against humanity, and genocide. A few statistics:
► One out of every 150 persons on earth is a refugee or displaced person due to armed conflict or human rights violations; at least 75% of them are women or children.
► In the conflict in Bosnia, there were an estimated 20,000 victims of sexual assault.
► An expert panel concluded that nearly every woman and girl over the age of 12 who survived the Rwandan genocide was raped.
Similar stories are being told today in Congo, in Darfur, and elsewhere. And so it has gone, for centuries, as far as women are concerned.
But the winds of war are changing direction, a bit anyway. And women worldwide look to our tribunals to stiffen up the breezes, to make it more perilous for combatants as well as civilian and military leaders to ignore or downplay the sufferings of women as “collateral consequences” of war. Just as they bear the greatest impact of war, women should have a right to claim a high priority in the strategic thinking of the tribunals.
But what does that mean in practice?
Dramatic strides have been made. All the tribunal charters specify, or have been interpreted to include, rape and other sexual violations as war crimes and crimes against humanity. Tribunal jurisprudence has elaborated on the variations of sexual abuse. Examples:
► In the Kristić case on which I sat, the International Criminal Tribunal for the former Yugoslavia pronounced the effect of executing more than 7,000 young male household heads – though sparing the women – as a form of genocide that intentionally destroyed a targeted group of Muslims in Srebrenica.
► Tribunals have made rape prosecutable by eschewing rigid definitions that required actual physical force in favor of recognizing broader kinds of coercion and intimidation, and have declared rape in some circumstances to be a form of torture and a tool of genocide.
► Virtually all the recent indictments from the International Criminal Court have contained gender-based allegations, although there is a need to flesh out the contours of as-yet-charged crimes like forced pregnancy and trafficking in women and children.
What else should women want – or expect?

Early investigation
I have heard repeated complaints from some women inside tribunal prosecution offices that the focus on gender-based crimes must, but does not always, come at the very beginning of an investigation. Field investigators, the first responders, have to be sensitized to the range of potential crimes involving women and children and how best to elicit the information to prove them.
In many cultures, sexually abused women are not the most vocal of complainants or the most eager of witnesses. Gender crimes may indeed be harder to investigate than other kinds of war crimes. They are often harder to prosecute as well, not only because of the traumatic effects on the victim who must face her perpetrator anew in the courtroom, but also because of the difficulty of linking the rapist with the military or civilian commander in a faraway headquarters who ordered or approved the rape-terror strategy.
Yet women have a right to expect that these despicable crimes will be given their rightful priority in the tribunals’ strategic litigation plans.
This means, in the view of many women tribunal veterans, intensive gender-crime training for all levels of prosecutorial staff. Judges too. And in the words of one such veteran, this means “more than one three-hour lecture.”

Women & the judicial process
Women judges and prosecutors also have special obligations to pay attention to the treatment of other women in the judicial process. The women who work for them, and those who appear before them as witnesses or litigators, can feel less isolated or out of place when there are women in positions of power and prestige in the courtroom. This proved true in my own experience in U.S. courts as well as at the ICTY. Some research shows that litigants’ evaluation of justice is directly related to how they perceive their own treatment by court personnel; in turn, how the judges and prosecutors act toward them will trickle down to all levels of courthouse personnel.

Witnesses & victims
In the tribunals there is a special need for women judges and prosecutors to be sensitive to the plight of women witnesses and victims. Often these women and young girls have been traumatized not only by the crimes committed but by threats of retaliation and by shunning in their villages. The tribunals have set up Victims and Witnesses Protection units to offer escort services, temporary housing during court proceedings, and in some cases counseling; it is vitally important that women judges and prosecutors champion the Registry’s financial needs for adequate services.
I am sorry to say that women witnesses have occasionally, albeit rarely, faced hostile or demeaning questioning or even derogatory comments and embarrassing attempts at humor at their expense, sometimes participated in by judges. On those rare occasions women judges have a special obligation to admonish counsel and to express their own discomfort, not to sit silently by or let them go unchallenged.

Victim compensation
Based on my own trial experiences, I know that women who have suffered the loss of family members – one woman who testified in one of my trials saw three generations of her menfolk wiped out in a week – want not only accountability but compensation. Only the ICC and the Extraordinary Chambers in the Courts of Cambodia have direct authority to grant it. Where the money will come from is, of course, a primary problem. Here is an area in which women and their allies must themselves be reasonable in their expectations and demands; they cannot expect full compensation for their economic losses, let alone their emotional sufferings. And after a decent interval has passed to see how the system works, they should be tolerant enough to cooperate in an evaluation as to both how intense an intervention by victims the process can sustain and what priorities on compensation from a limited fund are most reasonable.

Public outreach
Women outside the tribunal process also need to be given the opportunity to understand what the tribunals are trying to do in order to draw their own judgments on how successful they are. Some hybrids, like the Special Court for Sierra Leone, have pioneered in going out into the villages to explain their goals and processes. The necessity for understanding and support from women in the outside world also suggests the ICC might take some of its hearings out of The Hague and go to the places where the violations occurred, so that the affected communities can see for themselves the merger of crime and punishment.

(Tomorrow: interpreting crimes against humanity to protect women in peacetime)

Guest Blogger: Lisa Laplante

It's IntLawGrrls' great pleasure today to welcome guest blogger Lisa Laplante (right).
A Visiting Assistant Professor at Marquette University Law School in Milwaukee, Wisconsin, Lisa's worked in human rights for more than a decade, with institutions such as Human Rights Watch, the International Institute of Human Right in Costa Rica, and the Center for International Justice and Law. She also won a Furman Fellowship at Human Rights First.
Lisa's field experience began as a researcher with the Peruvian Truth and Reconciliation Commission, about whose work she writes in her guest post below. It discusses her article entitled "The Law of Remedies and the Clean Hands Doctrine: Exclusionary Reparation Policies in Peru's Political Transition," recently published by the American University International Law Review. As indicated by her many publications on the subject, Lisa's work in Peru continued for several years; for example, as legal advisor for victims groups litigating before the Inter-American human rights system and as co-founder and deputy director of Praxis Institute for Social Justice.
Lisa holds a J.D. from New York University School of Law, where she was a Root-Tilden-Kern Public Interest Scholar, a master's degree in education from the University of Massachusetts-Amherst, and a B.A. from Brown University with a concentration in Public Policy and Education.

Heartfelt welcome!

Guest blogger: Bernadette Atuahene

It's IntLawGrrls' great pleasure to announce today's guest appearance by Professor Bernadette Atuahene (left) of the Chicago-Kent College of Law in 2005, where she focuses her scholarship on confiscation and restitution of property. Before joining the Kent Law faculty she held a number of positions in law and international development: legal consultant for the World Bank; associate at New York's Cleary, Gottlieb, Steen & Hamilton; and human rights investigator for the Center for Economic and Social Rights. While at the last of these, Bernadette received Amnesty International’s Patrick Stewart Human Rights Award on account of her work with human rights organizations in South America. As a Fulbright Scholar, she served as a judicial clerk to Justices Tholie Madala and Sandile Ngcobo of the Constitutional Court of South Africa. Bernadette's just headed back to that country for several months' fieldwork.
In her guest post below, Bernadette presents her most recent work, From Reparation to Restoration.
Heartfelt welcome!

Toward restoration for the dispossessed

Thanks to IntLawGrrls for this giving me this opportunity to appear as a guest-blogger.
In this post I present what constitutes the 1st of a planned trilogy of articles on issues related to property dispossession. Entitled From Reparation to Restoration: Moving beyond Restoring Property Rights to Restoring Political and Economic Visibility, and just published in the Southern Methodist University Law Review, this article explores 2 important questions facing countries that decide to give communities and individuals compensation for property stolen in the past. The questions are:
► Who at minimum should be restored?
► How should the restorative process transpire?
As to the 1st question, I argue that, at minimum, the state has a moral obligation to compensate people who have been subjected to severe dehumanization as a result of an uncompensated property confiscation. My claim is that this confiscation of property results in property-induced invisibility; that is, people are removed from the social contract and made invisible. Instances of such property-induced invisibility can be seen throughout history among native peoples whose land was stolen through conquest. Also, Tutsi and moderate Hutu subjected to property confiscation during the Rwandan genocide. The dispossession of nonwhites during apartheid governments' incessant campaign of dehumanization would be yet another modern-day examples of property-induced invisibility.
As to the 2d question, I argue that societies must redirect their focus from the limited concept of reparations to restoration. When the concept of reparations is invoked, the goal is to secure compensation for past wrongs; however, the state does not allow the dispossessed to choose how they are compensated. Restoration, in contrast, is a larger project -- a project of restoring a dispossessed group or individual’s relationship to society, of including them in the social contract and thereby reversing the condition and effects of their property-induced invisibility. Restoration is accomplished through a bottom-up process that provides asset-based choices; that is, choices that both allow people to decide how they are to be made whole and give people viable options from which to make that decision. The options may vary according to what is possible; for example:
► return of property
► alternative property
► monetary compensation
► free higher education for 2 generations
► priority in an already established housing process
► highly subsidized access to credit
The article then moves to an evaluation of South Africa’s Land Restitution Program, as a means of testing the theoretical concepts of property-induced invisibility and restoration previously set forth. More specifically, I investigate whether, as a baseline, South Africans who were subjected to property-induced invisibility are benefiting from the Land Restitution Program. In addition, I offer recommendations on how the government can transform the Land Restitution Program from a reparations program to a restoration program.

(photo courtesy of South Africa's Commissions on Restitution of Land Rights)