Remembering Beijing: The Ferraro Factor

(Thanks to IntLawGrrls for the opportunity to contribute this guest post)

Geraldine A. Ferraro, who passed away this weekend, is a symbol of women’s rights advocacy.
As America’s first female candidate of a major party for vice-president, she broke barriers. But readers of IntLawGrrls may not know how actively and directly she influenced women’s rights issues in the international legal context as well.
Appalled by televised reports about the use of rape as a weapon of war by Serbs in the Bosnian conflict, Gerry contacted Madeleine Albright to ask what the new Clinton Administration was doing about it. She was immediately asked to join the Administration’s first delegation to the UN Commission on Human Rights in Geneva, in February 1993, where she helped convince Member States to adopt a separate resolution addressing rape in war.
As Gerry told it, accomplishing this task required her to conduct gender-sensitivity training, too. For example, she found herself telling the male diplomats from the Islamic Conference that they needed to recognize that such sexual violence was not so much an insult to THEIR ‘honor’ (which was all they were prepared to declare) but rather a very real lasting physical and psychological abuse of the women who were victimized. Gerry emphasized that something serious had to be done by the Commission to name it, stop it, punish the perpetrators and aid the survivors. As a result, the Commission adopted a resolution that called for ‘joint and separate action to end this despicable practice,’ as well as for investigations, accountability and assistance to the victims.
Later that year, the protection of women’s rights was affirmed as a major focus of the UN World Conference on Human Rights in Vienna – only a few hundred miles from Bosnia itself.
Gerry was then appointed to head the US delegation to the Commission on Human Rights in Geneva as Ambassador. After she took the reins of the delegation for its 1994 session, the UN created the post of Special Rapporteur on Violence against Women, with a mandate to investigate and intervene to stop abuses worldwide. Additionally, at Gerry’s direction, attention to women’s rights and a gender perspective was incorporated into UN resolutions authorizing many other investigations into human rights abuses.
The following year, after setbacks at a spring Preparatory Conference (“Prepcon”), women advocates realized it was urgent to have strong US leadership on women’s human rights issues as a part of the negotiating team for the upcoming Beijing World Conference on Women, scheduled for September 1995. The World Conference was under attack from various quarters – representatives of the Vatican and Islamic countries had worked vigorously at the Prepcon to place large portions of the draft Platform for Action into brackets (meaning they would remain open to negotiation) and had added proposals challenging the universality of human rights. Some opponents of the Conference offered the concept of ‘human dignity’ as an alternative to that of equal rights (i.e., women might have dignity but may not have equal rights). Others demanded recognition of parental rights and duties rather than the human rights of women and girls, and questioned the use of the word gender. The topic of reproductive rights was challenged directly in ways seeking to undermine advancements stemming from the October 1994 Cairo World Conference on Population and Development.
Gerry was appointed a vice-chair of the US delegation to Beijing in June 1995 and reached out immediately to NGOs and experts alike to work with her and tackle the issues one by one. She engaged in a wide range of informal contacts to try to improve the diplomatic atmosphere—and to reach agreements that affirmed rather than destroyed women’s universal rights. Ensuring a successful outcome in Beijing required her to engage with critics at home, as well as to interact with the representatives of the Vatican and Islamic states from Iran to Sudan. Conference language affirming universality of women’s human rights was threatened by other proposed language that would have both endorsed cultural relativity and emphasized national sovereignty, in particular, through repetition of a key footnote that had ‘saved’ the Cairo conference by encouraging each country to interpret the rights any way it wished. In the end, Gerry Ferraro succeeded in maintaining a US position that preserved the emphasis on universality of women’s rights for all, and concentrated on ensuring equal rights for women.
Hillary Clinton’s remarkable speech at the Conference fixed in delegates’ minds the concept that “women’s rights are human rights” and that they are not something different, inferior, or diminished as compared to other human rights.
The Beijing Declaration and Platform for Action went on to affirm that violence against women was not merely an ‘obstacle’ to equality and peace as had been stated earlier in the 1980 Copenhagen World Conference on Women, but also an abuse that impaired and violated the enjoyment of human rights by women. It defined violence against women broadly – as a phenomenon occurring in public and in private – that had to be prevented, outlawed and punished. The document calls for reporting and monitoring of violations, investigations and prosecutions of perpetrators, due diligence by governments and accountability. The document identifies rape in armed conflict – the issue that spurred Ferraro to engage with the UN’s human rights bodies – as a war crime and under certain circumstances as a crime against humanity or act of genocide. The Beijing World Conference advanced women’s rights both conceptually and politically.
Gerry Ferraro, who was born on Women’s Equality Day (August 26), could claim a victory for the ideas, strategies, and ongoing efforts to bring women’s human rights issues into the mainstream of UN human rights bodies and world attention. Here, as in her unprecedented political candidacy, her efforts and achievements strengthened the position of all women.

(credit for September 12, 1995, UN/DPI 120801 photo by Chen Kai Xing of Ferraro, center, in Beijing)

On February 17

On this day in ...
... 2008, "in an extraordinary meeting" held on a Sunday in Pristina, the Kosovo Declaration of Independence. Pivotal paragraphs:

1. We, the democratically-elected leaders of our people, hereby declare Kosovo to be an independent and sovereign state. This declaration reflects the will of our people and it is in full accordance with the recommendations of UN Special Envoy Martti Ahtisaari and his Comprehensive Proposal for the Kosovo Status Settlement.
2. We declare Kosovo to be a democratic, secular and multi-ethnic republic, guided by the principles of non-discrimination and equal protection under the law. We shall protect and promote the rights of all communities in Kosovo and create the conditions necessary for their effective participation in political and decision-making processes.

(credit for image of Kosovo coat of arms) As readers of IntLawGrrls' Kosovo posts know, last summer, an Advisory Opinion of the International Court of Justice deemed the unilateral proclamation of independence from Serbia to be in accordance with international law. There seems to have been little movement toward fully realized statehood; U.N. membership, for example. This may be due in part to various scandals swirling about Kosovo's leadership -- a situation that led a BBC commentator recently to describe Kosovo's uncertain status as "unfinished business which has implications that range far wider than this small territory in the former Yugoslavia."


(Prior February 17 posts are here, here, here, and here.)

Kosovo: Secession dilemma déjà-vu

(Many thanks to IntLawGrrls for giving me the opportunity to contribute this guest post!)

Since 17 February 2008 – the day of Kosovo’s declaration of independence from Serbia – it has become rather pressing to understand whether this act has legal precedential value and hence what its consequences are. The International Court of Justice (below right) issued an Advisory Opinion on Kosovo this past summer. (Prior IntLawGrrls posts available here.) But that opinion has not shed much, if any, light on the question of precedence.
Whether the Court was asked, on the one hand, to analyze the legal consequences of the independence of Kosovo, or, on the other hand, merely to “narrow[ly] and specific[ally]” reply whether “the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo is in accordance with international law,” remains, of course, a separate debate.
Be it as it may, the dilemma remains:

Is Kosovo a precedent for (remedial) secession?

My article recently published in the Goettingen Journal of International Law, "Secession in Theory and Practice: The Case of Kosovo and Beyond," attempts to put forward a lucid account of the legal implications of Kosovo’s independence. To do so, the article explores the international regulations on secession, as well as the circumstances that led to the case at hand.
The paper carves out the place of secession in international law by appeal to fundamental principles and legal doctrine, and concludes:
► There is no general jus secedendi, or right to secede.
► There are instances in which a right to secession is recognized under international law. These refer to states explicitly acknowledging a right to secession in their domestic law, or multinational states recognizing that their constituent peoples have the right to self-determination.
► There is one controversial case that divides scholarship, the one of remedial secession.
► Lastly, there is a trend towards the legality principle governing secessions, as distinguished from the traditional neutrality doctrine.
It is useful to consider the theory on secession with state practice, to the extent that such practice can be discerned from major socio-political events of Kosovo’s history – from the battle of Kosovo Polje in 1389 to Security Council Resolution 1244 (1999) that set up the United Nations Interim Administration Mission in Kosovo (UNMIK). From the juxtaposition of this theory and practice, a second conclusion can be drawn: Kosovo is a case of remedial secession and thus it represents a potential legal precedent.
And yet the exceptionality discourse!
While the elements of remedial secession are gathered, states deprived this instance of practice of its precedential value, and made it a legally insignificant act.
Some explanations are in order.
An action that is novel or inconsistent with current practice gains precedential value if other states accept it; acquiescence and protest are the fundamental state reactions to an action, therefore those are of interest in the case of Kosovo. Serbia, as the state with most interest in resolving the Kosovo case, has strongly protested against the legality of Kosovo’s secession. Other states protested or decided to withhold recognition. All officially identify the potential of setting a legal precedent as reasoning.
The fascination about the Kosovo case lies in the discourse of those states that chose to support and recognize Kosovo as an independent state, describing it as a sui generis/special/exceptional case. Throughout the years that it has sought independence from Serbia, Kosovo has maintained that it has the legal right to do so. In this context, the most staggering statement is made by Kosovo itself in its own declaration of independence:

Kosovo is a special case arising from Yugoslavia’s non-consensual breakup and is not a precedent for any other situation.

The Kosovo secession has been articulated, but as a non-precedential situation. In the end, as scholars Georg Nolte and Helmut Philipp Aust wrote in an article published last year,

states are both subjected to international law and create and authoritatively interpret it.

And in this case, even the recognizing states have consciously and clearly opted not to create a general rule governing remedial secession. Ultimately, states have guarded the status quo, and continued to act allergic to a right to remedial secession with set boundaries and clear coordinates. Ironically, the consistent state practice is evidence of the absence of a customary right of remedial secession.
In other words, the international community missed a rare opportunity to clarify the concept of remedial secession and to reassert its preventive force as a non-traditional human rights protection mechanism. The consequences of not assuming the precedent are, regrettably, far more important.
The force of remedial secession lies in its prevention potential – empowering minority groups to hold governments accountable to their international obligations. It is not an implosive weapon within the Westphalian system, but rather a non-traditional human rights mechanism.
By presenting Kosovo as unique, the international community undermined the theory of remedial secession, and made states and their borders sacrosanct even when a government, by way of its discriminatory and repressive actions against part of its population, puts its own raison d’être into question. It is a perverse implication, one that states will have to deal with when another unique Kosovo enters the international arena.
Thirty-nine years ago, Bangladesh seceded from Pakistan. The debate whether Bangladesh set a precedent for a right to remedial secession continues. Regrettably, Kosovo is merely a Bangladeshi déjà-vu.

On November 12

On this day in ...
... 1920 (90 years ago today), at a town near Genoa, the Treaty of Rapallo was signed (right) by the Kingdom of Serbs, Croats, and Slovenes and the Kingdom of Italy. (ohoto credit) By the terms of the treaty a number of territories, containing populations of varying ethnicities, were annexed to Italy. An independent state known as Fiume also was established; later it became part of Yugoslavia.

(Prior November 12 posts are here, here, and here.)

Not so fast toward the EU?

'Our children must not be burdened by policies of the 1990s.'

So said Serbian President Boris Tadić a few days ago, while laying a wreath near Vukovar, Croatia, where Serb forces executed more than 200 hospital patients as part of a 3-month siege in which more than 1,000 Croats were killed, 5,000 civilians seized, and 22,000 non-Serbs expelled. (credit for Reuters photo)
Tadić said he had come

to pay respect to the victims, to say words of apology, to show regret and create a possibility for Serbia and Croatia to turn a new page.

Part of that post-atonement chapter, Serbia hopes, is European Union membership, so that Serbia no doubt welcomed subsequent EU and the U.S. State Department comments heralding the visit as a welcome step toward reconciliation.
But the move brings to mind the objection that Serge Brammertz (below right), Chief Prosecutor of the International Criminal Tribunal for the former Yugoslavia, raised regarding any plan to allow EU admission while ICTY indictees like former Bosnian Serb General Ratko Mladić remain at large. As we've posted, Brammertz has said:

Be sure to ask countries to support the tribunal. There is a tendency to think, 'Let's move on. Let's take the countries into the international community. We are saying, 'There can be no compromise. There can be no alternative to bringing the fugitives to justice.'

The Asylum Law Round-Up

In the past two weeks, two federal courts of appeals have weighed in on important asylum issues, yet again demonstrating the poor quality of decision-making at the immigration courts and the Board of Immigration Appeals (BIA) and the importance of access to judicial review for asylum seekers.

Last Monday, in Todorovic v. Attorney General, the Eleventh Circuit vacated and remanded an immigration judge's decision denying an asylum claim because he did not believe that the asylum seeker was gay. As the Court noted, the immigration judge "relied impermissibly on stereotypes about homosexuals" to find that the applicant was not a credible witness.
The applicant, Todorovic, described a litany of abuses, from rape to severe beatings, that had been perpetrated upon him by various state and non-state actors in Serbia and provided ample corroboration of his claims. He further explained that these instances of persecution occurred either because the perpetrators knew he was gay or because he was in a gay bar or with his boyfriend, a gay rights activist. Yet the immigration judge held:

The Court studied the demeanor of this individual very carefully throughout his testimony in the Court today, and this gentleman does not appear to be overtly gay . . . since he bears no effeminate traits or any other trait that would mark him as a homosexual.

Of even greater concern, based on the record described above, the Board of Immigration Appeals affirmed the immigration judge's determination that Todorovic was not a credible witness. Even under the highly deferential substantial evidence test, the Eleventh Circuit could not support this determination. While Todorovic can celebrate this outcome, it was disturbing to note that this was the fourth court of appeals decision in the past four years to overturn an immigration judge's credibility findings because they were based on stereotypes about gays. This reveals a significant failure of training in the immigration courts and of effective review at the BIA.
On Wednesday, in Cheng v. Attorney General, the Third Circuit remanded to the BIA the case of a young Chinese woman who claimed persecution based on her opposition to China's coercive population control policies. Cheng became pregnant by her boyfriend at the age of nineteen; though they wanted to marry, their village forbade women from marrying before the age of twenty-three. When town officials discovered her pregnancy, they tried to force her to have an abortion. Cheng fled, and when the officials learned she had given birth elsewhere, they confiscated her family's farm and truck, on which Cheng's family depended to earn a living. The town government ordered that Cheng and her boyfriend be sterilized, and threatened to take her baby from her and detain her boyfriend for months if she did not cooperate. Under this pressure, Cheng agreed to have an IUD inserted, which was particularly painful, and was forced to submit to gynecological exams every three months to verify its presence (and was assessed significant fines when she was unable to appear for these exams). Because she had two more children in the United States, Cheng feared sterilization upon return to China.
The immigration judge, finding Cheng credible, initially granted her claim, but then the BIA vacated the decision and remanded it for further proceedings in light of their recent decisions on China's population control policies. The BIA concluded that mandatory IUD insertion alone does not render an applicant eligible for asylum, but failed to address Cheng's resistance to the IUD and the harms that resulted. The immigration judge on remand denied the asylum claim, and on Cheng's second appeal, the BIA affirmed. (credit for photo at left).
Again, even applying the substantial evidence standard of review, the Third Circuit was compelled to disagree. The Court laid out the history of the coercive population control provisions of U.S. asylum law. In 1989, the BIA decided that China's family planning policies, even where they resulted in forced sterilizations, could not be considered persecution. Congress disagreed, and in 1996, expanded the definition of refugee to include those who suffered forced abortion, forced sterilization, or persecution for resistance to a coercive population control law. In 2008, the BIA decided that forcible insertion of an IUD, though "intrusive", does not rise to the level of persecution without aggravating circumstances.
Though it was disappointing that the Third Circuit did not dismantle this standard, the court sidestepped it by holding that the aggregate mistreatment suffered by Cheng constituted persecution on account of her resistance to China's population control policies. Again, the case presents a chilling reminder of the limitations of review by the BIA and the administrative asylum process. What has become of the Chengs and Todorovics of the world who were not able to pursue their asylum appeals into the federal courts?

On October 5

On this day in ...
... 2000 (10 years ago today), in what the BBC called a "relatively peaceful revolution," demonstrators "stormed the Yugoslav parliament building in Belgrade" (right) and "ransacked" the building housing state broadcast channels. (credit for AP photo) The crowds were protesting the intention of Serb President Slobodan Milošević to remain in office after contested elections that many believed his opponent had won. Within a day after these demonstrators, Milošević had resigned from office; within a year, he was transferred to a detention center at The Hague; within 6 years, he had died while still on trial before the International Criminal Tribunal for the former Yugoslavia.

(Prior October 5 IntLawGrrls posts are here, here, and here.)

Not liking Lotus in Kosovo

New sighting of old law is not always a welcome event.
Take glimpses of Lotus in Kosovo, for example.
Kosovo, as detailed in yesterday's post, refers to the Advisory Opinion on Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo issued on July 22 at the Peace Palace (above) in The Hague, Netherlands. (photo credit)
About 7-1/2 months after the proclamation on February 17, 2008, of the Kosovo Declaration of Independence, the U.N. General Assembly asked the 15-member International Court of Justice: Is that declaration "in accordance with international law"?
"The answer to that question," the ICJ reasoned in ¶56 of its principal opinion, "turns on whether or not the applicable international law prohibited the declaration of independence." Below the surface of that phrasing, this reader caught sight of S.S. Lotus, the 1927 Permanent Court of International Justice holding that international law permits whatever it does not prohibit. Yesterday's post pointed to problems this methodology creates, and further noted that Lotus receives no citation on any of the principal opinion's 44 pages.
In point of fact, though the Kosovo judgment comprehends 9 additional, separate opinions, Lotus is discussed only once anywhere -- in the 3-page Declaration filed by Judge Bruno Simma (left).
Simma too saw Lotus lurking in ¶56. He did not like what he saw.
Adoption of the Lotus approach "reflects an old, tired view of international law," wrote Simma, whose many academic positions include former Law Dean at the University of Munich and current Visiting Law Professor at the University of Michigan. Simma's Declaration variously termed such reasoning "mechanical," "obsolete," "anachronistic, extremely consensualist," and "redolent of nineteenth-century positivism, with its excessively deferential approach to State consent." A onetime advocate before the Court in cases such as LaGrand, Simma lamented what he considered a missed opportunity for the ICJ "to move beyond" in Kosovo:

The Court could have considered the scope of the question from an approach which does not, in a formalistic fashion, equate the absence of a prohibition with the existence of a permissive rule; it could also have considered the possibility that international law can be neutral or deliberately silent on the international lawfulness of certain acts.

Simma imagined "a deeper analysis" of whether self-determination or remedial secession -- concepts raised in submissions during the pendency of the Kosovo case -- "permit or warrant independence (via secession) of certain peoples/territories." He continued:

[T]he Court could have delivered a more intellectually satisfying Opinion, and one with greater relevance as regards the international legal order as it has evolved into its present form, had it not interpreted the scope of the question so restrictively. To treat these questions more extensively would have demonstrated the Court's awareness of the present architecture of international law.

Forcing an act into a Lotus-like legal/illegal binary refuses to consider the act along a spectrum that includes other labels, such as "tolerated," "permissible," and "not illegal," that may be less clear yet, in Simma's view, clearly reflect the needs of present-day international law.
The future will tell whether Simma's succinct Declaration augurs something new in the ICJ, an institution whose 65-year-old Statute assumes -- as did the PCIJ in Lotus -- that international law primarily governs disputes between sovereign states, resoluble by litigation limited to states alone.

(Part 1 of a 2-part series; Part 1 is here)

Leviathan below Kosovo

Just below the surface of the recent advisory opinion on Kosovo lurks an international law leviathan.
Lotus may float again.
More than 80 years ago the Permanent International Court of Justice wrote in The Case of The S.S. Lotus, named after the steamship at right (prior post):

International law governs relations between independent States. The rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law and established in order to regulate the relations between these co-existing independent communities or with a view to the achievement of common aims. Restrictions upon the independence of States cannot therefore be presumed.

What followed from that passage is called the Lotus principle. Distilled to its essence by Lotus dissenter Bernard Cornelis Johannes Loder (right) (credit), a Judge who'd served as the PCIJ's President from 1922 to 1924, the principle is this:

[U]nder international law everything which is not prohibited is permitted.

As discussed here by Christopher Greenwood -- at that time an advocate before the PCIJ's successor, the International Court of Justice, and now a Judge on that Court -- the Lotus principle figured overtly in the ICJ's 1996 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons. More subtle is the role that Lotus plays in the Court's most recent decision, the Advisory Opinion on Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo. That ICJ examination of the declaration proclaimed in Pristina on February 17, 2008 was issued on July 22. (See prior post and new ASIL Insight.)
Lotus is not cited once in the 44 pages of the principal opinion in Kosovo. Yet one hears loud Lotus soundings in Kosovo passages like these:

... the General Assembly has asked whether the declaration of independence was 'in accordance with' international law. The answer to that question turns on whether or not the applicable international law prohibited the declaration of independence. ...[¶56]

In no case, however, does the practice of States as a whole suggest that the act of promulgating the declaration was regarded as contrary to international law. On the contrary, State practice during this period points clearly to the conclusion that international law contained no prohibition of declarations of independence. [¶79]

Finding neither a general nor a specific international legal prohibition, the principal opinion left open space within which to act -- space that, in an unpublished analysis of U.S. counterterrorism policy, I have dubbed a "Lotus hole." (See n.114.) Combined with principles like territorial integrity and political independence -- guaranteed in Article 2(4) of the U.N. Charter -- the Lotus hole typically accords a state considerable freedom of action.
In Kosovo, however, that typical result took a curious turn.
Disputants in the 1927 Lotus case were France and Turkey, indisputably sovereign states. But the actors given freedom by the ICJ's newest ruling were not representatives of a State -- at least, the Court took pains in ¶51 to decline decision on "whether or not Kosovo has achieved statehood."
Nor did those actors comprise the Assembly of Kosovo, a body whose ultra vires actions are bound to be annuled by a U.N. Special Representative, head of UNMIK, the U.N. Mission in Kosovo. The Court held quite to the contrary. Labeling the actors "the authors of the declaration," the Court found their action "outside that order" set up by international civil institutions. [¶105]
That the declaration affected the territorial integrity of the State of Serbia mattered not, for the reason that the persons making the declaration were not agents of a state, and, as the Court wrote in ¶80,

the scope of the principle of territorial integrity is confined to the sphere of relations between States.

The Court reasoned, in brief, that the action was not prohibited by the international law which, to quote Lotus, "governs relations between independent States," and as a matter of that same international law, the "authors" thus were free to act.[¶ 121]
Call it a Lotus hole for nonstate actors.
One might see in this topsy-turvy result an end, for good or ill, to the Westphalian system. Before jumping to that position, however, consider downsides the declaration's authors face post-Kosovo.
The very finding of nonstate status leaves open the question of what, now, Kosovo is.
► Has it "achieved statehood"?
► May Kosovo, as the authors declared it would, "undertake the international obligations of Kosovo" [¶75], engaging in external relations as do other sovereign states?
► Or is Kosovo, rather, some interim entity, a collection of people who have proclaimed the place they inhabit to be independent, yet who cannot exercise all attributes of sovereignty?
Further navigation of international politics is required for closure of holes left open by this international law judgment.
As tomorrow's post will tell, one member of the Kosovo bench (credit) lamented this Lotus-driven result.

(Part 1 of a 2-part series; Part 2 here)

New flash: Kosovo a state independent, per International Court of Justice

[FINAL UPDATE 8:42 p.m. EDT:] Now on the ICJ website is a pdf of the 40-plus-page Advisory Opinion on Accordance with international law of the unilateral declaration of independence in respect of Kosovo.
Voting on the ultimate opinion, that Kosovo's February 17, 2008, declaration of independence did not violate international law:
In favor:
ICJ President Hisashi Owada (Japan), as well as Judges Awn Shawkat Al-Khasawneh (Jordan), Thomas Buergenthal (United States), Bruno Simma (Germany), Ronny Abraham (France), Kenneth Keith (New Zealand), Bernardo Sepúlveda-Amor (Mexico), Antônio A. Cançado Trindade (Brazil), Abdulqawi Ahmed Yusuf (Somalia), and Christopher Greenwood (United Kingdom).
Against:
ICJ Vice-President Peter Tomka (Slovakia), as well as Judges Abdul G. Koroma (Sierra Leone), Mohamed Bennouna (Morocco), and Leonid Skotnikov (Russia).
Therein lies a rub.

* * *

[UPDATE 3 p.m. EDT:] Per this article, the 10-4 ICJ ruling did not go so far as to declare Kosovo a state:

[L]egal experts emphasized that while the court had ruled that Kosovo’s declaration of independence was legal, it had scrupulously avoided saying that the state of Kosovo was legal under international law, a narrow and carefully calibrated compromise that they said could allow both sides to declare victory in a dispute that remains raw even 11 years after the war there.

Website still inaccessible.

* * *

[1:04 p.m. original post:] So says this article respecting a just-issued Advisory Opinion on Kosovo, formerly a province of Serbia. Perhaps not surprisingly, the International Court of Justice website's overfull. More later.

ICC Review Conference Considers When International Criminal Adjudication Makes Sense

(Delighted to welcome back alumna Margaret deGuzman, who contributes this guest post to IntLawGrrls' series on the ICC Kampala Conference)

KAMPALA, Uganda – As others have noted in this series of posts, the Review Conference of the Rome Statute of the International Criminal Court under way in Kampala has devoted two days to a “stocktaking” exercise. The idea was to review key issues in international criminal justice with a view to enhancing the work of the ICC. These portions of the Review Conference felt a lot like law school panel discussions, except that after the panelists spoke they took questions and comments from representatives of states and NGOs rather than from faculty and students.

Two of the stocktaking topics – peace/justice and complementarity – raised important issues relevant to the advisability and legitimacy of ICC prosecutions in particular situations. The peace/justice discussion considered whether it is ever appropriate for justice to be sacrificed in the name of peace (a question on which IntLawGrrl Kathleen A. Doty yesterday posted with regard to Darfur). The complementarity session, meanwhile, concerned how the task of providing justice should be allocated between international and domestic courts. This post provides some details on those discussions, as well as a few thoughts about what was left out.

Peace/justice

Setting the stage for the peace/justice session was Human Rights Watch Executive Director Kenneth Roth session, who questioned the common assumption that peace and justice are in conflict. As evidence of a more harmonious relationship between these goals, Roth cited the claim by Richard Goldstone, the 1st Prosecutor of the ad hoc tribunals, that the Dayton peace accord would not have been possible without the issuance of arrest warrants of Bosnian Serb leaders Radovan Karadžić and Ratko Mladić. Roth also noted that many believe the peace process was assisted both by the indictments of Charles Taylor, then President of Liberia, by the Special Court for Sierra Leone and by the ICC’s pursuit of the leaders of the Lord's Resistance Army in Uganda. In contrast, Roth noted that amnesty agreements have often failed to secure lasting peace, citing Sierra Leone and Angola as examples.

David Tolbert, formerly Deputy Chief Prosecutor at the International Criminal Tribunal for the former Yugoslavia and now head of of the International Center for Transitional Justice, opined that amnesty is now entirely off the table in conflict resolution efforts. Tolbert noted, however, that prosecutors must be sensitive to the political situation on the ground – although politics can’t impact the decision to prosecute they might affect the timing of prosecutions.

Providing a somewhat different perspective was James LeMoyne, an experienced conflict mediator. LeMoyne emphasized the importance of stopping conflict to advance human rights. He recalled the threats of commanders with whom he negotiated in El Salvador that any talk of prosecution would lead directly to more killing. LeMoyne also pointed out that many of the people with whom he negotiates have not even heard of the ICC.

Barney Afako, a Ugandan human rights lawyer, cautioned that the LRA arrest warrants may have prevented an agreement to end the war, while Cambodian activist and Khmer Rouge survivor Youk Chhang asserted that victims always want justice. State representatives also expressed conflicting views on the peace/justice debate.

While many delegates, including representatives of Congo and the European Parliament, emphasized the importance of justice for peace, China expressed the view that the two sometimes conflict and that the ICC should be more careful about exercising jurisdiction in ongoing conflicts. Iran also spoke out in favor of amnesty in some circumstances.

In sum, the discussion surfaced many of the crucial and controversial elements of the peace/justice debate. At the same time, there was little concrete discussion of the ICC’s contributions thus far to peace or justice, and even less progress in resolving how the ICC should approach the selection of situations and cases in ongoing conflicts.

Complementarity
The complementarity discussion was kicked off by U.N. High Commissioner for Human Rights Navanethem Pillay (right) (prior posts), who raised concerns about the ICC’s policy of focusing on the most responsible perpetrators. Pillay worried that the policy may leave states with the impression that national prosecutorial obligations are also limited to high-level perpetrators. Pillay also expressed the hope that the ICC’s complementarity regime would promote respect for the ability of states to conduct trials for international crimes; in so doing, she stated that the ad hoc tribunals have not always shown such respect. She implicitly criticized decisions by which the International Criminal Tribunal for Rwanda (of which she previously served as President, before becoming an ICC Judge and, subsequently, the High Commissioner) refused to transfer cases to the domestic courts, refusals based on the ICTR's conclusion that domestic trials would not meet international standards.

Two national court judges involved in adjudicating international crimes provided interesting perspectives from the national justice side. Justice Dan Akiiki-Kiiza of Uganda, along with a Congolese counterpart, emphasized that their national systems are cooperating with the ICC. Interestingly, however, Justice Kiiza also stated that the Ugandan system is both willing and able to try all suspected criminals – in effect, saying that Uganda doesn’t really need the ICC.

The state interventions after the panel were mostly pledges of support for the notions that states must take primary responsibility for prosecuting international crimes and reiterations of the view that it is appropriate for both the ICC and states to assist one another in developing such capacity.

Some states, including Spain and Germany, seemed concerned about the ICC’s policy of “positive complementarity,” whereby it seeks to assist states in bolstering their ability to prosecute international crimes. These states were concerned that positive complementarity implies some additional bureaucracy outside the confines of the Rome Statute. The German representative noted that complementarity is a negative concept in Article 17 of the Rome Statute, which precludes the ICC from intervening when a relevant state is doing so genuinely.

At the end of the session, however, ICC Prosecutor Luis Moreno-Ocampo (near left) addressed the issue. (photo credit) In Moreno-Ocampo's view, the statutory basis for “positive complementarity” is not Article 17, but rather Article 93(10), which authorizes the Court to provide various kinds of assistance to states. Moreno-Ocampo assured the states that no additional bureaucracy is needed for such assistance, since the ICC already possesses the relevant information and materials by virtue of its regular activities.

Finally, the ICC President, Judge Sang-Hyun Song (above, far left), said that in his view, complementarity is either a rule of customary international law or close to attaining that status.

In all, the complementarity discussion was fairly uncontroversial – certainly less so than peace/justice. Like in the earlier session, though, there were little in the way of concrete suggestions concerning the appropriate relationship between the ICC and national courts. A number of difficult issues remained just under the surface of the conversation – including whether it is appropriate for the ICC to prosecute “self-referred” cases if the referring government is perfectly capable of doing the job itself.

Conclusion
In all, the Review Conference’s stocktaking on peace/justice and complementarity was more interesting for its tone than its content. Unlike at the 1998 Rome Conference, where many states expressed skepticism or even outright hostility toward the notion of international criminal justice, those that spoke in Kampala were overwhelmingly supportive of the enterprise. Even non-party states that have traditionally portrayed the ICC as an improper assault on sovereignty were careful to couch their comments as broadly supportive of international justice efforts.

Anyone who was hoping for a more substantive and introspective discussion of the legitimacy of ICC action was, however, disappointed.

ICC reports Sudan's non-cooperation to Security Council

Pre-Trial Chamber I of the International Criminal Court has rendered a decision in the case of Prosecutor v. Harun and Ali Kushayb, informing the U.N. Security Council about Sudan's lack of cooperation in the proceedings.
The decision issued Tuesday was in response to the Prosecutor's April 19 request for a finding on Sudan's non-cooperation in executing warrants, issued by the Chamber 3 years earlier, for the arrest of former State Minister for the Interior Ahmad Muhammad Harun and militia leader Ali Muhammad Ali Abd-Al-Rahman, also known as Ali Kushayb. In these past 3 years, Sudan has refused to cooperate in efforts to deliver Harun, who faces 42 counts of war crimes and crimes against humanity, and militia leader Ali Kushayb, who faces 50 counts of war crimes and crimes against humanity, to the Court. Moreover, Sudanese President Omar al-Bashir, who himself is the subject of an ICC warrant for arrest (prior IntLawGrrls posts), has publicly denounced the proceedings and vowed never to turn a single Sudanese citizen over to the Court.
It is in this context that Pre-Trial Chamber I -- comprising Presiding Judge Sylvia Steiner (Brazil) (left) and Judges Sanji Mmasenono Monageng (Botswana) (below, near left) and Cuno Tarfusser (Italy) -- issued Tuesday's decision. It gave notice of Sudan's non-cooperation to the Security Council, which in Resolution 1593 (2005) had referred the situation in Sudan to the ICC.
While Sudan is not a party to the Rome Statute of the ICC, the Chamber noted that as a U.N. member state, Sudan is obligated under Article 25 of the U.N. Charter to comply with Resolution 1593 -- and that paragraph 2 of that resolution states that Sudan

shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor ....

In its order, the Chamber simply stated that its decision was to be transmitted to the Security Council so that the Council could

take any action it may deem appropriate.

While it remains to be seen how the Security Council will respond to the Chamber's decision, the Council has responded to reports of non-cooperation from international tribunals in the past. For example, in 1996, the Council condemned the Republic of Serbia's and Serbia and Montenegro's failure to execute arrest warrants against Radovan Karadžić and Ratko Mladić after receiving a report from the President of the International Criminal Tribunal for the former Yugoslavia that referred to an ICTY Trial Chamber's finding that neither State was cooperating with the execution of the warrants. In its statement, the Security Council demanded full cooperation from the Republic of Serbia and Serbia and Montenegro. In July 2008, as we then posted, Serbian authorities finally arrested Karadžić.

One can only hope that the ICC need not wait 12 years for Sudan's cooperation on the warrants for Harun and Ali-Kushayb.

On November 14

On this day in ...

... 1995, Richard Goldstone, then the Prosecutor of the International Criminal Tribunal for the former Yugoslavia, indicted 2 Bosnian Serb leaders on charges of genocide, crimes against humanity, and war crimes stemming from the massacre of Bosnian Muslim boys and men at Srebrenica. This indictment followed another, issued 3 months earlier, which had charged the same 2 men, Bosnian Serb President Radovan Karadžić and and Gen. Ratko Mladić, with international crimes related to other aspects of the war in Bosnia. As we posted here and here, it took 13 years for the capture of Karadžić; his trial began last month despite his boycott (left) of the proceedings, which readers may follow via webcast here. Mladić remains a fugitive.

(Prior November 14 posts are here and here.)

Guest Blogger: Janine Clark

It's IntLawGrrls' great pleasure today to welcome Dr. Janine Clark (left) as today's guest blogger.
A Lecturer in the Politics Department and the Post-War Reconstruction and Development Unit at the University of York in Britain, Janine previously was a Leverhulme Trust Early Career Fellow 2007-2009, and an Economic and Social Research Council Postdoctoral Fellow in the International Politics Department at Aberystwyth University, Wales, 2006-2007.
Janine received her doctorate in 2006 from the University of Nottingham; she also holds a master’s degree with distinction in international studies from the University of Leeds and a 1st class honours degree in law and French from the University of Bristol.
Her research interests include post-conflict societies, particularly in the Balkans and Africa; reconciliation and trust-building processes; war crimes and their perpetrators; transitional justice; war crimes tribunals and restorative justice mechanisms. Publications include her book Serbia in the Shadow of Milošević: The Legacy of Conflict in the Balkans (2008), as well as several law review articles on international criminal justice. In her guest post below, Janine discusses one of the latter, an empirical study on Bosnia and post-conflict justice, recently published in the Journal of International Criminal Justice.
Heartfelt welcome!

2¢ on interrogation review

See the last item at The New York Times' "Room for Debate" for my thoughts on the news that, as foreseen by IntLawGrrl Beth Van Schaack, Attorney General Eric H. Holder, Jr. (left) has instructed Assistant U.S. Attorney John Durham to conduct a "preliminary review" of post-9/11 interrogations by the CIA to see whether U.S. law was violated. Prompting the order was release of a 2004 CIA report.
International criminal law point of comparison:
The 1999 "internal analysis," by the Office of the Prosecution at the International Criminal Tribunal for the former Yugoslavia, into whether NATO's air strikes against Serbia violated laws of war.

Karadžić channels Piaf

In words that weirdly echo the signature song of the late chanteuse Édith Piaf (below), Radovan Karadžić (left) has told Reuters:

« Je ne regrette pas mon propre rôle ».

That's the French version of the article by Adam Tanner. In English, Karadžić said:

'I do not regret my own role.'

Karadžić spoke during an exclusive interview in The Hague cell where, as we've posted, he awaits trial. (photo credits here and here)
The 3d Amended Indictment, filed with the International Criminal Tribunal for the former Yugoslavia in February, alleges that Karadžić, former President of the breakaway Bosnian Serb region known as Republika Srpska, is responsible for genocide, crimes against humanity, and war crimes committed during the brutal Balkans wars of the 1990s.

On August 18

On this day in ...
... 1587, days after her family had arrived with other colonists at Roanoke Island on the mid-Atlantic coast (now North Carolina), Virginia Dare, the 1st child of English descent, was born in what is now the United States of America. The Roanoke Colony vanished, however, and Virginia along with it, under conditions unknown to this day. (credit for 1937 stamp commemorating Dare's birth)
... 1992, during an international inspection of 2 detention sites, the leader of the delegation, Dr. Bernard Kouchner, then France's Humanitarian Affairs Minister (today, its Foreign Minister), called the Serbian detention camps "'hell on earth.'" by the man leading a delegation to inspect them. The visit came a week after TV crews at the Trnopolje camp broadcast "[i]mages of severely emaciated internees behind barbed wire fences" that led "to comparisons with the horrors of Nazi concentration camps." Abuse at camps would be the subject of numerous cases at the International Criminal Tribunal for the former Yugoslavia, established the following year by the U.N. Security Council.

(Prior August 18 posts are here and here.)

ABA to honor Zimbabwean lawyers

This coming Saturday, August 1, at a luncheon meeting in Chicago, the Rule of Law Initiative of the American Bar Association will honor Zimbabwe Lawyers for Human Rights with its 2009 Rule of Law Award.
The Zimbabwean group -- a public interest litigation organization operating in one of Africa's most treacherous environment's for human rights defenders -- is being recognized for its efforts at advancing the rights of persons in the country. Its impressive portfolio includes:
► Representing indigent individuals who have been illegally denied citizenship;
► Providing emergency legal aid to detained human rights defenders;
► Training legal practitioners, teachers, and traditional leaders on human rights; and
► Preparing lawyers for a future transitional justice project.
In addition to honoring the courageous lawyers and advocates who protect human rights in Zimbabwe, the giving of this award also provides an opportunity to reflect upon the state of human rights in that country in recent years:
► In June 2008, the U.N. Security Council condemned Zimbabwe's intimidation of political opponents, which resulted in the deaths of opposition activities and displacement of thousands. Despite the creation of a coalition government between President Robert Mugabe's Zanu-PF and the Movement for a Democratic Change leader earlier this year, Zimbabweans continue to struggle against an oppressive Mugabe regime in their quest to realize their human rights.
► On June 18, 2009, four members of the nongovernmental organization Women of Zimbabwe Arise were detained by police for peacefully demonstrating in commemoration of World Refugee Day. The women were assaulted while in custody, and then denied medical treatment for their injuries.
► On July 13, 2009, Mugabe supporters disrupted a national conference to draft a new Constitution, which would include provisions to curtail executive power.
Established in 1994, the Rule of Law Award is granted to leaders and countries that take "significant steps towards implementing democratic and market reforms" on the domestic level. Past award recipients of the Rule of Law Award include Pakistan's lawyers and judges who protested that country's purging of its judiciary; U.S. Supreme Court Justices Stephen Breyer and Anthony M. Kennedy; and Nataša Kandić, Founder and President of the Humanitarian Law Center based in Belgrade, Serbia.
Heartfelt congratulations to the courageous members of Zimbabwe Lawyers for Human Rights and their peers!

On June 9

On this day in ...
... 1909 (100 years ago today), 4 women rode out of New York City in a Maxwell touring car. "Forty-one driving days, 11 tires and 3,800 miles later they arrived in San Francisco, where they were met by a large fanfare celebration." Along the way the adventurers -- the driver, 22-year-old wife and mother Alice Huyler Ramsey, became the 1st woman ever to drive from coast-to-coast -- dealt with bad roads and weather, flat tires and car breakdowns, native Americans hunting jackrabbits and a posse of more recent settlers hunting an accused murderer. Ramsey described the trip in her book Veil, Duster, and Tire Iron (1961); she became the 1st woman to be inducted into the Automotive Hall of Fame in 2000. (credit for photo of Ramsey changing a tire during the 1909 sojourn)
... 1999 (10 years ago today), Serbia and NATO reached an agreement on Serb military withdrawal from Kosovo. Troops from the North Atlantic Treaty Organization had begun an intervention in the region in March of the same year. Today Kosovo is a nation-state recognized by some countries -- among them the United States, Christopher Dell just having been nominated as the 2d U.S. ambassador to Kosovo -- but not, by any means, by Serbia.

(Prior June 9 posts are here and here.)