Guest Blogger: Elizabeth Ashamu

We're delighted to welcome Elizabeth Ashamu (right), who provides today's guest post below on her work seeking justice for victims of extraordinary rendition in the African human rights system.
A third-year law student at NYU School of Law, Elizabeth is a Root-Tilden-Kern and Institute for International Law and Justice scholar. Her academic and professional work has focused on human rights in Africa. She holds Bachelor's and Master's degrees in African Studies from Yale University.
Before law school, work on human rights, transitional justice and natural resource management took her to Togo, Rwanda, Liberia and Cameroon. As a law student, Elizabeth was a founding member and the first president of the NYU African Law Association. She has spent time in Southern Sudan researching post-conflict forest governance, and she interned with the Special Court for Sierra Leone at its Hague office. Her interest in strengthening democratic processes in Africa led her to serve as legal advisor with the Carter Center’s election observation mission for Guinea’s presidential elections and as an observer for the Southern Sudan referendum on self-determination.
Elizabeth looks forward to working with Human Rights Watch after her graduation, as its 2011-2012 NYU Fellow.
Heartfelt welcome!

Kimberley Process & Zimbabwe diamonds

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

The opening and expansion of global markets has created and exacerbated resource curses, the phenomenon in which natural resource abundance creates governance problems.
Yet international legal scholarship has been slow to recognize the relationship between freer trade and the financing of internal conflicts. My recent article, "Regulating Resource Curses: Institutional Design and Evolution of the Blood Diamond Regime," published earlier this year in the Cardozo Law Review, looks closely at a recent effort to address the global trade in so-called blood diamonds as a potential model for resource curses more generally.
I develop a case study of the Kimberley Process, an international diamond tracking regime (prior IntLawGrrls post), by investigating both the scope of the institution’s regulatory reach as well as the mechanisms by which members promulgate and enforce those regulations. The article focuses on the unique coalition of nongovernmental organizations, corporations, and states, and on the unusual international arrangement upon which they agreed.
Evidence from the evolution of that institution suggests that although designers may indeed seek to maximize their own interests, what determines whether an institution can regulate effectively, and when it may move beyond the designers’ original interests, are legalization elements of that international institution. These include:
► The obligations the regime creates;
► The precision with which those obligations are defined; and
► The possible delegation of interpretive and enforcement efforts.
In accumulating and assessing this evidence, my article contends that while skeptics may correctly identify the Kimberley Process’s initial alignment with state and corporate interests, this lightly legalized regime provides an opportunity for substantial progress on human rights. Although the Kimberley Process might appear as an attempt to whitewash state and corporate abuses, over time, the institution can -- even though it need not necessarily -- evolve to address both the rebel-induced and state-inflicted human rights violations related to the diamond trade.
The article acknowledges 2 factors:
► The importance and potential stickiness of initial design choices; and
► The fact that institutional evolution in favor of issue expansion and greater enforcement is merely feasible rather than inevitable.
Thus, this article demonstrates some of the possibilities and limitations of looking to the Kimberley Process as a model for resource curses, and more generally for other areas in which NGOs seek to align state, corporate, and human rights interests.
Developments which occurred after my article went to press suggest that the Kimberley Process has in fact tried to address state-initiated human rights abuses. In so doing, it is facing some substantial state resistance:
► In 2009, the Kimberley Process sanctioned Zimbabwe for bad behavior in the newly discovered Marange diamond fields. Rather than expel Zimbabwe, members suspended its exports. By November 2009, Zimbabwe agreed to a joint work plan to restore compliance by eliminating smuggling, allowing greater monitoring, and reducing military abuses against civilian miners. Despite these promises, Human Rights Watch reported that as late as September of 2010, soldiers still control large portions of these Zimbabwe fields and continue to violate the human rights of the local miners. (credit for 2006 photo by Tsvangiray Mukwazhi/Associated Press of women and men miners at Marange)
► A November 2010 Kimberley Process meeting failed to reach agreement on whether to lift all export limitations, and thus kept the suspension in place. Zimbabwe’s monitor responded by unilaterally certifying millions of diamonds which are already beginning to make their way to market.
►Many speculate that a December 2010 WikiLeaks posting will influence an ongoing Kimberley Process meeting on the Zimbabwe export question. The 2008 U.S. government cable states:

'In a country filled with corrupt schemes, the diamond business in Zimbawbe is one of the dirtiest.'

► Meanwhile, NGOs such as Global Witness and World Vision have stopped short of calling a boycott, but asked consumers and retailers to act more vigilantly in ensuring that diamonds purchased over the holiday season have not funded violence.
If Zimbabwe continues on its current path of non-compliance, or pulls out of the process entirely, many fear the diamond industry will return to the bad practices of the 1990s, in which widespread human rights abuses were common.
Others suggest, however, that targeted pressure campaigns could convince industry networks to reject working with those that trade in these blood diamonds and persuade individual consumers not to purchase them.
Only time will tell. But this article illuminates the institutional mechanisms that will facilitate success or failure on the Zimbabwe problem.

Law and Policy Collide: HIV/AIDS in China

On Tuesday, China took the first step towards meaningful enforcement of anti-discrimination laws designed to protect those living with HIV/AIDS when a court in the Anhui Provence accepted a case brought by an HIV positive man claiming he was illegally denied a job on the basis of his HIV status. (photo credit, left) The plaintiff, an unidentified man in his early 20s, claims that he passed a written test and interviews for a teaching job, but that he was ultimately rejected for the position after a physical exam revealed he was HIV positive. His suit is based on a March 2006 State Council regulation that prohibits institutional or individual discrimination based on HIV status. Since 2006, Yirenping, a civil rights advocacy group, has brought 15 similar lawsuits, all of which have been declined by the courts. Zheng Jineng, the attorney for the plaintiff in this case, says:

In the past on sensitive cases like this, the court would be very reluctant to accept the case. But this time they accepted it smoothly and quickly. That means the legal system in China is making progress.

Indeed this is a good sign. However, it is a small step against a ghastly background of persecution of people living with HIV/AIDS and activists in China. In July of this year, Joe Amon, Program Director for Health and Human Rights Division at Human Rights Watch, wrote:

On paper, the Chinese government has laws and policies that are protective of the rights of an estimated 700,000 people living with HIV in the country. In practice, these policies are frequently undermined by the actions of police and public security forces, who round up "undesirables" such as sex workers and drug users and intimidate and censor civil society organizations working to expand HIV outreach.

The Chinese court's decision to hear the case at hand comes after its participation in the 2010 International Aids Conference in Vienna, which explored the theme "Rights here, right now." There, Michel Kazatchkine, executive director of the Global Fund to Fight AIDS, Tuberculosis and Malaria, joined a number of international organizations and NGOs in calling for the closure of compulsory drug detention facilities. Drug users are detained in such facilities for up to six years and subjected to forced labor and other inhumane conditions. However, Kazatchinke decided that despite the clear human rights problem the detention facilities present, the Global Fund will continue to provide support to these facilities so that detainees will have access to condoms, clean injecting equipment, and antiretroviral treatment. (photo credit, left).
He was not kidding when he called this choice an "ethical dilemma." It will be difficult to make progress when rule of law efforts collide with internationally-funded and highly questionable HIV policy in China. While those in detention should not be denied care for lack of funding, serious international pressure is needed to close the detention camps. And while China appears to be making some progress in this area, going forward, efforts should be made to strengthen civil society groups that call China to enforce its anti-discrimination laws.

Go On! State Responsibility & Intimate Violence

(Go On! is an occasional item on symposia and other events of interest)
Our readers in the United Kingdom and environs might be interested in the following event, at London's Chatham House, on international law and intimate violence:
The Principles of State Responsibility and Systemic Intimate Violence, Wednesday, 22 September 2010, 17:00 to 18:30.
Featuring:
► Professor Bonita Meyersfeld, University of the Witwatersrand, South Africa, School of Law and Head of the law school's Gender, Centre for Applied Legal Studies, who will: argue that systemic intimate violence is an appropriate concern for international law; survey important recent legal developments at the UN, European, inter-American, and Pan-African levels; and discuss her new book on this subject, Domestic Violence and International Law (2010).
► Gauri van Gulik (left), Women's Rights Division, Human Rights Watch, who will respond from the perspective of a practitioner working on these issues.
To register, e-mail amartin@chathamhouse.org.uk, stating your name and professional affiliation. Members should include their membership number.

On the job! HRW researcher

(On the Job! pays occasional notice to interesting intlaw job notices)

The nongovernmental organization Human Rights Watch seeks immediate applications for a researcher to investigate and document human rights abuses experienced by immigrants, on the one hand, and by persons in the criminal justice system, on the other. This full-time Researcher on U.S. Immigration Policy/Criminal Justice also will explore the overlap between the the 2 systems. Duties further will encompass advocacy, communications with the media, and preparation of reports and op-eds.
Knowledge of international human rights law is desirable but not required. Other desired qualifications include:
► U.S. law degree or an advanced degree in U.S. immigration law/policy, criminal law/policy, journalism, or related field;
► At least 5 years' relevant professional experience; and
► Strong oral and written communications skills in English, and fluency or high proficiency in Spanish.
The position is part of the U.S. program of Human Rights Watch, headquartered in New York and Washington, D.C. See here for details on how to submit an immediate application.

On July 27

On this day in ...
... 1990 (20 years ago today), a Declaration of Sovereignty was adopted by the Supreme Soviet of Belarus, naming the Republic of Belarus (map below)

a sovereign state established on the basis of the realization by the Belarusian nation of its inalienable right to self-determination, state-language status of the Belarusian language, and the supremacy of the people in the determination of its destiny.

Thus did the Belarus (prior posts) break from the Soviet Union with which it had been affiliated since the end of World War II. This declaration was among many in 1990, "The Year of USSR Independence and Sovereignty Declarations," as Helsinki Watch, predecessor of Human Rights Watch, called it.

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

'Nuff said

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

'Zero prosecutions suggests zero effort to enforce the law.'

-- Martina E. Vandenberg (right), a litigation partner at Jenner & Block in Washington and onetime Human Rights Watch investigator of violence against women, commenting in a Washington Post story that yesterday described as a "paper tiger" an 8-year-old U.S. law making it a crime for government contractors and employees to engage in sex trafficking in war zones. The derisive label stems from allegations of just such behavior in places like Iraq and Afghanistan. In turn, this news casts a shadow on stepped-up criminalization of trafficking by state legislators, the subject of a report in today's Post.

The NGOs Speak...

Many human rights NGOs have not taken a position on the substantive negotiations surrounding the crime of aggression (detailed here) on the grounds that they remain neutral into the causes of conflicts and focus only on the consequences; in short, the jus ad bellum (the law governing the resort to force) is outside their mandates. These organizations have, however, made arguments focused on the jurisdictional regime that may eventually govern the crime. In particular, many groups have argued that a political filter, such as the General Assembly or the Security Council, over the crime of aggression will threaten the Court's independence. Instead, they argue in favor of no filter over the crime of aggression, as is the case with the core atrocity crimes, or an internal filter in the Pre-Trial Chamber.

Departing from this agnosticism, Human Rights Watch (HRW) has a new report out, entitled Making Kampala Count, that takes a strong position against including the crime of aggression in the ICC Statute at all. In addition to offering a number of important recommendations for the stocktaking component of the upcoming ICC Review Conference in Kampala, HRW argues that:

We fear that inclusion of a definition and jurisdictional filter could diminish the court’s role—and the perceptions of that role—as an impartial judicial arbiter of international criminal law. Taking up prosecutions of aggression could link the ICC to highly politicized disputes, such as border incursions, territorial disputes, and secession movements supported by external state actors. Inserting the court into these disputes may well give rise to perceptions of political bias and instrumentalization—even if such perceptions are wholly unfounded. This, in turn, could damage the interested public’s trust in the court’s legitimacy and ability to address genocide, war crimes, and crimes against humanity.

The court’s work and credibility could also be damaged in situations where it does not take up an aggression prosecution. ... [E]specially with a complex jurisdictional mechanism, the operation of the court’s jurisdiction over the crime would be harder for the interested public to comprehend, especially in the country situations most affected by the alleged crime. ... Thus, situations could arise in which affected communities would have intense expectations for justice, but the ICC would be unable to act due to jurisdictional or resource restrictions. This is already a problem for the court in pursuing the core crimes already operational under its jurisdiction.
When it comes to the crime of aggression, then, the dangers of inaction are much like those of action: disappointing expectations, leaving communities feeling abandoned and disinclined to trust the other work of the court.

Moreover, there is a further risk to the court should it decline for whatever reason to take up a particular allegation of aggression: opportunistic and unscrupulous political leaders, seeking to advance their own national agendas, could exploit national dissatisfaction and undercut the court’s credibility both domestically and internationally.

In addition, under the leadership of the Open Society Justice Initiative, over 40 international NGOs (many from Africa from which all the cases before the Court hail) have sent a letter to the Foreign Ministers of members of the Court expressing concerns about the codification of the crime of aggression in the Rome Statute on the ground that it risks politicizing and overburdening the Court and undermining the integrity of the Rome Statute. The letter states in part:

[A]ggression—a crime based on acts committed against a state—raises fundamentally political considerations about a state’s initial decision to resort to the use of force. The ICC’s other three crimes—war crimes, crimes against humanity and genocide—are violations against individuals for which legal remedies have long been available and clearly defined in international customary laws and treaties. ...

[A]sking the ICC to take on another category of crime at present risks overburdening the Court when it is still striving to prosecute and try those responsible for current crimes. Much work is needed to further improve the operation of the Rome Statute system in respect of cooperation, complementarity, the impact on victims and affected communities, and questions of peace and justice. ... Prudently declining to adopt an amendment on aggression at this time, when the Court has such urgent challenges to tackle, is the most effective way to strengthen an institution that is central to combating impunity, and ensuring accountability, for the most heinous international crimes. ...

Given the wide range of perspectives which currently exist on the aggression amendment, pushing it to a vote in Kampala risks undermining the cohesiveness of states parties that has been so essential to the Court’s establishment and
mission.

It remains to be seen whether these voices will be heard in Kampala. One new development does not bode well: It has just been announced that there will be limited seating available to NGOs during the first week of the Kampala Review Conference (when the stocktaking is scheduled to happen), raising the ire of among others the Coalition for the ICC, which is coordinating NGO efforts in Kampala.


The NGO and Peoples' Space events schedules are available here.

Disclosure: I have been advising the U.S. government on the aggression negotiations and will be the academic advisor on the U.S. delegation in Kampala.

Law moves in mysterious ways . . .

The disturbing trend of "pushing back" asylum seekers hit new lows last week when Australia announced that it would suspend asylum applications from Afghanis and Sri Lankans, claiming that both countries have stabilized sufficiently that even refugees can be returned. And on Tuesday, Arizona passed a bill that criminalizes the presence of those without lawful immigration status, risking racial profiling among other rights violations. It seems the fences are getting higher across the developed world, and human rights are pushed to the side as anti-immigrant politics take the fore.
Of course, these policies have raised the ire of immigrants' rights advocates, but we've also seen strong criticism, leveraging the language and power of international law, from unusual quarters. In Italy, where, as I blogged last week, asylum seekers arriving by boat are returned to Libya without even an interview, the Vatican issued a powerful critique of this practice. Paraphrasing without citing the UN Convention Against Torture, Archbishop Agostino Marchetto noted that

No one can be transferred, expelled or extradited towards a state where there is a serious risk that the person will be condemned to death, tortured or subjected to other forms of degrading or inhumane treatment,

and that conditions in some Libyan detention centers are inhumane and degrading.
In the case of Arizona, a more traditional but no less powerful vision of international law was offered up. The Mexican Embassy issued a strongly-worded statement condemning the bill criminalizing undocumented status, noting not only its potential for violating the civil rights of Mexican nationals, but also its potential to upset diplomatic relations between the United States and Mexico. Moreover, the Embassy's spokesperson reiterated the Mexican consulate's commitment to ensuring that the rights of its nationals are respected in the United States.
And in the case of Australia, while a legal response may be forthcoming from the Australian Human Rights Commission, the Tamil Referendum Council of Australia made perhaps the most creative use of international law in responding to the blanket denial of asylum to Sri Lankans. The Council relied on a letter from Human Rights Watch finding that Australia's actions violate the UN Refugee Convention and Protocol to argue that an independent Tamil homeland in northern Sri Lanka is the best way to prevent an influx of refugees and consequent violations of international obligations. In other words, if Australia doesn't want these refugees on its doorstep, it should help to resolve the root causes of flight in Sri Lanka.
Though self-serving to different degrees, the adoption of the language of international law in advocating for the rights of immigrants and refugees is also a reflection of the increasing power of human rights law and indicative of the new life that can be breathed into long-standing principles of foreign affairs and consular protection. And while lawsuits have and will be brought to remedy these rights violations, the use of international law by a variety of actors may start to shift the court of public opinion, which may be more important in enforcing the rights of immigrants.

Who said what on Gaza

Figuring out who said what about Palestine in recent days proved yet another mainstream media scavenger hunt.
► Reuters wrote Friday that "a report by U.N. High Commissioner for Human Rights Navi Pillay lambasted the 'nearly total impunity' for the violations," then proceeded to list "Pillay's recommendations" respecting the issue.
► Christian Science Monitor reporter Ilene R. Prusher led Thursday with a Human Rights Watch report on Gaza, the area depicted in cream coloring at right. She then anticipated that "what are expected to be two critical United Nations reports." (map credit) Prusher continued:

Israel has refused to cooperate in the investigation that is expected to yield the harsher of the two reports. That investigation is headed by Judge Richard Goldstone, a former war-crimes prosecutor from South Africa who was appointed by the UN Human Rights Council in Geneva. Israel has criticized the council, which has a rotating membership that currently includes countries such as Saudi Arabia, Kyrgyzstan, and Angola, as biased and thus unfit to accurately assess its actions.
Israel has provided assistance, however, to investigators working on a second report, being conducted by the UN Commission on Human Rights.

Although the 1st paragraph makes sense, the 2d does not: as posted, the "UN Commission on Human Rights" disbanded in 2006 to make way for the "UN Human Rights Council." One guesses the 2d paragraph was intended to refer to the inquiry on which Reuters reported a day later. Yet this too appears a bit askew.
That's because the website of the Office of the U.N. High Commissioner for Human Rights attributes the Friday report not directly to Commissioner Pillay, but rather to the Special Committee to Investigate Israeli Practices Affecting the Human Rights of the Palestinian People and Other Arabs of the Occupied Territories. The U.N. General Assembly renewed the mandate of this 41-year-old Special Committee just last December, via Resolution A/RES/63/95. Its 3 current members -- representing Malaysia, Senegal, and Sri Lanka -- conducted a 10-day field mission to Egypt, Jordan, and Syria at the beginning of this month, and then concluded:

'Violations of the international humanitarian law during the operation Cast Lead, in particular the targeting of civilian population and wanton destruction of property and religious and cultural objects.'

The Special Committee will present its findings -- based on field mission interviews and expert reports from nongovernmental and governmental organizations -- to the U.N. General Assembly later this year.
Have gone this far in the scavenger hunt, but still not entirely sure who said what.
Reportorial precision would go a long way toward aiding comprehension of the workings of international legal institutions.

Today's Guest Bloggers: Anne Gallagher and Elaine Pearson

It's IntLawGrrls' great pleasure to welcome as today's guest bloggers Dr. Anne Gallagher (left), Head of Operations for Equity International, a Geneva-based foundation that promotes ethical and lawful policing through technical and tactical training and other practical support to national police forces, and Elaine Pearson (below right), Deputy Director of the Asia Division of Human Rights Watch.
Anne is an international lawyer specialising in human rights and criminal justice. She served as a career U.N. official from 1992 to 2003; for the last 5 of those years she was Special Adviser on Human Trafficking to the High Commissioner for Human Rights. She continues to advise the United Nations on these matters and has, most recently, completed a legal commentary to the U.N. Principles and Guidelines on Human Rights and Human Trafficking.

In 2003 Anne was appointed to head an intergovernmental initiative, under the Australian Aid program, that aimed to develop more effective criminal justice responses to human trafficking within and between countries of South East Asia. The project works directly with ASEAN and its member states to promote criminal justice approaches that work to end impunity for traffickers and to secure justice for persons who have been trafficked.

Anne has taught as institutions iincluding the NATO Staff College, the European Institute for Human Rights, and universities in Australia, Finland, Switzerland and Thailand. Her publications focus on policing, human rights, women’s rights and human trafficking. Cambridge University Press will publish her book International Law of Human Trafficking later this year.

Like Anne, Elaine also has special expertise in issues related to human rights, human trafficking, and migration. She has published in periodicals including The Nation. As Deputy Director of Human Rights Watch's Asia Division, she supervises work across Asia, especially South East Asia, Nepal and North Korea. Elaine has lived and worked in Asia for 6 years, in cities including Bangkok, Hong Kong, and Kathmandu. Prior to joining Human Rights Watch in 2007, she worked as a consultant to various institutions, among them the International Labour Organization, the U.N. Development Fund for Women, and Oxfam. She led the first Trafficking Program at Anti-Slavery International in London, was advocacy officer for the Global Alliance Against Traffic in Women. She graduated in law from Murdoch University in Australia.

In their guest post below, Anne and Elaine discuss Detention of Trafficked Persons in Shelters: A Legal and Policy Analysis, their study, prepared under the auspices of ARTIP, the Asia Regional Trafficking in Persons Project, of the practice by which some countries hold victims of human trafficking in shelter custody.

Heartfelt welcome!

On the Job! HRW researcher on women in Africa

(On the Job! pays occasional notice to interesting intlaw job notices) Human Rights Watch is seeking applicants for a Researcher who, from a base office in Johannesburg, South Africa, will work with HRW's Women's Rights Division to improve awareness of and accountability for human rights violations against women in Africa. As detailed here, duties will include:
► conducting fact-finding missions;
► publicizing the findings of such missions by writing briefing papers, letters, press releases, op-eds, and submissions to international bodies;
► developing and implementing local, regional, and international strategies to change abusive laws, policies, and practices;
► presenting human rights concerns to government officials, inter-governmental agencies, and the media; and
► monitoring policy developments related to women's rights and liaising with human rights and women's organizations in the region.
Among the qualifications expected of applicants are:
► a postgraduate degree in international relations, journalism, law, or social sciences, plus knowledge about international human rights, women's rights, and African affairs;
► at least 5 years' postgraduate experience working on women's human rights in Africa at a national and/or regional level, plus experience living in the region;
► skills in field research and documentation, production of writings under tight deadlines, and oral advocacy before policymakers; and
► fluency in English and at least 1 other language used in Africa.
To apply, send an e-mail to hornea@hrw.org that contains the subject line "South Africa Researcher RefWRD-09-1007-C," and includes all of the following:
► letter of interest describing experience;
► resume;
► names of referees or letters of reference;
► salary requirements; and
► a brief, unedited writing sample.
If e-mailing is not possible, all these materials may be posted or faxed to: Human Rights Watch, Attn: Search Committee (South Africa Researcher RefWRD-09-1007-C), 2-12 Pentonville Road, London, N1 9HF, England; fax :+44 (0)207713 1800.
No informal inquiries are accepted, and only complete applications will be reviewed.
Deadline for applications is April 30, 2009.

Health Care Denied: Immigrant Women in Detention

Horror stories about detained immigrant womens' access to reproductive health care have been bubbling to the surface of late. I've been blogging about these rights violations since the birth of our blog (here, here, and here), and most recently discussed the mistreatment of Juana Villegas, a pregnant undocumented immigrant who, arrested for driving without a license, went into labor in jail. She was cuffed by her foot to the bed until the final stages of labor, prohibited from seeing her husband during childbirth, shackled six hours after giving birth, and sent back to jail two days later without her newborn child.
Last month, the Texas Observer ran an excellent piece of investigative journalism detailing the harrowing stories of women detained after crossing the border into the United States. Many of these women are raped during their journey -- by coyotes, border bandits, and even border patrol agents -- but if they are unlucky enough to be caught by U.S. Immigration and Customs Enforcement (ICE), they are not told of their rights or their access to abortion providers. In 2008, nearly 10% of women in ICE custody (approximately 1000 women) were pregnant; not one woman in ICE custody in FY 2008 and 2009 has yet had an abortion. The policy of the U.S. Bureau of Prisons, in contrast, is to provide abortion counseling to pregnant women and to arrange for an abortion for any woman who requests one (at Bureau expense if the pregnancy resulted from rape).

In a related story earlier this month, the Coalition of Latino Leaders set in motion "Operation Panty," to provide underwear to detained immigrant women in Georgia, who are issued with a uniform but no underwear. Those lucky enough to have the money are able to purchase only boxer shorts, which are particularly ineffective at certain times of the month; the unlucky wear the same underwear for days or weeks until they are deported.

This week, Human Rights Watch released a long report detailing similar stories of women denied access to medically indicated Pap smears, mammograms, and hormonal contraceptives to regulate menstruation; of nursing mothers denied breast pumps who developed mastitis; and of menstruating women so desperate for sanitary pads that one sat on a toilet for hours. HRW analyzes the myriad violations of international human rights treaties -- the right to health in the International Covenant on Social, Economic, and Cultural Rights, the right to access to healthcare in the Convention on the Elimination of All Forms of Discrimination Against Women, and the right to humanity and dignity found in the International Covenant on Civil and Political Rights. It shouldn't take a lawyer to point out that the denial of basic reproductive health care, particularly to survivors of sexual abuse, is a violation of fundamental human rights. Here's hoping that the new administration moves to address this pressing problem in an urgent fashion.

On February 3

On this day in ...

... 1989 (20 years ago today), in Paraguay, "a violent coup" overthrew the 34-year dictatorship of General Alfredo Stroessner. "Within weeks," Human Rights Watch stated in its country report for that year, "Paraguay was transformed from one of the more repressive countries in Latin America to a much more open society preparing busily for its first free and relatively fair elections in decades."

... 1967, in the nearly century-old Pentridge prison (right), convicted murderer Ronald Ryan was hanged at 8 a.m. "He is remembered as the last person to be judicially executed in Australia."

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)

On seeking shelter from the ICC

The fact established in Monday's post -- "'unsignature' affords Bashir no refuge" from prosecution by the International Criminal Court -- provokes an obvious question:
Where else might Sudan's President sing "Gimme Shelter"?
The answer, of course, is the Security Council of the United Nations. Set up 6 decades ago to promote states' collective advancement of international peace and security, often as not the Council has been immobilized by states' disagreement, thus permitting conflict and insecurity to continue.
For years Darfur (left) has proved an issue rife with disagreement. And as our colleague, Northwestern University Law Professor David Scheffer, notes in his recent Jurist op-ed, the request of ICC Prosecutor Luis Moreno-Ocampo for an arrest warrant against President Omar al-Bashir has by no means abated disagreement. The Security Council has divided into 2 camps, Scheffer writes:
► 1st, "those members willing to permit justice to run its course against President Bashir," and
► 2d, "those members seeking to derail Mr. Moreno-Ocampo's move ... for the ostensible purposes of advancing peace objectives in Darfur ...."
How might the Council take the case away from the ICC judges now mulling whether to grant the warrant application?
The proffered mechanism is this provision of the Rome Statute of the ICC:

Article 16
Deferral of investigation or prosecution
No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions.

But in the view of Scheffer -- who, as U.S. Ambassador at Large for War Crimes Issues led the U.S. delegation at the 1998 treaty-drafting conference in Rome -- Article 16 can't carry the weight that opponents of the Bashir prosecution want it to bear. Tracing the negotiating history, Scheffer explains that the provision was intended solely to permit a Security Council check on "premature" referrals by nation-states or the independent prosecutor -- and not on the prior decision of the Security Council itself to refer a matter to the ICC. He adds:

It would have astonished my colleagues and me in 1997 and 1998 to be told that Article 16, which was conceived as a compromise procedure to use at the infancy of a situation before the ICC, would be applied some day to short-circuit a Security Council referral lodged more than three years ago ... If that scenario had been presented to the negotiators more than a decade ago, Article 16 never would have been approved ....

Scheffer bolsters this conclusion with policy reasons against deferring the Darfur case. (Reasons also are set forth in this Article 16 Q&A posted by Human Rights Watch.) Before so doing, however, he includes a host of questions that he says would have been debated at Rome had states believed that Article 16 might operate in this manner.
Strikes me that such questions themselves point to a structural argument against construing Article 16 to allow a Security Council short-circuit.
Security Council referral is authorized as follows:

Article 13
Exercise of jurisdiction
The Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of this Statute if:
....
(b) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations; ....

Nothing in the structure of the Rome Statute connects Article 13(b) to Article 16. The 2 are disjunctive, separate. In between them are Article 14 and 15, which detail conditions for the state party referral and prosecution action, respectively. The absence of any provision detailing Security Council referral indicates that Article 16 pertains only to the methods discussed in Articles 14 and 15. By this reading, the Rome Statute contains no clawback of the 3d method, Security Council referral.
Time will tell how the Council itself chooses to read the Statute.

(credit for U.S. Agency for International Development photo of transit camp near Nyala, Darfur, for persons internally displaced by the conflict in that western region of Sudan)

Death in absentia at home; trial abroad awaits

Le Monde reports that former Chadian President Hissène Habré (dressed in white in the photo at left) was convicted of crimes against humanity and yesterday sentenced to death by a criminal court in N'Djamena, Chad's capital city. But the defendant was not present: he's been in exile in Senegal since 1991.
"Africa's Pinochet" is the nickname that Human Rights Watch gave Habré, whose government is said to have "carried out some 40,000 politically motivated murders and 200,000 cases of torture" from when he seized power in 1982 and when he was deposed in 1990. That NGO maintains a Case against Habré webpage replete with documents and other links.
The premier situs for that case has not been Chad, however. Senegal indicted him, but its courts initially rebuffed the prosecution. Then Belgium issued an international arrest warrant. Senegal thus sought to extradite Habré, but its courts against rebuffed the effort. Then, in 2006, the African Union "[m]andate[d] the Republic of Senegal to prosecute and ensure that Hissène Habré is tried, on behalf of Africa, by a competent Senegalese court with guarantees for fair trial." And now? According to Le Monde,

Senegal's Minister of Justice, Madické Niang, indicated in July, after the country's legislature modified its Constitution to permit such a proceeding, that Dakar was 'ready' for the trial of Habré.

(credit for 2000 photo)

Guest Blogger: Sarah Thomas

IntLawGrrls are pleased to welcome today guest blogger Sarah Thomas (pictured at right). Sarah posts above on the recent controversy that arose in the Extraordinary Chambers of the Courts of Cambodia (ECCC), aka the Khmer Rouge Tribunal, in one of the first efforts of a civil party to communicate in court. We've posted here about civil party participation at the ECCC, a development that appears promising but, as Sarah notes, is not without its potential pitfalls. We are lucky to have Sarah providing an on-the ground-perspective; as the David W. Leebron International Human Rights Fellow working at the Documentation Center of Cambodia's Victim Participation Project, she is uniquely well-positioned to analyze this development. Sarah is a 2007 graduate of Columbia Law School, where she was an Articles Editor for the Columbia Journal of Transnational Law and a recipient of the Parker School Certificate in Recognition of Achievement in International and Comparative Law as well as a Kent Scholar. Sarah's experience in the field of international criminal law includes internships at the Office of the Prosecutor for the International Criminal Tribunal for the Former Yugoslavia and the International Justice Program at Human Rights Watch. She received her Bachelor of Laws degree from the London School of Economics and has also lived in China and Japan. Heartfelt welcome!

Striking hearts & minds in Somalia

Check out "Off Target," a Los Angeles Times commentary arguing that when the United States aims missiles at al Qaeda targets in places like Somalia -- as it did on March 3, 2008 -- it strikes resentment in law-abiding civilians.
The authors are 2 Human Rights Watch staffers: Jennifer Daskal (far left), senior counterterrorism counsel, and Leslie Lefkow (near left), senior researcher on the Horn of Africa. Stressing that the airstrikes missed their targets and "hit civilians instead," and offering a snapshot view of the turmoil between Somalia and Ethiopia, they warn that U.S. measures are resulting in

[a]n unsurprising growth in anti-Western and anti-American sentiment among Somalis who never supported radical Islamist movements before. ... Credible reports indicate that Islamist recruitment of Somali youth is growing, a backlash that will complicate U.S. counter-terrorism goals long into the future.

In the few days since this commentary was published, there've been additional news reports of dire straits in Somalia: deaths of Somali émigrés fleeing the country in precarious vessels; "runaway inflation"; and the kidnapping of 2 U.N. aid workers. Rather than continued efforts at "[e]liminating a few alleged terrorists," Daskal and Lefkow recommend a comprehensive, longer-term approach to problems in Somalia, an approach marked by:
►"ending Ethiopia's blank check to commit abuses"
►"conditioning support for Somalia's transitional government on evidence that it is no longer attacking civilians"
►"supporting and independent commission of inquiry to document the abuse"
►"meeting the humanitarian needs of thousands of internally displaced people"

(photo credits here and here; map credit here)

U.N. rapporteurs no longer so special?

The Human Rights Council this week stoked the controversy that's surrounded it since its founding in 2006.
The Council supplanted the Human Rights Commission -- a six-decades-old body that critics contended had become too political and, more to the point, too beholden to the politics of countries not themselves known for compliance with international human rights norms. Yet on many fronts human rights reform has not accompanied this re-forming of the U.N.'s human rights apparatus.
Not only has the Council concentrated on Israel to the exclusion of other countries, but it, like its predecessor, has included many human rights transgressors. Indeed, transgressors' sway may have increased, given the decision of the United States not to seek a seat on the Council. (Some surmise the the United States refused to run after counting noses and realizing that, on account of its own post-9/11 behavior, it might not win were it in fact to campaign for a seat.)
Add now yesterday's news of what Le Monde calls "a new breach in the system of 'special rapporteurs' inherited from the former Commission." On Thursday, Le Monde wrote,

under the pressure of the African group, and with the support of the Islamic Conference, China, and Russia, the Council proclaimed -- 'by consensus' -- the nonrenewal of the mandate of the 'special rapporteur' on the Democratic Republic of Congo (formerly, Zaïre), a country where human rights violates continue to be massive.

Congo thus joined Cuba and Belarus as countries who've been freed of Special Rapporteur investigations in 2 years, and adds fuel to concerns that most such mandates soon will disappear. Julie Gromellon of the Fédération internationale des droits de l'homme (FIDH) decried the notion that notion that a "thematic rapporteur" would do the job of the country-based expert, while Juliette de Rivero of Human Rights Watch issued this warning:

The Human Rights Council put politics before people by deciding not to renew the expert mandate on the Congo. Downgrading the council's work in Congo despite the recent rapes and killings is inexplicable and could have tragic consequences.