State's new Country Reports

This year's edition of the Country Reports on Human Rights Practices, an annual publication of the U.S. Department of State, has just been released and is available online here.

Samantar accountability advances

(Delighted to welcome back IntLawGrrls alumna Pamela Merchant, who contributes this guest post)

I am pleased to update you on a recent development in Yousuf v. Samantar, a human rights case that five survivors of torture brought in 2004 against General Mohamed Ali Samantar, who was Minister of Defense in Somalia (left) during the brutal Siad Barre regime.

On February 15th, the U.S. District Judge Leonie M. Brinkema ruled that this former Somali offical is not immune from suit.

This ruling in the Eastern District of Virginia clears a legal hurdle that we have been contesting for years, including at the U.S. Supreme Court.

Last June, the Supreme Court held that General Samantar was not entitled to immunity under the Federal Sovereign Immunities Act, but left open the question of whether he is entitled immunity under the common law. (Prior IntLawGrrls posts available here.) Last month's district court ruling settled that question by deferring to a statement from the State Department which unequivocally declared that General Samantar is not entitled to any immunity from suit.

The intervention in the Samantar case by the State Department is particularly significant because the United States only occasionally intervenes in litigation, and very rarely intervenes to claim that a defendant is not entitled to immunity.

The ruling ensures that our march towards accountability will continue. To learn more about the case, filed by the San Francisco-based Center for Justice & Accountability, for which I serve as Executive Director, and pro bono co-counsel Akin Gump Strauss Hauer & Feld LLP, please click here.

One very big bird ...

... has taken to Twitter: the top U.S. Department of State spokesperson, on the lookout for better, and quicker, public diplomacy.

Full story here.

P.J. Crowley's State Department Twitter feed is here.

Think we can get him to follow IntLawGrrls' tweets?

On December 31

On this day in ...
... 1980 (30 years ago today), Radio Tehran threatened that 52 American hostages could face execution. As posted (and see here), the hostages had been seized during the takeover of the U.S. embassy on November 4, 1979. (credit for 2004 photo of defaced U.S. seal at the former embassy building) Earlier that same year, revolutionaries had ousted Mohammed Reza Pahlavi, who'd been the Shah of Iran since 1941. On this same day 3 years earlier, in 1977, President Jimmy Carter had given a New Year's toast in Tehran, "reiterating American support" for the shah, "and calling him 'an island of stability' in the troubled region." The hostages would be released the following month, minutes after Ronald Reagan was sworn in as Carter's successor.

(Prior December 31 posts are here, here, and here.)

'Nuff Said

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

Women are off the U.S. diplomatic map. A look at 200 WikiLeaks cables finds no mention of our rights or struggles, says Corinna Barnard, and a recent check of the ... Council on Women and Girls site found a top story about romping reindeer.

-- Women's eNews, in an article citing correspondent Barnard (right) (credit for photo by Michael Priest). Barnard looked at 200 cables dispatched from 40 different countries, working "with a list of stories that Women's eNews had produced about women's rights in Afghanistan, Iraq, Iran, Saudi Arabia and other hot spots to determine whether U.S. diplomats were addressing these issues in any way." She found "nothing about poverty and women, reproductive rights, etc."

Child marriage, abroad & at home

Pending in the U.S. House of Representatives is a bill to combat child marriage around world.
The International Protecting Girls by Preventing Child Marriage Act of 2010 (S. 987) unanimously passed the Senate 11 days ago. The bill finds, inter alia:

Child marriage, also known as 'forced marriage' or 'early marriage', is a harmful traditional practice that deprives girls of their dignity and human rights.

and:

Child marriage as a traditional practice, as well as through coercion or force, is a violation of article 16 of the Universal Declaration of Human Rights, which states, 'Marriage shall be entered into only with the free and full consent of intending spouses'.

Citing the frequency with which under-18 girls (girls in particular, though elsewhere the bill mentions boys, too) marry, in countries like "Niger, Chad, Mali, Bangladesh, Guinea, the Central African Republic, Mozambique, Burkina Faso, and Nepal," the bill would:
► Authorize the U.S. President to work with "multilateral, nongovernmental, and faith-based organizations" to develop a child-marriage-prevention strategy that includes "education, health, income generation, changing social norms, human rights, and democracy building"; and
► Require that information about the nature and prevalence of child marriage be included in the annual Country Reports published by the U.S. Department of State.
No word on when such legislation might be taken up in the House.
Movement in that direction received a notable boost last week, in a Washington Post op-ed published jointly by Mary Robinson (right), formerly the President of Ireland and the U.N. High Commissioner for Human Rights, and Desmond Tutu, Archbishop Emeritus of Cape Town, South Africa, and winner of the 1984 Nobel Peace Prize. Members of The Elders group established by former the South African President and Nobel Peace Prizewinner, the 2 wrote:

As members of an independent group of leaders who were asked by Nelson Mandela to use our influence to address major causes of human suffering, we have never been involved in supporting a specific piece of legislation before, but we believe that investing in efforts to prevent child marriage is critical to global development and the achievement of the U.N. Millennium Development Goals. We applaud the Senate for passing this forward-looking legislation and urge the House of Representatives to follow suit.

Against the backdrop of these recent legislative efforts, an item discovered in the Library of Congress archives jumped out.
A captivating account of early 20th C. "women's editions" published by the mainstream U.S. press included the Louisville Courier-Journal clipping at left, entitled "Black List of States". Listed was the legal limit "at which fathers, brothers, and husbands have placed the age at which a little girl may consent to her ruin" -- that is, the age at which she could become a child bride in the United States.
In all but 3 states (Colorado, Kansas, and Wyoming), the age was under 18.
The youngest age of legal consent?
7 years, in Delaware.
The date?
1895, just 53 years before adoption of the Universal Declaration to which the pending legislation refers.

Information Security & Fear-Mongering about WikiLeaks

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

The response of the White House's Office of Management and Budget to the latest WikiLeaks document dump gives us a peek both into the sometimes surreal standards for dealing with information that the executive branch deems to be classified, and at the fear-mongering some government officials are engaging in.
According to CNN, on December 3rd, OMB instructed executive branch agencies to notify all government employees and contractors that they should not view any documents that are marked as classified using their work computers that access the web via non-classified government systems.
OMB distinguished “documents that are marked classified” from “news reports . . . that . . . discuss the classified material.” Employees can use non-classified government systems to access news reports that include classified information, but must not use those systems to access the classified documents themselves. This distinction might seem silly to an outsider, but the government imposes special security measures for its computers that store classified documents, and takes pains to ensure that its computers without these security measures do not have any classified documents. This system of segregating classified documents is complicated and costly. But so far, so good.
OMB also suggested (somewhat ambiguously) that federal employees and contractors without the proper clearances and the "need to know" the information should not access Wikileaks' classified information. Specifically, OMB stated:

'Federal employees and contractors shall not access classified material unless a favorable determination of the person's eligibility for access has been made by an agency head or the agency head's designee, the person has signed and approved [a] non-disclosure agreement, [and] the person has a need to know the information . . . .'

(Here and in quotes below, italics added.)
At least one agency has gone further, asserting that government employees -- and prospective employees -- should not access WikiLeaks classified documents even from their home computers.
According to Democracy Now, the State Department instructed employees of the U.S. Agency for International Development as follows:

'Accessing the Wikileaks web site from any computer may be viewed as a violation of the SF-312 agreement.'

According to the SF 312 (a non-disclosure agreement), violation can result in termination of a security clearance and employment.
The State Department memo also warned USAID employees:

'Any discussions concerning the legitimacy of any documents or whether or not they are classified must be conducted within controlled access areas (overseas) or within restricted areas (USAID/Washington)... The documents should not be viewed, downloaded, or stored on your USAID unclassified network computer or home computer; they should not be printed or retransmitted in any fashion.'

In other words, just accessing the WikiLeaks website from a home computer could result in the loss of a security clearance and job.
Steven Aftergood, Director of the Federation of American Scientists Project on Government Secrecy -- a transparency activist who has been critical of WikiLeaks -- characterized the State Department memo as "insane."
It is not at all clear how accessing the WikiLeaks documents on a personal home computer would constitute a violation of an agreement not to disclose classified information. On the other hand, the SF 312 asserts that

'unauthorized retention . . . of classified information by me could cause damage or irreparable injury to the United States or could be used to advantage by a foreign nation.'

This does not appear to be a one-off mistake by an overzealous State Department official. At least one government contractor has similarly warned its employees:

'Reviewing information on WikiLeaks or subsequent disclosures is strictly prohibited. ... [P]ersonnel are prohibited from accessing WikiLeaks whether on company-issued or on personal equipment.'

The fear-mongering applies not just to contractors but also to prospective government employees.
Democracy Now reported that the Office of Career Services at Columbia University's School of International and Public Affairs told its students that an alumnus working at the State Department

'recommends that you DO NOT post links to these documents nor make comments on social media sites such as Facebook or through Twitter. Engaging in these activities would call into question your ability to deal with confidential information, which is part of most positions with the federal government.'

Maura Kelly, Assistant Dean for Career Development and Public Service at Boston University Law School, sent a message to BU students and alumni that

'[t]he documents released by Wikileaks remain classified; thus, reading them, passing them on, commenting on them may be seen as a violation of Executive Order 13526, Classified National Security Information. See Section 5.5 (Sanctions).'

She specifically warned:

'DO NOT post links to the documents or make comments on any social media sites.'

Are these just over-reactions by people who are not familiar with the government's information security standards?
Or do these warnings reflect a concerted effort to prevent Americans from accessing and discussing the WikiLeaks documents that are now available on the web?
I hope that someone in government will provide some clarification -- and some sanity -- on this issue soon.

Wald on WikiLeaks

(Honored to welcome back alumna Patricia M. Wald, former federal and international judge, and former member of Presidential commission on U.S. intelligence, who contributes her thoughts on the unauthorized WikiLeaks release of U.S. diplomatic cables and military documents, some of which have been published in The New York Times, the Guardian, Le Monde, El Pais, and other media)

I think that freelancers do have some duty not to do things that will inevitably result in making any rational course of foreign relations more difficult.
Though it may be difficult to draw a precise line, I do see a difference between publishing the Pentagon Papers (after the fact), which disclosed the perfidy of the Vietnam War, and just dumping all sorts of personal calumny about foreign leaders – though part of these “dumps” may well have been motivated, like the Pentagon Papers, to show the futility of our sojourn in Afghanistan. (It seems almost impossible that the dumps aren’t violative of all sorts of laws.)
The episode also illustrates how our courtship with technology can be ruinous, by making it so easy to gain access to and disseminate so much classified material through young and immature intelligence operators.

On November 30

On this day in ...
... 1898, Dr. Marjorie M. Whiteman was born in Liberty Township in southern Ohio. After graduating from Ohio Wesleyan University, she earned her LL.B. and J.S.D. degrees from Yale. Her lifelong "distinguished career at the Department of State" included advising Eleanor Roosevelt from 1945 to 1951, when the former 1st Lady was the U.S. Representative to the U.N. General Assembly and chair of the U.N. Commission on Human Rights. (credit for photo of Whiteman, 2d from right, along with 3 Commission members; from left, Charles Malik of Lebanon, René Cassin of France, and Roosevelt) Whiteman also served as advisor to 10 different Secretaries of State. According to this website,

Whiteman's greatest contribution to international law was the completion of a Digest of International Law in 1969. This fifteen-volume work continues to serve as a leading resource on international law for government officials and scholars.

In 1985, she became the 2d woman to receive the Manley O. Hudson Medal, awarded by the American Society of International Law for scholarship and achievement in international law. Whiteman died at her Liberty Township home a year later.

(Prior November 30 posts are here, here, and here.)

Building Barricades to Protection

This week, Israel began building a $372 million, 155-mile barrier, including electric fencing and surveillance technology, along its border with Egypt.
As other routes for African migrants (such as the sea route between Libya and Italy) have been blocked, the numbers of migrants crossing the border from Egypt has increased dramatically. In 2009, Israel reported just over 4,000 undocumented migrants; that number is up to over 10,000 so far this calendar year. While the Israeli government claims that the wall will prevent Islamic militants and human traffickers from reaching Israel, it will also significantly impair the ability of asylum seekers to reach Israel.
One might expect a nation of refugees for whom the UN Refugee Convention was created to have a generous policy towards those seeking protection within its borders. This new barrier, however, presents just one more instance of Israel's failures to live up to its responsibilities under the UN Refugee Convention.
Israel hosted just over 4,000 asylum seekers in 2009, most from Eritrea and Sudan, yet Israeli NGOs report that the country has granted asylum to fewer than 200 applicants since it ratified the UN Refugee Convention in 1954. As described further in this report by the Israeli NGO Refugees' Rights Forum, the asylum process in Israel is dysfunctional, often requiring a wait of over a year for an interview. Rather than legally recognizing refugees from Eritrea and Sudan -- nations to which the UNHCR forbids deportation because of the dangers facing those who return -- Israel instead grants most of them temporary protection, a much less stable status that does not permit them to work and allows the Israeli government to return them when the situation the refugees' home country improves.
Those who are less lucky are detained (currently, over 2000 asylum seekers) or worse. Under Israel's "Hot Return" policy, authorities expel undocumented migrants directly to Egypt without providing access to asylum procedures and without obtaining guarantees against refoulement from the Egyptian government. The U.S. State Department reports that Egyptian authorities detain some of these asylum seekers, holding them in conditions that violate international human rights standards, and refoules thousands of others back to Eritrea and Sudan.
Though Israel must take seriously threats to its national security, this nation of refugees does itself a disservice by building further barricades to protection for those fleeing persecution.

'Nuff said

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

Diplomacy has long been the backbone of U.S. foreign policy. It remains so today. The vast majority of my work at the State Department consists of engaging in diplomacy to address major global and regional challenges, such as confronting Iran's nuclear ambitions, facilitating negotatiations between the Israelis and the Palestinians, enhancing stability on the Korean Peninsula, and working with other governments to bring emergency relief to Haiti, And President Barack Obama and I certainly relied on old-fashioned diplomatic elbow grease to hammer out a last-minute accord at the Copenhagen conference on climate change last December.

-- U.S. Secretary of State Hillary Clinton, in "Leading Through Civilian Power: Redefining American Diplomacy and Development." (credit for October 2010 photo) Clinton develops her wide-ranging exposition of the global work at State and myriad other agencies around the theme of her own initiative, "the first Quadrennial Diplomacy and Development Review (QDDR), a wholesale review of the State Department and USAID." The article appears in the November/December 2010 Foreign Affairs, a "special issue" on the topic of "The World Ahead." Some of the other articles are of interest, but the lineup as a whole discomfits: if it weren't for Secretaries of State (Clinton and her predecessor, Madeleine Albright), there'd be virtually no women authors in the entire issue. We, too, think deeply about the world to come.

The U.S. Says It Is Not Its Goal to Undermine the ICC

At a recent panel discussion at the NYU Center for Global Affairs on the Challenges and Future of International Justice, Harold Hongju Koh, Legal Advisor to the Department of State (left) (photo credit) stated that it was not the policy of the United States to frustrate the object and purpose of the Rome Treaty.

Koh's statement came in response to a comment by Sang-Hyun Song, President of the ICC (below right), about the United States' "positive engagement" with the Court. In invoking President Barack Obama's national security strategy promoting the end of impunity and the promotion of justice as moral imperatives and stabilizing influences in international affairs, Koh stated:

What you quite explicitly do not see from this Administration is U.S. hostility towards the Court. You do not see what international lawyers might call a concerted effort to frustrate the “object and purpose” of the Rome Statute. That is explicitly not the policy of this Administration. Because although the United States is not a party to the Rome Statute, we share with the States Parties a deep and abiding interest in seeing the Court successfully complete the important prosecutions it has already begun.

In addition to explicitly renouncing any such policy to frustrate the object and purpose of the ICC Statute, Koh noted that the Obama Administration had "ended the hostility and the harsh rhetoric" vis-a-vis the Court and pledged support for the Court's ongoing prosecutions.

These comments raise the question of whether Koh has said the magic words necessary to essentially withdraw a 2002 letter by which a U.S. official purported to "unsign" the Rome Treaty. Although the impact of the United States' purported "unsigning" of the Rome Treaty establishing the ICC remains contested, there is little question that Koh's remarks address the most important implication that some have read into the Bolton letter: that it was the policy of the U.S. to engage in a concerted effort to frustrate the "object and purpose" of the Court.

By way of background, President William J. Clinton in the waning days of his Administration signed the Rome Treaty on December 31, 2000, the final day it was open for signature. At that time, President Clinton did not recommend that his successor submit the Treaty to the Senate for advice and consent until the United States’ fundamental concerns were addressed, most notably the ability of the Court via an unaccountable prosecutor to exercise jurisdiction over the nationals of non-states parties. The subsequent retraction of this signature purportedly was accomplished by a terse letter from John Bolton, when he was President George W. Bush’s Undersecretary for Arms Control and International Security, to Kofi Annan, then-Secretary-General of the United Nations. The letter stated:

This is to inform you, in connection with the Rome Statute of the International Criminal Court adopted on July 17, 1998, that the United States does not intend to become a party to the treaty. Accordingly, the United States has no legal obligations arising from its signature on December 31, 2000. The United States requests that its intention not to become a party, as expressed in this letter, be reflected in the repositary's status lists relating to this treaty.

This indication of an intent not to ratify the treaty was said to be needed to remove any obligation of the United States to refrain from acting contrary to the object and purpose of the treaty as required by its signature of the treaty. Article 18 of the Vienna Convention on the Law of Treaties states:

A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when: (a) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty...

(Although the United States has signed but not ratified the Vienna Convention, U.S. officials regularly indicate that they accept that much of the Convention reflects binding customary international law). Pierre Prosper, then U.S. Ambassador for War Crimes Issues, later indicated that the United States would not be in a position to assist the Court's investigations. See here and here for our prior discussions of efforts to "unsign" treaties, a common but inapt metaphor given the actual content of the Bolton letter and the terms of the Vienna Convention. (Incidentally, the U.N. website still lists the United States as a signatory to the Rome Treaty with a footnote reproducing the text of the Bolton letter.)

By formally indicating an intent not to ratify the Rome Treaty, the U.S. was thus free to take measures that might be interpreted as "acts which would defeat the object and purpose of the treaty" by undermining the treaty regime—such as the passage of the American Servicemembers Protection Act or the pursuit of Article 98 immunity agreements with other states—without running afoul of its Article 18 obligations. Although the U.S. has now renounced any intention or policy to undermine the Court, it is no doubt premature to assume the United States intends to ratify the treaty, and, of course, the statement does not imply that it will.

In addition, Koh's statement at NYU made other key points. Specifically, Koh:

► Outlined the Obama’s administration’s “integrated approach” to international criminal justice, which involves

• support for the ad hoc tribunals,


• providing "steadfast assistance" to rule of law initiatives around the world,


• engaging the Assembly of States Parties, and


• cooperating with the ICC in ways that are consistent with U.S. law (notably the American Servicemembers Protection Act), such as by public diplomacy.

► Restated the United States' support for all of the Court's prosecutions that are currently under way.
► Raised lingering and pressing concerns about the aggression amendments to the ICC and particularly the interaction between Article 121(5), which applies to the aggression amendments, and the opt-out provision adopted in Kampala, which allows states parties to opt out of the aggression amendments (See here and here for our prior posts on this).
► Highlighted several additional challenges facing the system of international justice:

• wrapping up the work of the ad hoc tribunals,


• the need for the ICC to deal with a growing case load, and


• arresting fugitives from all criminal tribunals.

For more on U.S. cooperation with the ICC, see prior posts here and here. The full text of Koh's statement at NYU is available here.

'Nuff said

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

'How come you've got so many women?'

-- Unnamed Russian generals this past spring, quoted in a Washington Post article entitled In nuclear negotiations, more women at the table for U.S. Prompting the reaction, according to the Post's by Mary Beth Sheridan, was the "array of American women" at a disarmament negotiating table: chief negotiator Rose Gottemoeller (right), Assistant Secretary of State, Bureau of Verification, Compliance, and Implementation; Gottemoeller's Deputy Assistant Secretary of State, Marcie Berman Ries; and 2 scientists. Several other women are cited as shapers of U.S. policy, including: Ellen O. Tauscher, Under Secretary of State for Arms Control and International Security; Michèle A. Flournoy, Under Secretary of Defense for Policy, and, of course, Secretary of State Hillary Clinton. On concluding the list, however, Sheridan discussed this caveat:

Despite their advances, American women are still nowhere near equality in terms of their share of senior national security jobs.

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.'

United States' Periodic Review

The United States is on deck for a turn in the Universal Periodic Review rotation.
Universal Periodic Review, of course, is the process by which the Human Rights Council monitors compliance with international human rights obligations. Each of the United Nations' 192 members states is up for review every 4 years.
At a session in Switzerland, lasting tomorrow from 9 a.m. to 12 noon Geneva time (4 to 7 a.m. Eastern), the Council will consider the record of the United States for the 1st time ever.
(You can watch the proceedings via live webcast here. The United States' report on its activities, plus reports from nongovernmental organizations -- some of which IntLawGrrl Jaya Ramji-Nogales examined a while back -- may be found here.)
Leading the U.S. delegation will be Dr. Esther Brimmer (left), Assistant Secretary of State for International Organization Affairs; Harold Hongju Koh, the State Department's Legal Adviser; and Michael Posner, Assistant Secretary of State for Democracy, Human Rights, and Labor.

A story in the Washington Post situates the scheduled appearance within the Obama Administration's policy of "positive engagement"; indeed, it labels the session a "milestone." The policy also plays out, as we've posted, in other fora, such as the International Criminal Court. In a new ASIL Insight, meanwhile, our colleagues Christina M. Cerna and David P. Stewart expressed concern that the proceedings might be "heavily politicized." And they reserved judgment on whether this innovation

can produce an objective, informed, and productive assessment of a given state’s human rights situation. More importantly, only substantial time will tell whether the Universal Periodic Review process as a whole can in fact contribute to an improvement in the overall human rights situation in countries in the world, including ours. That is its main purpose and that is the standard by which it should be judged.

The United States is 9th in the lineup of 16 countries to be reviewed in this Council session, which began Monday and will run through November 12. Also under review: Liberia, Malawi, Mongolia, Panama, Maldives, Andorra, Bulgaria, Honduras, Marshall Islands, Croatia, Jamaica, Libya, Micronesia, Lebanon, and Mauritania. Those sessions also are available online here.

(h/t California-Davis 2L Joanna Cuevas Ingram)

On November 1

On this day in ...

... 1887, U.S. Secretary of State Thomas F. Bayard (left) wrote a letter to the U.S. Ambassador to Mexico, regarding the case of one A.K. Cutting, an American who had been jailed in Mexico on charges that he had libelled a Mexican citizen in a paper published in Texas. (The letter's reprinted in full on pp. 751-57 here.) Bayard argued that U.S. citizens could not

be held under the rules of international law to answer in Mexico for an offense committed in the United States, simply because the object of that offense happens to be a citizen of Mexico.

Contending that "the penal laws of a country have no extraterritorial force," Bayard demanded indemnity for the jailed citizen and repeal of the Mexican law that had permitted his arrest. Mexico's contrary position in this Cutting Case (a controversy that gave rise to concerns that the United States might invade Mexico) amounted to an assertion of what is now known as the passive personality principle of extraterritorial jurisdiction.

(Prior November 1 posts are here, here, and here.)

Apology / disculpa

The apology given for U.S. tests done six decades ago on unknowing Guatemalans was profuse.
Among the words in the bilingual, joint statement of apology, reprinted in full below, that Secretary of State Hillary Clinton (below left) (credit) and Health and Human Services Secretary Kathleen Sebelius (bottom left) (credit) issued on Friday:
► unethical / antiético
► outraged / indignados
► reprehensible / reprochable
► regret /disculpas
► abhorrent / abominables
► sad / triste
► appalling / atroz
None overstates the significance of a recent finding by Susan M. Reverby (right), the the Marion Butler McLean Professor in the History of Ideas and Professor of Women's and Gender Studies at Wellesley College. Reverby unearthed what a research team, funded by a grant from the United States' National Institutes of Health, did from 1946 to 1948. As stated by Dr. Francis S. Collins, current director of NIH, a D.C. briefing Friday, the team

intentionally infected vulnerable populations, including prisoners and mentally ill patients, with sexually transmitted diseases, including syphilis, gonorrhea, and chancroid. The purpose of the study was to test the effectiveness of penicillin, which was relatively new at the time.

Notwithstanding that "the intention was to provide treatment, and the evidence supports that the vast majority were adequately treated," Collins identified 4 "primary ethical violations":

► Experimentation on vulnerable populations;

► Apparent absence of informed consent;

► Deception respecting what what the team was doing to the subjects; and

► Intentional infection of potentially harmful pathogens.

A federal investigation is under way.

One hopes that investigators ask a question reporters at the briefing did not:

What does it mean that these tests took place at the same time that Americans were prosecuting Germans for medical experimentation -- in the same year, 1947, that a physician advising American war crimes prosecutors drafted what would come to be known as the Nuremberg Code, the keystone of current safeguards for human subjects?

While awaiting answer, ponder the Clinton-Sebelius apology:

The sexually transmitted disease inoculation study conducted from 1946-1948 in Guatemala was clearly unethical. Although these events occurred more than 64 years ago, we are outraged that such reprehensible research could have occurred under the guise of public health. We deeply regret that it happened, and we apologize to all the individuals who were affected by such abhorrent research practices. The conduct exhibited during the study does not represent the values of the United States, or our commitment to human dignity and great respect for the people of Guatemala. The study is a sad reminder that adequate human subject safeguards did not exist a half-century ago.
Today, the regulations that govern U.S.-funded human medical research prohibit these kinds of appalling violations. The United States is unwavering in our commitment to ensure that all human medical studies conducted today meet exacting U.S. and international legal and ethical standards. In the spirit of this commitment to ethical research, we are launching a thorough investigation into the specifics of this case from 1946. In addition, through the Presidential Commission for the Study of Bioethical Issues we are also convening a body of international experts to review and report on the most effective methods to ensure that all human medical research conducted around the globe today meets rigorous ethical standards.
The people of Guatemala are our close friends and neighbors in the Americas. Our countries partner together on a range of issues, and our people are bound together by shared values, commerce, and by the many Guatemalan Americans who enrich our country. As we move forward to better understand this appalling event, we reaffirm the importance of our relationship with Guatemala, and our respect for the Guatemalan people, as well as our commitment to the highest standards of ethics in medical research.

Declaraciones de la secretaria de Estado Hillary Rodham Clinton y la secretaria de Salud y Servicios Sociales Kathleen Sebelius sobre el Estudio de inoculación de enfermedades de transmisión sexual del Servicio de Salud Pública de Estados Unidos de 1946 a 1948:

El estudio de inoculación de enfermedades de transmisión sexual que se llevó a cabo de 1946 a 1948 en Guatemala claramente fue antiético. Aunque estos sucesos ocurrieron hace más de 64 años, estamos indignados de que tal investigación reprochable haya ocurrido bajo el pretexto de la salud pública. Lamentamos profundamente que esto haya sucedido y ofrecemos nuestras disculpas a todas las personas que resultaron afectadas por esas abominables prácticas de investigación. La conducta demostrada durante el estudio no representa los valores de Estados Unidos ni nuestro compromiso con la dignidad humana y el gran respeto hacia el pueblo de Guatemala. El estudio es un triste recordatorio de que las garantías adecuadas para la investigación en seres humanos no existían hace medio siglo.
En la actualidad, los reglamentos que gobiernan la investigación médica en seres humanos financiada por Estados Unidos prohíben este tipo de violaciones atroces. Estados Unidos es inquebrantable en su compromiso de garantizar que todos los estudios médicos en seres humanos que se realizan en la actualidad, cumplan con las rigurosas normas legales y éticas de Estados Unidos e internacionales. Bajo el espíritu de este compromiso con la ética investigativa, estamos iniciando una minuciosa investigación con respecto a los detalles de este caso de 1946. Además, mediante la Comisión Presidencial para el Estudio de Asuntos de Bioética, convocaremos también a un cuerpo de especialistas internacionales para que revise e informe sobre los métodos más eficaces para asegurar que toda investigación médica en seres humanos que se realice en el mundo en la actualidad cumpla con rigurosas normas éticas.
El pueblo de Guatemala es uno de nuestros amigos cercanos y vecinos en las Américas. Nuestros países son socios en una variedad de asuntos y nuestros pueblos están vinculados por valores compartidos, comercio y por los muchos stadounidenses de origen guatemalteco que enriquecen nuestro país. A medida que avanzamos para comprender mejor este atroz suceso, reiteramos la importancia de nuestra relación con Guatemala y nuestro respeto por el pueblo guatemalteco, así como nuestro compromiso con las normas éticas más exigentes en la investigación médica.

2 women judges sworn in at ICJ

At 10 Central European Time this morning, Joan E. Donoghue of the United States and Dr. Xue Hanqin of China were sworn in as the newest Judges on the 15-member International Court of Justice (right) at The Hague, Netherlands.
Judges old and new then began a planned week of public hearings in the Case Concerning Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation). Pending since 2008, the dispute arose out of events that year in 2 provinces of the Republic of Georgia, South Ossetia and Abkhazia. (Prior IntLawGrrls posts available here.)
Today is the 1st in history that the 65-year-old ICJ bench was not composed of 14 or more men.
As posted, the only other women ever to have served was Rosalyn Higgins (left) of Great Britain, an ICJ Judge from 1995 to 2009 and ICJ President the last 3 years of that tenure.
Xue had been elected on June 29 by the U.N. Security Council and U.N. General Assembly; those bodies elected Donoghue just this past week, on September 9.
Each woman is filling out the term of a retiring judge, and each is eligible thereafter to run for election to a full term.
Both the newest members have devoted their careers to diplomacy.
Xue (left), who will celebrate her 55th birthday this Wednesday, was born in Shanghai. At Beijing University she earned her 1st law degree, a diploma in international law, a field in which she's published widely. Xue then earned an LL.M. and a J.S.D. at Columbia University School of Law in New York. As detailed at her ICJ webpage, she has held a myriad of positions in China's Ministry of Foreign Affairs and has represented China before many international organizations; most recently, as China's Ambassador to ASEAN, the Association of Southeast Asian Nations. She's served as the President of the Asian Society of International Law since 2009.
As we've posted, Donoghue (left) holds a double B.A. with honors in Russian Studies and Biology from the University of California, Santa Cruz, and a J.D. from the University of California, Berkeley, School of Law. She's been a Visiting Professor there, and also has held positions at the Council on Foreign Relations, Georgetown University Law Center, and the George Washington University School of Law. Save for 2 stints in the Treasury Department and at Freddie Mac, she's practiced at the U.S. State Department since 1984. She'd been serving as Principal Deputy Legal Adviser at the time of her nomination to the ICJ. Donoghue is a member of the American Society of International Law, which, as shown in the video below, held a June 2010 event that featured comments by Donoghue, by current State Department Legal Adviser Harold Hongju Koh, and by Koh's immediate predecessor, John B. Bellinger III.

On July 31

On this day in ...

... 1964, U.S. President Lyndon B. Johnson appointed Dr. Margaret Joy Tibbetts to serve as U.S. Ambassador Extraordinary and Plenipotentiary to Norway. Tibbetts presented her credentials on October 6 of the same year, and left the post on May 23, 1969. During that tenure she would "escor[t] Martin Luther King, Jr. and his family when he received the Nobel Peace Prize in Oslo in 1964." She also was quoted in The New York Times story announcing King's award:

As an American and representative of the American people, I want to express joy and gratitude that one of my fellow countrymen has been awarded this prize.

Tibbetts had been on August 26, 1919, in Bethel, Maine, and earned a Ph.D. at Bryn Mawr College in Pennsylvania. In 1944 she became a career officer of the U.S. Foreign Service, serving in Washington, London, Brussels -- and eventually as officer-in-charge of the consulate general at what was then Leopoldville, Belgian Congo (today, Kinshasa, Democratic Republic of Congo). In 1971 she received the Distinguished Honor Award (ribbon at right), "the highest decoration bestowed by the United States Department of State," and retired from government service. She became a professor, teaching foreign policy, at Bowdoin College near her hometown. Miss Tibbetts, as her obituary referred to her, died in Maine this past April 25, at age 90.

(Prior July 31 posts are here, here, and here.)

On Art! History & Holocaust claims

(Today alumna Jennifer Kreder contributes another On Art! guest post, prompted by her work in a pending looted-art case; her prior, related posts are here and here)

What judges think of their function and task undoubtedly informs their understanding of their power or jurisdiction.

In a March 3d order denying reconsideration of her January 6th dismissal of the heirs' lawsuit in the Nazi-looted-art case of Grosz v. MoMA, U.S. District Court Judge Colleen McMahon (below right) of the Southern District of New York stated on page 11 that the court was confronted

with a legal, not a historical, question.

This view is a false dichotomizing of the judicial function.

Judges cannot be expected to know intimately the historical context of all cases that come before them. But under precedents like Iqbal, Twombly and their progeny, judges should not ignore widely accepted historical facts when deciding whether a claim arguing that a seemingly voluntary transaction was, in fact, made under duress is “plausible.”
From the very beginning of the Nazi era, law and jurisprudence became a strong component of justification of regulations that deprived “enemies of the State” of their liberty and property, and these deprivations led in turn to mass murder.

Indeed, as documented in Robbing the Jews: The Confiscation of Jewish Property in the Holocaust, 1933-1945 (2008), by a Research Scholar at the Center for Advanced Holocaust Studies of the U.S. Holocaust Memorial Museum, Martin C. Dean, the “legalized” grand larceny became a form of financing the mass murder.
The Führerprinzip demanded unquestioning loyalty to the concentrated power of a “unitary executive.” Both legislators and judges in Nazi Germany participated in the normalization of practices of State grand theft that were engineered to make involuntary transactions appear “ordinary and legal” from the very first weeks of the Nazi regime early in 1933, even before the infamous racist Nuremberg laws of “blood and honor” in 1935, and even before the final push to a “Final Solution.” The U.S. Consul General in Vienna, immediately after the Anschluss of Austria in March 1938, poignantly observed:

There is a curious respect for legal formalities. The signature of the person despoiled is always obtained, even if the person in question has to be sent to Dachau in order to break down his resistance.

Jews were systematically excluded from professions and forced to compile inventories to streamline the despoliation of their property from 1933 to 1942, when Jews had little or no property left to rob, and when the focus turned to “cost-efficient” mass murder in the death camps of occupied Poland.

It is a gross distortion of reality to suggest that the financial despair of Jews in 1933, during widespread, sporadic boycotts and until the passage of the first Nuremberg law in 1935, resulted from a series of isolated private setbacks brought about by generalized, severe financial conditions akin to the Great Depression. The National Socialist platform, adopted as official German state policy as of 1933, was committed to driving Jews and other “enemies of the State” out of economic life.
This is the historical context in which modern claims to Nazi-looted art should be viewed.

Too frequently, some of our judges seem to have forgotten history. In kneejerk fashion, some seem to assume that claims 70 years old simply cannot be viable. This reaction is contrary to history, and to the U.S. executive policy. Consider, in addition to documents on which I earlier posted, this August 27, 1951, statement, "The Recovery of Cultural Objects Dispersed during World War II," by Ardelia R. Hall, the Fine Arts & Monuments Adviser to the U.S. State Department, which appeared in the Department's Bulletin:

For the first time in history, restitution may be expected to continue for as long as works of art known to have been plundered during a war continue to be rediscovered.

The executive branch has not deviated from this position to date.

(A version of this post appears at PrawsfBlog)