Rebuilding Sierra Leone

The University of South Carolina School of Law recently hosted a very interesting conference entitled “Rebuilding Sierra Leone: Changing Institutions and Culture” (logo at right). Organized by Professor Joel Samuels, this April 1 conference was one of the first interdisciplinary academic conferences in the United States to focus solely on the unique challenges of redeveloping Sierra Leone after its decade-long armed conflict in the 1990s.
The goal of the conference was to highlight salient issues that have hindered Sierra Leone’s post-war rebuilding, and to begin discussion among academics working in different disciplines on future collaborations on Sierra Leone-specific projects.
The conference was divided into four panels:
► “Sierra Leone in Context”
► “Paths to Rebuilding Sierra Leone”
► “The Special Court for Sierra Leone”
► “The Problem of Child Soldiers”
Some highlights included a talk by Professor Erika George (University of Utah) (left) that began with the observation that erosion or failure of the education system is one of the first indicators of a failing or failed state. She linked this idea to the state of education in Sierra Leone prior to and after the conflict, noting some post-conflict improvements but also some very worrying gaps that still remain.
Another thought-provoking speaker was Professor Jennifer Moore (University of New Mexico) (right), who argued that post-conflict Sierra Leone needs not only courtroom (retributive) justice, it also needs to focus on social justice (material well-being), and historical justice (addressing peace in community life. She highlighted the work of two nongovernmental organizations within Sierra Leone – the Centre for Development and Peace Education and Fambul Tok – in contributing to the two latter forms of justice.
Yours truly, Valerie Oosterveld, had the honour of presenting a paper on the jurisprudence of the Special Court for Sierra Leone with respect to gender-based crimes against humanity and war crimes. I traced positive and less-than-positive legal reasoning with respect to gender-based acts in the trial judgments in what are usually referred to as the Armed Forces Revolutionary Council and the Civil Defence Forces cases. I contrasted these cases with the Revolutionary United Front case, arguing that the RUF case represents a step forward in efforts to contextualize rape, sexual mutilation and other forms of sexual violence directed against women, girls, men and boys, as well as gender-based crimes such as forced marriage. My presentation represented a continuation of arguments outlined in a recently-published article - “The Gender Jurisprudence of the Special Court for Sierra Leone: Progress in the Revolutionary United Front Judgments” (2011) 44(1) Cornell International Law Journal 49-74.
The conference participants also heard interesting presentations by: Prof. Christopher DeCorse (Syracuse University), Herb Frazier (author), Kevin Lowther (author), Joseph Opala (Bunce Island Conservation Project), Ambassador June Carter Perry (former US Ambassador to Sierra Leone), Lt. Col. Mark Daubney (British Embassy), Ambassador David Scheffer (Northwestern University), James Hodes (Cochran Law Firm), Anthony Triolo (International Center for Transitional Justice), Professor Daniel Hoffman (University of Washington), Professor Mark Drumbl (Washington & Lee University) and Professor Noah Novogrodsky (University of Wyoming).
There was discussion among the conference participants about publishing an edited volume focused on possibilities and challenges facing Sierra Leone in its rebuilding efforts: I will keep IntLawGrrl readers informed about this potentially exciting development!

Guest Blogger: Jayne Stoyles

We are delighted to welcome Jayne Stoyles (left) as today's guest blogger.
Jayne is a lawyer, the first Executive Director of the Canadian Centre for International Justice, and an Ashoka Canada Fellow. A decision issued recently in a human rights case in which CCIJ has submitted a friend of the court brief forms the core of her guest post below.
Prior to joining CCIJ, Jayne served for several years as the Program Director of the NGO Coalition for the International Criminal Court in New York, a global network of 2,000 NGOs that helped bring about the establishment of the Court and that was twice nominated for a Nobel Peace Prize during her tenure. She: was also a Senior Adviser to the Institute for Global Policy in New York on issues of human security, UN reform and international justice; provided International Humanitarian Law training for the Red Cross; and taught international law at Carleton University in Canada.
Jayne has spent time in Africa, Latin America, and a First Nations community in northern Canada with a variety of volunteer placements, including working with Centro de Derechos de Mujeres in Honduras on updates to the criminal code from a gender perspective. She is the 2010 winner of the Walter S. Tarnopolsky Human Rights Award and of the Lord Reading Law Society Human Rights Award, was named one of Ottawa’s Top 50 People in 2008 by Ottawa Life Magazine, and has been featured in Canadian legal magazine The Precedent and in the on-line Charity Village Spotlight. She has just accepted a position on the Board of Directors of the International Institute for Criminal Investigations, an international organization of professional investigators, lawyers and academics dedicated to the training and deployment of professionals for the investigation of atrocities. Jayne regularly speaks, writes and provides media interviews about the making of the ICC and international justice issues from a Canadian perspective.
Like Pam Spees, Valerie Oosterveld, and Mary Hansel before her, Jayne would like to dedicate her IntLawGrrls contribution to the beloved Rhonda Copelon.

Heartfelt welcome!

Should international courts prosecute sex crimes?

(Alumna Margaret deGuzman contributes this guest post, another in our series of posts on essays forthcoming in "Women and International Criminal Law," a special issue of the International Criminal Law Review)

As a participant in the IntlawGrrls-sponsored roundtable on “Women in International Criminal Law” last October, I presented my research on the philosophical justifications for giving priority to the prosecution of sex crimes at international criminal courts. My essay will appear in our special issue under the title "Why Should International Courts Prosecute Sex Crimes?"
International courts face serious resource constraints; they can generally prosecute only a small fraction of the serious crimes within their jurisdictions. Ever since the Nuremberg and Tokyo trials, where sex crimes were largely ignored or prosecuted under such euphemistic labels as “failure to respect family honor,” feminists have advocated for more resources to be allocated to the prosecution of sex crimes. (credit for 2009 photo of ICTY in session)
International prosecutors have heeded this call to some extent, placing greater emphasis on the investigation and prosecution of sex crimes. Selecting sex crimes for prosecution, however, often requires leaving other serious crimes unpunished, including crimes that resulted in death.
Some have questioned the appropriateness of such selection decisions. For example, in a 2002 article (pp. 310-11) a former trial attorney at the International Criminal Tribunal for the former Yugoslavia, Peggy Kuo (right), reported that in the early days of the ICTY investigators made comments like:

'I’ve got ten dead bodies, how do I have time for rape?'

Moreover, empirical evidence from various national fora indicates that many people consider sex crimes less serious than crimes resulting in death.
My symposium contribution represents an initial effort to provide philosophical justification for giving priority to sex crime prosecutions at international courts.
The essay examines each of the primary philosophical bases advanced for international prosecution to determine how they inform decisions whether to give priority to sex crime. These are:
► Retribution,
► Deterrence,
► Expressivism, and
► Restorative justice.
The essay finds that retribution and deterrence support such selections at least some of the time, and that expressivism and restorative justice provide an even stronger foundation for giving priority to sex crimes.
► While notions of retributive desert are complex, an argument can be made that at least some perpetrators of sex crimes are more deserving of punishment than some perpetrators of crimes resulting in death. In particular, killing crimes are sometimes unintentional, while sex crimes generally involve purposeful conduct.
► Prosecution of sex crimes may also provide greater deterrent benefits at least under some circumstances, such as when conviction for such crimes carries a greater stigma than conviction for illegal killings.
► Most importantly, there is a significantly greater need for the international community to express condemnation of sex crimes than of killing crimes, which are already considered serious violations of moral norms throughout the world.
► Finally, restorative justice goals may be more achievable in the context of sex crimes than crimes involving killing, because the immediate victims remain alive and thus potentially able to participate in and benefit from restorative processes.
I will be further developing the ideas sketched in this essay in the context of "Thematic Investigation and Prosecution of International Sex Crimes," a conference in which IntLawGrrl Valerie Oosterveld also will take part. Cosponsored by Yale University and the Belgium-based Forum for International Criminal and Humanitarian Law, the conference will be held in Cape Town, South Africa, on March 7-8, 2011. A publication will follow.

Closure of Taylor Trial

On Friday, Charles Taylor’s defence officially closed its case in the case of Prosecutor v. Taylor (Taylor, far right) at the Special Court for Sierra Leone. In his final submissions, Taylor’s lead counsel, Courtenay Griffiths, told the judges that "it has been accepted by us right from the outset that terrible crimes were committed in Sierra Leone. We share the concerns for the victims of these crimes, and we want to make clear that differences between the parties in the courtroom should not be exploited as evidence that either party naturally assumes a morally superior position. On that note, this is the case for Mr. Taylor."
Taylor is charged with responsibility for 11 counts, including the crimes against humanity of rape and sexual slavery, and the war crimes of recruitment and/or use of child soldiers and committing acts of terror. The defence formally opened on July 13, 2009, and Taylor took the stand in his own defence the next day. He remained on the stand until February 18, 2010. The defence called 21 witnesses on its behalf, ending with the testimony of Sam Flomo Kolleh, a Liberian national and former member of the Revolutionary United Front in Sierra Leone. The defence used Mr. Kolleh’s evidence to try to rebut the prosecution’s evidence that Taylor was responsible for providing support to the Revolutionary United Front.
Written final trial briefs will be filed in January 2011, with oral closing arguments for both parties scheduled for February 8-11, 2011. The trial judgment is expected in mid 2011. The trial began in 2008 at the premises of the International Criminal Court in The Hague, and then moved in May to the premises of the Special Tribunal for Lebanon in nearby Leidschendam, Netherlands.
The Registrar of the Special Court, Binta Mansaray (right), noted that the closure of the defence case “is not only a major milestone in the Charles Taylor trial, but in the work of the court as a whole.” The end of the Taylor trial and any subsequent appeals will mark the end of the current work of the Special Court. The Special Court will then close and be succeeded by a residual mechanism in order to carry out legal and practical obligations that naturally continue after closure, such as victim protection and sentence enforcement monitoring. The Prosecutor, Brenda Hollis (left), also welcomed the closure of the defence case, expressing thanks to all of the witnesses who testified during both the prosecution and defence phases of the trial: “Their courage and willingness to take the stand and bear witness has been an inspiration. We in the Prosecution have always said that we fight for justice in the name of the victims, but they are the ones who have truly made justice possible.”
The Taylor trial has been lauded for its efficiency, which was directly related to the cooperation of Taylor. As well, Taylor’s lead defence counsel, Griffiths, has garnered attention for his effective – and dramatic - advocacy on his client’s behalf.
As I noted in an earlier post on the Taylor trial, the most difficult aspect of this case for the prosecution is adequately proving the linkages between Charles Taylor, who was in Liberia during the time period of the indictment, and the crimes committed in Sierra Leone. The prosecution brought linkage witnesses, and Taylor’s defence worked to raise doubts about that evidence.
In February, keep an eye on the incredibly helpful blog The Trial of Charles Taylor for updates on the closing arguments in the Taylor case. You can also watch the closing submissions through live streaming on the Special Court’s website.

Read On! ICL group newsletter

(Read On! ... occasional posts on writing worth reading)

The International Criminal Law Interest Group of the American Society of International Law (of which I am pleased to serve as Co-Chair along with Linda Malone (right), has just issued its most recent issue of "Accountability," the Group's newsletter. The newsletter includes articles by our own Valerie Oosterveld. Here is editor Margaret Zimmerman's (below right) introduction to the volume:

This issue of Accountability takes account of recent trends in
international criminal law with a particular eye towards the future of prosecuting international crimes. In doing so, the issue opens with Keith Petty and Dov Jacobs discussing the crime of aggression. In a point-counter-point format, these authors examine the arguments for and against the UN Security Council playing a role in defining the crime and determining jurisdiction over the crime. While this section of the newsletter focuses on the progression of the ICC, the next two articles bring to light the challenges faced by the closing ad hoc tribunals highlighted by Valerie Oosterveld in her recap of the ASIL conference roundtable which took place in March 2010.
This is explored further by Ousman Njikam’s article examining the ICTY’s procedures of pardoning, sentencing and early release which, he points out, act to ensure the continuation of the tribunal’s efforts towards justice. The pursuits of justice continue at the Special Court for Sierra Leone where Haydee Dijkstal studies an accused’s right to counsel as it has played out in the Charles Taylor trial
court over the past year.
Pubudu Sachithanandan in his article regarding the Office of the Prosecutor’s Policy Paper on Victim Participation provides an overview of the procedural safeguards and way forward for victims at the ICC.
The newsletter wraps up with a domestic look at prosecuting international crimes when Olga Martin-Ortega and Rosa Ana Alija-Fernandez highlight the efforts of Argentinean courts to open cases under the principle of universal jurisdiction for those crimes committed during Francoist Spain.

[The articles provide] a glimpse into the progression of international criminal law from a substantive viewpoint regarding the future of the crime of aggression, procedural safeguards at both the ICC and ad hoc tribunals and the rise of national prosecutions.

Check it out!

The United States & the ICC

(Part 2 of a 3-part series)

For all the years of its existence, the International Criminal Court has, in effect, shared space with another occupant. Ever present, though sometimes hard to see, has been the United States of America.
The story of the ICC is also a story of U.S. foreign policy. It is a story of the relation between the world’s remaining superpower, a key proponent of the post-World War II International Military Tribunals, and today’s direct descendant of those tribunals, the ICC.
The United States was among a handful of countries to vote against the ICC Statute at the 1998 Rome diplomatic conference (above left). (credit) The United States has kept its distance ever since, sometimes quite hostilely so. Its status as a nonparty state deprived it of any vote at the 2010 Kampala Review Conference and other meetings of the ICC Assembly of States Parties. Yet the importance of the United States to the project of international criminal justice cannot be ignored.

Thus it was at the recent 4th International Humanitarian Law Dialogs at Chautauqua, New York, on "Crimes Against Peace - Aggression in the 21st Century": participants repeatedly turned to talk of the United States.
John L. Washburn, Convener of AMICC, the American NGO Coalition for the ICC, said it well:

For a country as powerful as the United States, the limitation of being a nonparty state is that instead of being the 2,000-pound gorilla, you’re the 1,800-pound gorilla in the room.

U.S. heft left its imprint on the package of crime-of-aggression amendments adopted at Kampala.
A definition forged in the years when U.S. officials had absented themselves from ICC discussions survived with little change, save for the agreement that the offense occurs only when a U.N. Charter violation is "manifest" – an adjective deemed more stringent than others considered. Even more important was the effect that concerns voiced by the United States had on amendments setting forth the paths by which the ICC may investigate and prosecute allegations of aggression.
At Chautauqua, 2 succinct critiques underscored this effect:
► "We came out of Kampala with a consensus," said former Nuremberg Prosecutor Benjamin B. Ferencz, a longstanding supporter of making the crime of aggression punishable in international criminal fora. The consensus, in his view: "Everybody can veto everything."
► Washburn again came quickly to the point. "Any country that’s paying attention can avoid jurisdiction over it for aggression," he said, adding, "I think this was probably the outcome that the United States was hoping for but not sure they could get."

(The negotiations leading to the Kampala package, now open for states’ ratification, are aptly detailed in IntLawGrrl Beth Van Schaack's new paper, on which she recently posted.)

For the official U.S. perspective, Dialogs participants turned to one of their own – former international prosecutor Stephen J. Rapp (right), since last September the United States’ Ambassador-at-Large for War Crimes Issues. Rapp, whose arrival at the State Department coincided with the return of the United States to ICC negotiations (prior posts here and here), told the Dialogs participants:

While we had been absent from the ICC, we had not been silent in the faces of crimes that shock the conscience.

Rapp cited as proof U.S. support for the Special Court for Sierra Leone (of which he used to be Chief Prosecutor), for the International Criminal Tribunal for the former Yugoslavia, and for other tribunals.
Why the rapprochement?

The reason for our involvement in the ICC is that if there’s to be an answer at the international level for the atrocities that are being committed, tonight, it will not be in the ad hoc tribunals. It will be either at the national level, where of course it’s always best, or in the ICC.

Rapp continued:

That’s where the butchers will be tried. That’s where Americans need to be supportive, to ensure its success.

(See too this transcript of a post-Kampala press conference featuring Rapp and State Department Legal Adviser Harold Hongju Koh.) Though he deemed U.S. ratification of the ICC treaty "difficult," Rapp said that "at least at this stage we want to make it possible for this institution to succeed."
As IntLawGrrls’ own Valerie Oosterveld explained in her superb year-in-review lecture at the Dialogs (left), since late last year the United States has pursued a policy of positive engagement with the ICC. Although the United States remains a nonparty state, on a case-by-case basis it makes political or diplomatic statements in support of the ICC, considers ICC cooperation requests, shares information with the ICC, and provides the ICC with witness assistance.
Rapp gave to 2 specific examples of this policy in action:
► This spring, Congress enacted the Lord’s Resistance Army Disarmament and Northern Uganda Recovery Act (prior post); and
► Just weeks ago, President Barack Obama criticized Kenya for giving safe passage to Omar al-Bashir, the Sudanese President whom the ICC seeks to arrest on charges of genocide.

► Had Rapp spoken today rather than last week, he might have added yesterday's related news; specifically, the proclamation by Secretary of State Hillary Clinton of a "new American moment" of "global leadership," and the announcement by the United States' U.N. Ambassador, Susan E. Rice, that on September 24 Obama will attend a U.N.-organized summit on Sudan, focusing on Darfur and the impending referendum on South Sudan secession.

And what of the crime-of-aggression amendments adopted at Kampala?

On this, Rapp was rather less fervid.
Rapp described the definition of aggression in proposed Article 8 bis as "one that departed significantly from Nuremberg." He cited an International Herald Tribune op-ed that another Dialogs participant – former international prosecutor Richard J. Goldstone – had written in the runup to Kampala (prior post), and warned that definitional ambiguity could invite confused constructions and could force the ICC on one side or the other of a conflict.
A particular concern, Rapp said, is that worthy military interventions might be subjected to allegations of aggression. Resounding a note that Obama had struck in his Nobel Peace Prize Lecture last year, Rapp spoke of "the debt we owe to people who went into harm’s way and who exercised force." Referring to the Nuremberg trials (right), Rapp added, "The Nazi leaders would never have been in the dock if lives were not lost."
That note stirs many in the world to unease, particularly when it is struck by a country engaged in military intervention, Rapp acknowledged. "That’s a challenge that we in Kampala had to confront," he said, "to deal with the reality in the world while signaling our desire for a world of law, a world where law can eventually displace force."
A number of participants welcomed the United States’ embrace of ICC observer status.
Noting Rapp’s reiteration of the positive-engagement policy in his Chautauqua remarks, Oosterveld, who has served as a member of the Canadian delegation to the ICC Assembly of States Parties, commented,

I felt very heartwarmed about it because I had been there in 2000 when the United States withdrew from the ICC. To hear this from Rapp was a very, very wonderful breakthrough.

Washburn nonetheless expressed concern that as events elsewhere have moved to the fore, on the matter of the ICC "there has been a certain complacency" among U.S. officials since Kampala. He warned against too great a disconnect.

Washburn’s cautionary tale?

Reminder of the dysfunction that impeded relations between the United States and others at the Rome Conference that established the ICC.

(This series on the crime of aggression and the 4th IHL Dialogs, which IntLawGrrls cosponsored, concludes tomorrow with Part 3 (here), a report on the celebratory speech that closed the Dialogs. Part 1 of this series is here.)

Go On! IntLawGrrls @ 4th IHL Dialogs

(Go On! is an occasional item on symposia and other events of interest)

Delighted to announce that IntLawGrrls again will cosponsor the International Humanitarian Law Dialogs at the Chautauqua Institution in upstate New York, not far from another cosponsor, the Robert H. Jackson Center.

The theme of this year's 4th annual Dialogs, to be held August 29 to 31, is timely given the outcome of the International Criminal Court Review Conference in Uganda. IntLawGrrls wrote a Kampala series of posts about that conference, as well as a crime of aggression series about a key conference outcome, the adoption of provisions designed to make the crime punishable by the ICC.

The Dialogs' theme, in short, is: Crimes Against Peace - Aggression in the 21st Century.

Exploring it will be prosecutors from international criminal fora, plus many international criminal law scholars. (Prior IntLawGrrls posts.) Last year was a great opportunity to meet such colleagues at Chautauqua, a picturesque lakefront venue. It was also the source of 2 IntLawGrrls guest contributions: a trilogy of posts by Judge Patricia M. Wald (here, here, and here), plus a post by Judge Marilyn J. Kaman (here).

Many present and former international prosecutors are expected to take part this year. In addition to those mentioned as specific speakers in the program that follows, prosecutors set to attend include the following from the:

► International Criminal Court, Deputy Prosecutor Fatou Bensouda (left);

► International Military Tribunal at Nuremberg, former prosecutor H.W. William Caming;

► Special Court for Sierra Leone, Chief Prosecutor Brenda Hollis (below right), recently in the news for calling a supermodel to testify at the ongoing Hague trial about diamonds received from defendant Charles Taylor, former President of Liberia, and former Chief Prosecutor David M. Crane, the founder of the Dialogs who's now a Professor of Law at Syracuse University, another cosponsor, and the founder of the Dialogs;

► Extraordinary Chambers in the Courts of Cambodia: Co-Prosecutor Andrew T. Cayley and former Co-Prosecutor Robert Petit; and
► International Criminal Tribunals for Rwanda and for the former Yugoslavia, former Chief Prosecutor Richard J. Goldstone.

Sessions on the current program include:

Sunday, August 29

► Showing of War Don Don, an award-winning HBO Documentary film about a Special Court trial in Sierra Leone, moderated by filmmaker Rebecca Richman Cohen (left).

Monday, August 29

► Keynote speech by Benjamin B. Ferencz, formerly a prosecutor at the International Military Tribunal at Nuremberg and a lifelong activist on behalf of international criminal justice, introduced by Professor Michael P. Scharf of Case Western Reserve University School of Law, another cosponsor.

► Updates from all the current prosecutors, moderated by Professor John Q. Barrett, St. John's University School of Law.

► Keynote speech by Judge Hans-Peter Kaul, 2d Vice President of the International Criminal Court, introduced by Leila Nadya Sadat, an IntLawGrrl guest/alumna who contributed to our Kampala series, and Director of the Whitney R. Harris Institute at the Washington University School of Law, another Dialogs cosponsor.

► Dialog on the crime of aggression, with Ferencz, John Washburn, Convener of the American Non-Governmental Organizations Coalition for the International Criminal Court, and William R. Pace, Convenor of the Coalition for an International Criminal Court, moderated by Professor David J. Scheffer of Northwestern University School of Law, formerly U.S. Ambassador-at-Large for War Crimes.
► Keynote address by Stephen J. Rapp, currently the U.S. Ambassador-at-Large for War Crimes, and formerly the Chief Prosecutor at the Special Court for Sierra Leone, introduced by David Sullivan of Enough Project, another cosponsoring organization.

Tuesday, August 31, 2010

► Year in Review -- International Criminal Law, by IntLawGrrl Valerie Oosterveld (left), a Professor at the Faculty of Law, University of Western Ontario, and frequent contributor to our Kampala series.

► Keynote speech by Professor William Schabas, Irish Centre for Human Rights, National University of Ireland, Galway.

► Issuance of the 4th Chautauqua Declaration & Conclusion of Dialogs, hosted by IntLawGrrl Diane Marie Amann (yours truly, also a Kampala series contributor), Professor of Law at the University of California, Davis, wearing my hat as a Vice President of the American Society of International Law, another cosponsor of the IHL Dialogs.

For more information, contact Carol Drake at cdrake@roberthjackson.org.

Read On! Women in armed conflict

(Read On! ... occasional posts on writing we're reading) While doing some summer research on gender issues in international criminal law, I was pleased to see that the International Review of the Red Cross has recently published an entire volume focused on women in armed conflict. Here is how the Review describes the theme of the volume:

Over the centuries, our perception of the main actors in warfare has been shaped by stereotypes of men as the aggressors and women as peace-loving and passive bystanders. However, the reality is women also take an active role in armed conflicts and in their aftermath; as politicians, combatants, leaders of non-governmental organisations, social and political groups and peace campaigners. Appropriate action requires a greater understanding of the impact of armed conflict on women and the particular vulnerabilities they face.

Each of the articles in the volume are available in pdf format on the website of the International Committee of the Red Cross and through Cambridge Journals. Here is a list of the articles, all of which I can commend to you, as they bring different perspectives to the discussion of women and girls in war– and men and boys, through the excellent piece at the end:
► Editorial, Toni Pfanner
► Interview with Mary Robinson
► "Between Amazons and Sabines: a historical approach to women and war," Irène Herrmann and Daniel Palmieri
► "The dialogue of difference: gender perspectives on international humanitarian law," Helen Durham and Katie O'Byrne
► "Women fighters and the ‘beautiful soul’ narrative," Laura Sjoberg
► "Women's participation in the Rwandan genocide: mothers or monsters?," Nicole Hogg
► "From helplessness to agency: examining the plurality of women's experiences in armed conflict," Medina Haeri and Nadine Puechguirbal
► "Women in detention," Julie Ashdown and Mel James
► "Women, armed conflict and language – Gender, violence and discourse," Laura J. Shepherd
► "Women, economy, war," Carolyn Nordstrom
► "‘They came with two guns’: the consequences of sexual violence for the mental health of women in armed conflicts," Evelyne Josse
► "The Security Council on women in war: between peacebuilding and humanitarian protection," Alain-Guy Tachou-Sipowo
► "UN Security Council Resolutions 1325 and 1820: constructing gender in armed conflict and international humanitarian law," Amy Barrow
► "Between rhetoric and reality: exploring the impact of military humanitarian intervention upon sexual violence – post-conflict sex trafficking in Kosovo," Samantha T. Godec
► "Lost in translation: UN responses to sexual violence against men and boys in situations of armed conflict," Sandesh Sivakumaran.

Guest Blogger: Heather Goodman

It’s IntLawgrrls’ pleasure to welcome Heather Goodman (left) as a guest blogger. Today she joins me, IntLawGrrl Valerie Oosterveld, to contribute the joint post below on Canadian prosecutions of genocide under the Crimes Against Humanity and War Crimes Act. Heather is a law student, and my research assistant, at the University of Western Ontario in Canada. She graduated from Queen’s University (Canada) with an Honours B.A. in Political Studies. She has a strong interest in human rights law and social justice issues.
Heartfelt welcome!

Gender Crimes and Canada's Genocide Prosecutions

(Delighted to welcome guest Heather Goodman, who contributes this post in tandem with IntLawGrrl Valerie Oosterveld)

On Friday, Jacques Mungwarere, an Ontario resident who immigrated several years after the 1994 genocide in his native Rwanda, appeared in a Canadian court in connection with 4 counts, arising out of events in the Kibuye region, levied against him in June: 2 charges of genocide (intentional murder and causing serious bodily or mental harm to Tutsis); and 2 charges of crimes against humanity (intentional murder and sexual violence). Mungwarere, who appeared before the Ontario Superior Court in Ottawa (logo at left), is the 2d person to be charged under Canada’s Crimes Against Humanity and War Crimes Act. Passed in 2000, the Act permits the national prosecution of genocide, crimes against humanity, and war crimes under the doctrine of universal jurisdiction. (The website of the Canadian Centre for International Justice provides more details on the case.)
The first person to have been charged is Désiré Munyaneza (below right), a Rwandan who had been living in Toronto before his arrest on October 19, 2005. (photo credit) Authorities charged him, under the 2000 Canadian Act, with 7 seven counts stemming from events in the Butare region of Rwanda: 2 counts of genocide (intentional murder and causing serious bodily or mental harm to Tutsis); 2 counts of crimes against humanity (intentional murder and sexual violence); and 3 counts of war crimes (intentional murder, sexual violence and pillaging).
Munyaneza’s trial officially began on March 27, 2007, in Montreal, though it had been preceded by a rogatory commission in Kigali, Rwanda, during which Justice André Denis of Quebec Superior Court heard the first 14 prosecution witnesses -- witnesses unable to travel to Canada. At trial proceedings in Montreal, the prosecution called an additional 16 prosecution witnesses, for a total of 30. The accused called 36 witnesses in total. A dozen were heard by the court in Montreal; the remainder, by rogatory commission: 3 in Paris, 7 in Kigali, and 14 in Dar es Salaam, Tanzania.
On May 22, 2009, as then posted, Justice Denis issued a judgment of conviction on all counts. That same year, on October 29, Munyaneza was sentenced to life in prison, with no chance of parole for 25 years. His case is currently on appeal.
The Munyaneza judgment is important for the overall development of Canadian law under the Crimes Against Humanity and War Crimes Act. More specifically, we believe that it is also significant as an example of a gender-sensitive domestic universal jurisdiction prosecution.

Throughout the Munyaneza judgment, countless examples of gender-based crimes are evident:

► For example, expert witness Dr. Rony Zachariah told the court about his pregnant colleague, a Hutu woman. She was killed because her husband was Tutsi, and therefore, “the child she was carrying … would be Tutsi” (para. 456).
► Several witnesses recounted a difference in treatment between male and female victims. Witness C-19 stated that “Minister Pauline gave instructions to kill the men and rape the women,” and that Munyaneza was particularly zealous in following these instructions, making the men undress before taking them away to be killed (para. 687). Witnesses C-16, C-17, and C-24 observed that the men were taken away and never seen again, while the women were raped (paras. 636, 655 and 834). Witnesses C-15, C-19 and C-23 recalled the treatment of Tutsi women as though they were property (paras. 620, 689 and 801). Witness C-22 stated that members of the Interahamwe militia “raped a girl on the prefecture grounds in front of everyone” (para. 768). Witness C-15 stated that about ten men raped her, and that “they wanted to see whether Tutsi women were better than others” (para. 617).
► Witnesses also recited instances of sexual captivity. Witness C-15, who was 17 years old in 1994, recounts how she and two other Tutsi girls were kept in sexual captivity for three days, where they were repeatedly raped (paras. 615, 619). Witness C-20 observed that women would be taken away by soldiers and the Interahamwe to be raped, and some did not return for two days (para. 704). Witness C-23 provided similar testimony, stressing that Interahamwe especially liked to take away very young girls for an evening or for days, and that Munyaneza took part in this violence (para. 800).
A militia member took witness C-21 to the house of Munyaneza’s father, Isaac Munyagasheke. Witness C-21 testified that Munyagasheke paid 20,000 Rwandan francs for her life, and she stayed at his house until the RPF took the city. She also told the court that, while at the house, she was raped five times by Munyaneza, who was armed and threatened to hand her over to the Interahamwe, who would kill her. C-21 felt unable to leave because she had nowhere safe to go (paras. 727-741). At one point, Munyaneza told C-21 that “he had kept her alive to show what a beautiful Tutsi was like, since she was the last” (para. 736).

In his May 22 judgment, Justice Denis defined the prohibited genocidal act of causing serious bodily or mental harm to include “rape, sexual violence, mutilation and interrogation accompanied by blows or threats” as well as “[s]ubjecting a person to intense fear, terror, intimidation or threats” (paras. 88-89). He relied in particular on the judgment of the International Criminal Tribunal for Rwanda in Prosecutor v. Akayesu in the course of defining the term “sexual violence” as any act of a sexual nature which is committed on a person under circumstances which are coercive (para. 95). Denis provided examples of such sexual violence: forcing a person to undress in public; sexual penetration; rape; and sexual molestation (para. 96). He adopted the same approach with regard to the crimes against humanity and war crimes counts (paras. 121 and 142). When considering the war crimes charges, Denis also held that an act of sexual violence is part of “inhumane acts”, “outrages upon personal dignity”, and “serious bodily or mental harm” as regards the victim (para. 141).
In an article entitled "Canada’s Crimes against Humanity and War Crimes Act on Trial: An Analysis of the Munyaneza Case", published this year in the Journal of International Criminal Justice, Professor Fannie Lafontaine (left), of the Faculty of Law at the University of Laval in Quebec, noted that Justice Denis' judgment did not define the term “rape”, despite the fact that his factual findings often referred to rape. In Canadian law, the crime of rape was replaced by the broader term “sexual assault” in 1983. As Lafontaine points out, since the Crimes Against Humanity and War Crimes Act defines Canadian law by reference to international criminal law, and since international criminal law does recognize the specific crime of rape, the crime of rape is again part of Canadian law, at least for the purposes of this statute. She argued that Justice Denis should therefore have defined the term “rape”.

For us, LaFontaine’s observation raises the very interesting question of how the Crimes Against Humanity and War Crimes Act should address such differences between international criminal law and Canadian criminal law -- especially differences that, many would argue, put Canadian law in a more progressive stance than international criminal law.

The EU and the ICC

(Delighted to welcome back guest/alumna Carmen Márquez Carrasco, currently a Visiting Professor at Columbia University's Institute for the Study of Human Rights, who contributes this post, another in IntLawGrrls' series of posts in connection with the just-concluded Kampala Conference)

The International Criminal Court Review Conference has constituted a significant milestone for the ICC, not only because of the adoption of the first amendments to the Rome Statute on Article 8 and on the definition of the crime of aggression and the jurisdictional filters (text detailed in post below), but, as posted by IntLawGrrl Valerie Oosterveld, because of the relevance of certain stocktaking discussions for the future work of the ICC.
Indeed, the Conference provided a unique opportunity for states and international organizations such as the European Union to reflect on the achievements of the Court and to reaffirm their commitments to combat impunity for the most serious atrocities.
The European Union and its 27 member states (above right) (map credit) count themselves among the most ardent supporters of the Rome System. (Overviews of the instruments and measures adopted, within the framework of the EU's Common Foreign and Security Policy, are here and here.)

In particular, the European Parliament for years has been committed to enhancing the development of international criminal justice, and has been closely following and supporting the activities of the ICC. Additionally, the Parliament has adopted various resolutions on ICC-related issues. Activities in this regard have been promoted by the Parliament Subcommittee on Human Rights, now under the very active Chair, Heidi Hautala (left) of Finland. (photo credit)
In its Annual Report on Human Rights in the World in 2008, the Parliament launched important appeals in relation to the ICC. It called on all EU Presidencies to raise the importance of cooperation with the ICC in all EU summits and dialogues with third countries, and on the European Council and the European Commission to continue their vigorous efforts to promote universal ratification of the Rome Statute and national implementing legislation.

A number of initiatives marked EU preparation for the Review Conference, which ran from 31 May to 11 June.

On 23 March, ICC Prosecutor Luis Moreno-Ocampo addressed a joint hearing of the EU's Foreign Affairs Committee, the Development Committee, and the Subcommittee on Human Rights. An additional exchange of views took place in the Subcommittee with the ICC President, Judge Sang-Hyun Song, on 27 April. And on 19 May seminar, “The EU and the ICC: Beyond the Review Conference”, was held in Brussels, Belgium, organized by the Spanish Presidency of the EU and the Coalition for the ICC, with the cooperation of General Secretariat of the Council of the EU and the EU Commission.
Support for the universality and integrity of the Statute, as well as for the stocktaking exercise, also was expressed through a relevant Resolution of the European Parliament adopted on 19 May. In the same line, EU Council Conclusions on the Review Conference followed on the 25 May.
In accordance with the above-referred legal and institutional framework, during the general debate at the Kampala Conference the EU Spanish Presidency (logo at right) and member states announced tangible commitments to the Rome Statute by making EU pledges to the ICC, around four issues:
► Promoting the universality and preserving the integrity of the Rome Statute;
► Fighting against impunity as a core value to share with EU partners when entering into agreements with third parties;
► Providing financial support to the ICC, civil society, and third-country partners; and
► Updating and reviewing of the EU instruments in support of the ICC after the meeting in Kampala, where appropriate.

Universality and implementation of the Rome Statute play an indispensable role in that regard. Both have been reviewed within the framework of the stocktaking exercise, with a significant contribution from the EU and EU countries. Among several measures, this contribution included the announcement during the Kampala conference of a substantial financial contribution to the Trust Fund for Victims.
Also, the first amendment of the Rome Statute, adopted on 9 June, was sponsored by an EU member State, Belgium, and co-sponsored by many other member states. It further enjoyed the strong support of the European Parliament. By dint of the Belgian proposal, the amended Article 8 of the Rome Statute brings under the jurisdiction of the Court the war crime of employing certain poisonous weapons and expanding bullets, asphyxiating or poisonous gases, and all analogous liquids, materials and devices, when committed in armed conflicts not of an international character.
The Review Conference was an occasion for the EU to demonstrate both a flexible approach to the issues under discussion and the necessary unity to forge consensus (encouraged by the Council and the European Parliament) on the crucial topic of the definition of the crime of aggression and the conditions for the exercise of jurisdiction over that crime. The approach succeeded despite the difficulties involved in the position of France and Britain as permanent members of the U.N. Security Council. In addition, important understandings were made possible with the United States so as to avoid detrimental results for both the EU and the Obama Administration, as discussed here by Bill Marmon, managing editor of European Affairs.
The outcome of the ICC Review Conference is an international success, and this is to Europe’s credit. In general terms, the EU attained its goals (with the possible exception of the failure to delete Article 124 of the Rome Statute, a deletion that had been pursued by the European Parliament).

Pragmatism, accompanied by a spirit of constructive compromise, is not a bad thing after all.

Assessing the ICC conference

(Another in IntLawGrrls' series of posts on the Kampala Conference)

KAMPALA, Uganda - The International Criminal Court Review Conference has ended in Kampala, with the adoption of a resolution adding the crime of aggression and conditions for the exercise of that jurisdiction to the Rome Statute.

How the final day unfolded
Friday began with numerous bilateral and group meetings among states -- for example, the Latin American and African groups met, together with the states of the Non-Aligned Movement, several times to consider the ever-changing proposals meant to resolve the issue of the conditions for the exercise of jurisdiction of the ICC over the crime of aggression. While some state discussions focused on determining if there was support for the "non-papers" issued the evening prior and throughout the day, other discussions aimed at trying to come up with creative solutions to bridge differences among states.
Originally, a plenary was set for 11:30 a.m. to consider the crime of aggression. However, that was delayed until 2 p.m., as intense inter-state discussions were still going on. At 2:00 p.m., the President – Ambassador Christian Wenaweser of Liechtenstein -- took the floor for only a few minutes to indicate that he had provided some delegations with a very informal paper, and that copies of that paper were now available to all states. He then delayed the plenary until 5:00 p.m. and, then again, at 9 p.m.
The plenary finally got under way at 11 p.m., when the President introduced his final package proposal, an effort to accommodate the bottom lines of all delegations. He then suspended the plenary again to allow states to consult.
Finally, at 12:10 a.m. yesterday, after the marathon day, the plenary took place. A resolution amending the Rome Statute was adopted by consensus. As posted, it sets out the crime of aggression and the conditions for the exercise of jurisdiction. These conditions allow the ICC to exercise jurisdiction over the crime of aggression without the need for prior U.N. Security Council authorization. However, this grant of independent jurisdiction is subject to significant caveats. Specifically, it:
► Does not extend to acts of aggression committed on the territory of or by nationals of non-state parties (unless the Security Council refers the matter to the ICC).
► Is subject to declarations of non-acceptance by states parties; and
► Will not come into effect at all until 2017 at the earliest, and even then only if States Parties positively decide to activate this new aspect of the ICC’s jurisdiction.

Also in Kampala
The crime of aggression was not the only focus of the Review Conference. Other aspects:
► The Rome Statute was also amended to include within the jurisdiction of the Court the war crimes of employing poison or poisoned weapons, employing asphyxiating, poisonous or other gases and analogous liquids, materials and devices, and employing bullets which expand or flatten easily in the human body, when committed in internal armed conflicts.
► There were stocktaking exercises focused on victims issues, peace and justice, complementarity and cooperation.
► Article 124 (a transitional provision) was retained, but will be revisited in 2015. A resolution on the enforcement of sentences was adopted and, finally, the Kampala Declaration was adopted, reaffirming states’ commitment to the universality, integrity and full implementation of the Rome Statute.

History-making?
Was the close of the Review Conference the historic moment many hoped it would be?
International criminal law now has a definition for the crime of aggression, as well as recognition of additional serious war crimes committed in internal armed conflicts. The jurisdictional regime for the crime of aggression does have built-in caveats and delays – which may seem less like success – but it certainly was not clear until the very final minutes of the Review Conference that any agreement was possible at all. Certain of the stocktaking discussions are likely to inform the work of the Court and the ICC’s Assembly of States Parties for years to come. Finally, increased cooperation on sentence enforcement may stem from the efforts of Norway at the Review Conference.
Thus I would argue that the answer to the question above is a qualified “yes”.

Final Day in Kampala

(Another in IntLawGrrls' series of Kampala Conference posts)

KAMPALA, Uganda – The Review Conference of the Rome Statute of the International Criminal Court ends today, and it is not clear whether there will be agreement on the crime of aggression. Specifically, it is unclear whether consensus can be found on the exercise of jurisdiction by the ICC over the crime of aggression.

Yesterday morning, Ambassador Christian Wenaweser (below left) (photo credit), the President of the Assembly of States Parties and Liechtenstein's Permanent Representative to the United Nations, released a non-paper with proposed language and footnotes suggesting additional or alternative ideas. The non-paper incorporated certain aspects of the Argentina, Brazil and Switzerland (ABS) and Canadian proposals, but did not replicate the outcome of the joint ABS-Canada discussions of the day before. All day yesterday, intense bilateral and multilateral negotiations and consultations took place in conference rooms, restaurants, the hotel lobby and corridors. In the evening, the President convened another plenary, with bilateral and group discussions continuing into the night.

One interesting issue that has arisen is whether there will be enough States Parties present in the event that a vote is called today on the aggression provisions.

The June 9th report of the Credentials Committee notes that credentials had been received in the form required from 72 States Parties. The President indicated that another one set of credentials – from Latvia – was received yesterday, making 73. An additional 12 States had submitted “information concerning the appointment of representatives”. This brings the number of States Parties present to 85.

While, normally, the report of the Credentials Committee is largely a non-issue at a diplomatic conference, this one is being read with some interest. The Rules of Procedure of the Review Conference require that, if consensus cannot be reached, then amendments to the Statute must be adopted by a 2/3 majority of States Parties. There are currently 111 States Parties, which means that 74 votes are required for the adoption of the aggression provisions. Earlier in the week, Burundi, Central African Republic, Comoros and Djibouti - states in arrears – were granted an exemption from lost voting rights. The President also indicated that Gabon, Guinea, Marshall Islands and Nauru may also ask for similar exemptions from lost voting rights, but it is not clear at the time of writing if they had in fact done so.

Assuming an agreement can be reached on the crime of aggression that enjoys relatively widespread support, even a few negative votes, combined with lost votes due to arrears and absences due to state representatives leaving to catch flights, could result in a failure to reach the required 2/3 majority of States Parties. This is one of the reasons why the Chair of the Working Group on the Crime of Aggression, Prince Zeid Ra'ad Zeid al-Hussein of Jordan (right) (photo credit), has appealed to states to ensure that they have representation for the entirety of the plenary meetings, which might run into the evening.

IntLawGrrls will keep you posted on the outcome of today’s negotiations!

Kampala Update: Stocktaking, Aggression

(Another in IntLawGrrls' series of Kampala Conference posts)

KAMPALA, Uganda – I last provided an update on the International Criminal Court Review Conference at the conclusion of the stocktaking discussions. Yesterday, several documents (available here) related to the stocktaking events were adopted:

► A resolution on the impact of the Rome Statute system on victims and affected communities,

► A resolution on complementarity,

► A moderator’s summary on the peace and justice discussion,

► A declaration on cooperation, and

► A summary of the roundtable discussion on cooperation.

Enforcement of sentences

As well, a resolution on strengthening enforcement of sentences – an initiative of Norway – was adopted. This resolution recognizes that there may be states that are willing to accept persons sentenced by the ICC, but which cannot enter into sentence enforcement agreements with the ICC because their prisons do not meet "widely accepted international treaty standards governing the treatment of prisoners," as required by Article 103 of the Rome Statute. The resolution encourages other states, and international and regional organizations, mechanisms or agencies, to cooperate with the interested state to help it bring its prisons up to international standards. The idea is that, if there is more cooperation among states in this respect, more states will be able to enforce ICC sentences, and convicted individuals will be able to serve sentences in prisons in a region nearer their homes. To date, the ICC has entered into sentence enforcement agreements with Austria, Belgium, Denmark, Finland, and the United Kingdom.

Aggression

The beginning of this week marked a turning point in the Review Conference. Attention is now squarely focused on the negotiations respecting the crime of aggression, about which IntLawGrrls have posted frequently this past year. Two days in a row, the Chair has issued a Conference Room Paper on the crime of aggression, putting forward language on the exercise of jurisdiction gleaned from state comments and views. The June 7 Conference Room Paper incorporated aspects of a proposal made by Argentina, Brazil and Switzerland. Canada and Slovenia have also put forward proposals on the exercise of jurisdiction. (Many documents available here.) Another Conference Room Paper might be issued today, based on yesterday’s country statements made in response to these two proposals. The Chair of those negotiations, Prince Zeid Ra'ad Zeid al-Hussein, Jordan's Ambassador to the United States and nonresident Ambassador to Mexico, expects that they will become quite intense as the end of the conference draws near. Accordingly, he asked all delegations to ensure that they are represented on Friday, even if the Review Conference goes late into the night (he said this because some participants have flights on Friday).

Additional events

Finally, I wanted to mention that there have been a number of fantastic side-events taking place at the Review Conference:

► IntLawGrrl Susana SáCouto has already blogged about the release of the report on “Case-based Reparations at the International Criminal Court” by the War Crimes Research Office at American University Washington College of Law.

► Another side-event to take note of is the launch by the ICC and the International Bar Association of the Uganda-specific “Calling African Female Lawyers” campaign. This national campaign, which is a part of a broader international six-month campaign, aims to encourage experienced female lawyers from Uganda to play a crucial role at the ICC by representing victims or defendants in proceedings before the Court. Over the next six months, applications from qualified African female lawyers – including Ugandan lawyers - will be given priority.