On March 3

On this day in ...
... 1976 (35 years ago today), contending that its eastern neighbor had committed acts of aggression against it, "Mozambique closed its borders and cut all links with Rhodesia," now known as Zimbabwe, "and mobilized for defense," according to The New York Times. Lines of communication were severed and rail links broken in a move that Maputo officials said stopped just short of a declaration of war.

(Prior March 3 posts are here, here, here, and here.)

On January 5

On this day in ...
... 1906 (105 years ago today), Kathleen Kenyon (left) was born in London, England, the eldest daughter of a father who would become director of the British Museum. Following her graduation in 1929 from Somerville College, Oxford University, Kenyon joined an excavation of ruins, led by the influential archeologist Gertrude Caton-Tomson, in what is now Zimbabwe. On her return to England she continued working, teaching, and publishing in the field of archeology. Kenyon became "world famous" in the 1950s, on account of her "[g]round-breaking concerning the Neolithic cultures of the Levant," conducted in the West Bank city of Jericho. (credit for 1969 photo by Jorge Lewinski) In 1973 Kenyon was named a Dame of the Order of the British Empire, equivalent to a knighthood. She died in 1978.


(Prior January 5 posts are here, here, and here.)

On December 21

On this day in ...
... 1979, in London, delegates from Britain and 3 Africa-based groups signed the Lancaster House Agreement by which the territory then known as Rhodesia gained full independence from Britain. It had been the site of multiparty conflict, and Ian Smith had declared it independent years earlier. Signers in addition to Smith included Robert Mugabe (prior posts), a Patriotic Front leader who in 1980 would be elected President of Zimbabwe (flag at right), as the country is now known. Among the matters negotiated was land reform -- as we've posted, still a source of controversy.

(Prior December 21 posts are here, here, and here.)

Kimberley Process & Zimbabwe diamonds

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

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

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

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

Africa-based international law projects

(Delighted to welcome back alumna Bonita Meyersfeld, who contributes a 2-part series of guest posts on international law in Africa. Part 2 is below; Part 1, published yesterday, is here.)

Having described the overall work of the Southern and Eastern African Regional Centre for Women’s Law at the University of Zimbabwe, I continue in this post with descriptions of research in progress:
► Makanatsa Makonese (left), a Doctor of Philosophy Candidate, is examining Zimbabwe’s Post-Independence Land Reform Laws and Policies and Their Impact on Women’s Right to Agricultural Land: A Critical Analysis of the Fast Track Land Reform Programme from 2000 and Beyond.
This research seeks to assess the availability or otherwise of a legal, policy, and institutional framework governing the Fast Track Land Reform Programme in Zimbabwe. The focus is on women and their right to access, own, and control agricultural land. The effect over the years of the country’s property laws in general, and land laws in particular, will be critically examined. The goal is to establish whether there have been any efforts during the implementation of the fast track land reform programme to break away -- away from a system that subjugates women in property ownership and toward one that recognises women as equal partners in national economic, social, and political development and transformation.
A primary focus of the research is the recognition that the fast track land reform programme was and is not just about parcelling out land but also about: creating social classes; developing jurisprudence around land ownership and reform in Zimbabwe; and setting up centres and sources of power that are critical in shaping the country in various ways. The position of women in the matrix and the country’s level of compliance with international human rights standards and best practices therefore have to be examined.
The nuance of the work is its engagement in a rights analysis in a context of rights violations; namely, the land grabs and concomitant displacement of landowners.
► Research by Renifa Madenga (left), also a Doctor of Philosophy Candidate, is entitled Using Women’s Voices/Experiences To Interrogate The Efficacy Of The International Criminal Justice System on Rape: The case of Rwanda 1994 Genocide. (credit for photo (c) Robert H. Jackson Center)
Her study explores the lived reality and experience of rape survivors of the 1994 Rwandan genocide. It is sited in the web of fears, needs, relationships, and anxieties that affect survivors of rapes committed during the Rwandan genocide, as well as their interactions with the international criminal justice system at the International Criminal Tribunal for Rwanda.
Using the voices and experiences of survivors and witnesses, the study interrogates the efficacy of the justice system. Its major questions: Does the system acknowledge and condemn the egregious abuses suffered by victim survivor witnesses? Does it recognize and addresse the needs, fears, and aspirations of those survivor witnesses?
The researcher, Madenga, works as an Appeals Counsel in the ICTR Office of the Prosecutor, and chairs that office's 3-year-old Sexual Violence Committee.
► Annette Mudola Mbogoh, another Doctor of Philosophy Candidate, is researching The 2007 Post-Election Violence As A Spring Board For Peace, Reconciliation And Reparation: A Case For The Participation And Involvement Of Women In Mombasa, Kenya.
The study investigates the participation of women in Mombasa in peace, reconciliation, and reparation processes through Kenya's Truth, Justice and Reconciliation Commission. Women suffered gross human rights violations in recurrent electoral violence in Mombasa -- in 1992, in 1997, and in the unprecedented 2007 general elections. (Prior IntLawGrrls posts available here.) Women have been internally displaced, lost their loved ones, their property, and their businesses. They are survivors of physical violence and rape. However, their voices, needs, and concerns have been sidelined in the current transitional justice process in Kenya (flag at right). The Truth, Justice and Reconciliation Commission presents an opportunity for women’s voices, injustices, and stories to be heard, investigated, documented, and redressed in the ensuing reparation programmes.
Against this backdrop, this research investigates the level of participation of women in the unfolding truth commission process, as well as the factors hindering women’s active involvement. It seeks both to document injustices committed against women by virtue of their sex and to identify priority concerns and preferred reparations on the part of survivors. It interrogates the question of truth-telling versus justice. The study highlights the importance of reparations to achieve true reconciliation and the extent to which women’s multiple identities influences their choice between collective and individual reparations. The study explores the politics of representation amongst women in a very polarized and ethnicized community. It furthers the debate on the right to truth, which has been expounded by the institutions of the inter-American human rights system. These arguments are hinged on the new Constitution of Kenya, which enshrines women’s right to equality and representation in legislative bodies through reservation of special seats. Finally, the study recommends implementation of a gender perspective in peace and reconciliation efforts, as is espoused in international instruments such as U.N. Security Council Resolutions 1325 and 1820.
► Under examination by Catherine Makoni is The Impact of the Political Crisis in Zimbabwe on Women’s Right to Protection of the Law: An Investigation into the Handling of Cases of Politically Motivated Rape from 2000-2009.
Makoni's research investigates how cases of politically motivated rape have been dealt with, if at all, within the justice system of Zimbabwe (flag at right). The objective is to interrogate the duty of the state to protect women, and therefore its role to provide sufficient and meaningful redress. The research undertakes an empirical assessment of what assistance victim survivors of rape have received from both state and nonstate actors -- including officials of their own political party, who have undertaken to protect party members from acts of violence and intimidation by the ruling party. The study further seeks to influence responses by all these actors.
Rape was used as a tool for political coercion during the election periods in 2000, 2002, 2005 and 2008. The political crisis had an impact on how cases of politically motivated rape were dealt with at multiple levels. In brief, the State failed in its duty to protect women. The perceived inviolability of the perpetrators, as a result of their perceived political affiliation, determines whether allegations of rape are reported, investigated, prosecuted, and adjudicated. The law as presently formulated is not sufficient to cover the total scope of rape as it occurs when used as a tool for political coercion.
► Rosalie Kumbirai Katsande, a Lecturer at the Centre, is Exploring the Potential of Laws and Procedures Governing Business Entities in Facilitating Women’s Entrepreneurial Development in the Horticultural Sector of Zimbabwe.
Inspiring this research is a passage in Peasants, Traders and Wives: Shona Women in the History of Zimbawe 1870 – 1939 (1996), in which Dr. Elizabeth Schmidt, Professor of History at Loyola University Maryland, writes:

When the Jesuit father A Hartmann visited the Shona Chief Chipanga in about 1891, he asked the chief how numerous the people where including women and children, the chief reportedly answered, 'women are not counted'. He then took a handful of dust from the ground and said, 'that is the woman. Hartman concluded that women were regarded as almost nonexistent.

In her own research project, Katsande explores women entrepreneurs in the horticulture sector of Mashonaland East Province of Zimbabwe. Her work interrogates the appropriateness for the development of business regimes by government authorities for women in rural areas. In an effort to determine the appropriateness of current such regimes, the study traces the economic history of Zimbabwe and shows how women’s economic initiatives have been marginalized by historical processes. Laws designed during colonial governance continue to inform and limit women’s entrepreneurial potential and development.
Historically, state officials discouraged Zimbabwean women from settling in the towns and at the mines. The officials opposed the growth of a permanent and potentially explosive African population in the urban areas, and encouraged women and children to subsidize male wages through agricultural production at rural homesteads. State officials expected rural-based women to bear the social costs of production -- caring for the sick, disabled, and retired workers -- while raising the next generation of labourers. Innovation by women was deeply affected by legislative and policy restrictions.
Against this backdrop, the study considers the current government’s people-centred development approach from an African feminist perspective, which, inter alia, focuses on empowering African women to improve their own lives.
The study reveals challenges to community income-generating projects initiated by the Zimbabwean Ministry of Women Affairs, Gender and Community Development. These are reported to have failed to address women’s economic needs; indeed, they present more of a burden, as they add work on already overworked women.
Women in the areas of study are running potentially viable horticultural ventures. The profitability of these ventures is dependent on agricultural support and training; however, this is not being received. Instead, women in these communities are presented with artificially constructed income-generating projects.

These are some of the impressive projects under way at the Centre. Perhaps of primary importance is the investigation of the realities of individual lives and how to link them into the international human rights agendas through national legal and policy frameworks.

How do you solve a problem like Zimbabwe?

We've blogged before about Zimbabwe's brutal rape camps and the dearth of international attention paid to these horrifying political crimes. That post was written nearly two years ago, when AIDS-Free World began its investigation of ZANU-PF's policy of systematic rape of political opposition. After an eighteen-month study, the final report, Electing To Rape: Sexual Terror in Mugabe's Zimbabwe, was released last December. It's an important and shocking read that calls to mind the rape camps of the former Yugoslavia.

So why not a similar international legal response to these brutal crimes? That's the question asked this week by AIDS-Free World's Stephen Lewis, the former UN Special Envoy for HIV/AIDS in Africa. Lewis's group has called for the International Criminal Court to investigate. Specifically, Lewis has promised to present a legal dossier to the Office of the Prosecutor next month in hope that they will pursue crimes against humanity proceedings, presumably against Robert Mugabe and the Joint Operations Committee that is responsible for state security in Zimbabwe. It's quite a bold bid to overcome the silence and impunity that have shrouded Mugabe and his ZANU-PF followers, and even as one who's often skeptical of imposing universalist norms from above, I couldn't help but cheer on this particular effort. (Lewis has also called on the Southern African Development Community and the African Union to take action against the perpetrators of these crimes, but given their consistent unwillingness to utter even a critical word against Mugabe, I can't imagine his hopes are high.)

Though the potential prosecution raises fascinating issues, from legal (command responsibility) to political (indicting a second sitting African head of state), this post focuses on the gender dimensions of such a move. At first glance, it seems all upside -- the possibility of of bringing greater gender balance to the docket and jurisprudence of the ICC, and demonstrating that gender-based violence will be taken as seriously as other crimes. But it's important not to forget that this dismantling of one hierarchy obscures another; namely, the elevation of "political" crimes perpetrated by organized actors over "opportunistic" crimes enabled by the breakdown of the rule of law. Case in point: Zimbabwe has shockingly high rates of child rape, with a single pediatric clinic in Harare seeing 30,000 sexually abused children over the past four years. Despite their prevalence, such crimes fall outside the scope of the ICC statute, providing an important reminder that a greater focus on international criminal law may relegate to the back seat the suffering of women and children from the increase in domestic violence and child abuse that often results from political conflict.

Enforcing Violence

Most of you are likely by now aware of President Obama's decision on Tuesday to send over 1,000 National Guards to the southwest border in order to assist local police in tracking down drug smugglers. While these soldiers will not arrest undocumented immigrants crossing the borders, their presence is likely to (indeed, intended to) increase such arrests by local law enforcement. I've posted before (here and here) about the myriad forms of violence suffered by those who attempt to cross the border. Without a coherent immigration policy that creates safe and legal migration routes for low and unskilled workers and those fleeing persecution, increased border enforcement will increase migrants' vulnerability to violence perpetrated by a variety of actors, not least the very drug smugglers against whom Obama is taking aim.
But it turns out that Obama's not alone in his approach; on Wednesday, South African special forces arrived at the border with Zimbabwe in the first phase of a long-term deployment of various units of the South African military to combat violent border gangs. Medecins Sans Frontieres reported earlier this month that as many as 300 Zimbabweans were arriving per day at just one border post in order to apply for asylum. Ironically, these Zimbabweans are eligible for a 90-day visa to South Africa, which has instituted a moratorium on deportations to Zimbabwe -- in other words, they have a legal route to enter and remain in South Africa. But in a Kafkaesque twist, many Zimbabweans cannot afford a passport and must therefore cross the border illegally. (The South African Department of Home Affairs has yet to create a promised special dispensation permit that would enable such migrants to cross the border legally and safely.) Their resultant vulnerability has enormous costs; MSF reports that at least 20 women, children, and men are raped per month at that same border crossing. In a country in which one in seven adults is living with HIV, rape can have consequences far beyond the initial physical and emotional trauma. Again, increased border enforcement alone, in the absence of a legal route to entry for those seeking safety, is likely to increase migrants' vulnerability to the violence of the border. In other words, without a sensible immigration policy, the border will enforce rather than control violence.

In passing: Zimbabwe human rights defender Keith Goddard, 1960-2009

Keith Goddard (left), a human rights defender of tremendous courage and tenacity, died this weekend after a short illness.
The Director of Gays and Lesbians of Zimbabwe (GALZ), Goddard helped transform what had been primarily a social organization with a mostly white and middle-class membership into a political group whose membership both reflected and served the broader LGBTI community in Zimbabwe. (photo credit)
GALZ made international headlines in 1995 when President Robert Mugabe hurled vicious verbal attacks after the group applied to participate in the Zimbabwe International Book Fair. The group was ultimately prohibited from participating in the book fair, whose theme that year was “Justice and Human Rights.”
Ironically, the president's vitriolic statements gave GALZ the coverage it had been denied for over a year when its access to media was banned by the state-controlled newspapers and radio, as the President's remarks were covered extensively. People all across the country learned of GALZ, and, as noted by the organization in its account of the Book Fair Saga, "the membership of GALZ, especially amongst younger black lesbian and gay people, increased dramatically."
The membership of GALZ also grew to include straight allies of the movement, as seen in the remarkable story of prominent lesbian activist and GALZ organizer Tsitsi Tiripano, profiled here by Ms. Magazine in its "Uppity Women" series.

International law "provided the backbone to much of the work of GALZ," Keith Goddard wrote here:

Although their contents have not been translated into local domestic law, these international instruments give GALZ the moral authority to formulate policies on lgbt issues which are in line with modern international thinking.

In its statement announcing Goddard's passing, GALZ wrote:

Although of small stature he had a voice that commanded authority and silence any room he was in. Keith dedicated his life to the advancement of LGBT rights, human rights and his passion for music. The struggle for LGBT rights is a difficult struggle and in many instances in the history of GALZ Keith stood gallantly in the frontline. He dared where most men would not go.

Keith Goddard was arrested multiple times and beaten by police. He endured smear campaigns and harassment. But he persisted, lived to see some changes, and worked hard to secure more. An August 2009 article in the Guardian, headlined "Gay rights campaigners in Zimbabwe see chance to push for equality," describes the push to include a prohibition of discrimination based on sexual orientation in the new Zimbabwe constitution. "I think we've got a 50:50 chance," Goddard is quoted as saying. "We live in hope."

ABA to honor Zimbabwean lawyers

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

When Is Prosecution Persecution?

This, of course, is a central question in refugee and asylum law -- when does prosecution by a state cross the line from legitimate investigation into persecution, thus rendering the accused eligible for refugee status? We've recently seen an abundance of examples of this phenomenon, which illustrates the complex relationship between refugee law and global politics.

In some cases, the prosecuting state's motives are obviously illegitimate, seeking to punish dissidents for engaging in activities protected by international law.

So, we saw yesterday, in Burma, Aung San Suu Kyi was arrested and charged with "violating the rules of her house arrest" after an American man entered her home; under Burmese law, she could face five years in prison for this infraction. Not only is the underlying house arrest an attempt to silence a political critic, but the charges seek to punish Suu Kyi for exercising her right to freedom of association.

The same day, in Zimbabwe, human rights lawyer Alec Muchadehama was arrested outside Harare's Magistrates Court for "obstruction of justice"; his "crime" was speaking to the court clerk in an attempt to free three political prisoners.

These examples illustrate one end of the prosecution/ persecution spectrum, with obviously politically motivated charges in countries that lack any pretense of the rule of law, and make for relatively straightforward refugee claims.

Determining the existence of persecutory prosecution can be significantly more complicated, however, as illustrated by Monday's spat between Bolivia and Peru. Bolivian President Evo Morales, who seeks extradition of three former government officials accused of genocide, was angered by Peru's grant of asylum to one of these officials (and review of asylum claims by the other two). Morales has charged these and other officials, as well as the former Bolivian president, with genocide for their role in soldiers' killing of 63 anti-government demonstrators in 2003. The officials argue that the charges are a "political witch hunt" and that they can't get a fair hearing. Presumably on similar grounds, the former president, Gonzalo Sanchez de Lozada, was granted asylum in the United States in 2007. So are these criminal charges persecution? The other side would argue that the former government's security forces violently gunned down indigenous protesters demanding political representation, and should be held accountable for their crimes.

A similarly complex story unfolded in England last month, when the High Court held that four accused génocidaires from Rwandans could not be extradited because they would not receive a fair trial in Rwanda. The decision relies on extensive evidence, including expert testimony from Filip Reyntjens and Philippe Sands on behalf of the accused and William Schabas on behalf of the Rwandan government, to analyze whether the accused would face an independent and impartial tribunal and whether there would be adequate protection for their witnesses in Rwanda. Is the lack of procedural safeguards in Rwandan courts so dire that trials before them would constitute persecution? This was not, of course the precise question before the court, which was, rather, deciding whether or not to extradite. But its opinion amply illustrates the heavily politically contested nature of this point. In such situations, where assertions of fact are diametrically opposed and an offer of asylum can itself be viewed as a politically aggressive act, is there any hope that refugee determination processes can remain apolitical, impartial, and fair?

On December 31

On this day in ...

... 1963 (45 years ago today), a 10-year-old entity (left) formed by British initiative, the Central African Federation, officially dissolved into 3 units. What had been Northern Rhodesia become independent Malawi; Nyasaland, Zambia. The remaining territory, "Southern Rhodesia[,] refused to hand political control over to its African majority"; it would not become independent Zimbabwe until 1980.

... 1930, Odetta Holmes was born in Birmingham, Alabama. At age 10, not long after she and her family had moved to Los Angeles, the girl's talent for singing was discovered. At age 19 she performed in the chorus of Finian's Rainbow, and while supporting herself through housecleaning, she pursued a career as an entertainer. Eventually Odetta would be known as the mother of folk music and a queen of the blues. She also was active in the U.S. civil rights movement, marching with the Rev. Dr. Martin Luther King, Jr. at Selma, Alabama, and singing at the 1963 March on Washington (above right) where King gave his renowned "I Have a Dream" speech (prior posts here and here). Odetta passed away at the beginning of this month, a few weeks shy of her 78th birthday. In the video clip below, Odetta delivers a powerful rendition of an old prison work song, Water Boy.

Let A Thousand TRCs Bloom

We blogged here about Liberia's Truth and Reconciliation Commission, unusual in that testimony will be taken from Liberian refugees here in the United States for a commission that sits in Africa. South Africa's Truth and Reconciliation Commission was an early incarnation of this transitional justice mechanism, and is often viewed as the model to emulate, though its failure to punish is not without its detractors amongst the families of victims of the apartheid regime. And Sierra Leone's Truth and Reconciliation Commission, complementary to the Special Court for Sierra Leone, has been criticized in some quarters for relying on confession and truth-telling where they're not culturally appropriate. Now, two other African countries are getting in on the action.

Last month, Kenya's parliament approved a Truth, Justice, and Reconciliation Commission to investigate human rights abuses since 1963. While the time frame appears surprisingly long, that's the point -- to investigate "unresolved historical injustices such as distribution of land and state resources, and alleged human rights violations by previous governments and political leaders" that may have been the root cause of the deadly violence resulting from December 2007's disputed elections. The TJRC is hybrid in format, with six Kenyan commissioners and three foreign commissioners drawn from the Panel of African Eminent Personalities, a group of thirteen prominent Africans who helped to negotiate the peace deal in Kenya. It will be complementary to prosecutions of perpetrators of human rights abuses during the post-election violence, either by an international tribunal to be formed in Kenya in the next two months or by the International Criminal Court. Those found guilty of genocide and other human rights violations will not be eligible for amnesty. While the impetus for this denial of amnesty is understandable, particularly in the wake of South Africa's TRC, it may be difficult to prod human rights violators to testify before Kenya's TJRC without the carrot of amnesty. Moreover, critics are already suspicious that politicians seeking to avoid punishment will find an amnesty loophole via the TJRC.

This week, opposition leader Morgan Tsvangirai echoed a call made in September by church leaders for a truth and reconciliation commission in Zimbabwe. Tsvangirai believes that a Zimbabwean TRC should examine atrocities in the country dating back to the massacres of ethnic minorities in the 1980s. Church leaders, on the other hand, said that decisions regarding the temporal scope of the TRC should be made by ordinary people, not political parties -- a good rule of thumb for all transitional justice mechanisms. The church leaders found it necessary to air the truth and implement some form of justice in order to heal the nation, and view the South African TRC as their model.
After an initial blossoming of TRCs in Latin America to address the political violence of the 1980s, it's interesting to see this transitional justice mechanism spread throughout Africa. While the South African TRC seemed generally well-tailored to that nation given its religious and legal history and composition, it's not entirely clear that this form of truth-telling will fit all cultural environments. It's surely positive to see the requests for TRCs coming from within these societies, but I query whether there's a more locally grounded moral authority that might be used to account for the violence in Kenya, Zimbabwe, and beyond.

Humans charge rhino

The 1st lesson of Journalism 101, on news judgment, goes something like this: "'Dog bites man' is not news. 'Man bites dog,' now that's news!"
The headline above is in much the same vein.
Popular culture paints the image of the madbull rhino charging hapless humans. But these days the real threat operates in reverse.
In Zimbabwe, poaching of the rhino, an endangered species, has spiked. There've been 70 rhino-poaching deaths in Zimbabwe since 2000, compared with zero the prior 7 years. Not surprisingly, the spike's paralleled a "breakdown" in enforcement of laws forbidding poaching, a lucrative practice on account of the profit possible in illegal smuggling of the ivory of rhino tusks. Exemplifying this breakdown:

the recent release of a gang of four Zimbabwean rhino poachers who admitted to killing 18 rhinos in five different areas of central Zimbabwe, including a semi-tame group of black rhinos slaughtered in their pens at Imire Safari Ranch.

One of several NGOs at work on this issue is the World Wildlife Federation-International. In the words of Dr. Susan Lieberman (below), Director of WWF's Species Programme:

The lack of enforcement and increased poaching pressure in Zimbabwe now threaten to reverse the excellent trends in rhino populations of recent years. WWF calls on the authorities in Zimbabwe to take much stronger action against the internal poaching networks or the recent progress made in rhino conservation in Zimbabwe will be lost.

Full story here.

On September 12

On this day in ...

... 1992, Dr. Mae Carol Jemison became the 1st African-American woman in outer space, as a member of a NASA mission aboard the shuttle Endeavour. Born in Alabama, raised in Chicago, and educated at Stanford and Cornell universities, Jemison (right) earned her M.D. degree in 1981. She practiced medicine in Los Angeles and worked for the Peace Corps in Africa before beginning to train as an astronaut in 1987. Jemison left NASA a year after her shuttle mission, started a consulting group, and wrote a young readers' book, Find Where the Wind Goes: Moments from My Life (2001).

... 1974, a military junta led by Lt. Col. Mengistu Haile Mariam and known as the Derg, or Committee, seized control of Ethiopia from 82-year-old Emperor Haile Selassie I. Scores of political opponents were killed in the aftermath; the former emperor himself was strangled 11 months after the coup. The authoritarian regime lasted until May 1991, when Mengistu (left) "fled the country for asylum in Zimbabwe." Similar to the domestic judgment levied last month against Chad's former dictator (IntLawGrrls' post here), this past May a court in Ethiopia convicted Mengistu in absentia of genocide and sentenced him to death. It's a judgment that Mengistu might one day have to face, should the current crisis in his country of asylum, Zimbabwe, end with the departure of its longtime leader, Robert Mugabe.

Why Rape in Zimbabwe Isn't Sexy

While I was pleased to learn of AIDS-Free World's investigation of political rape in Zimbabwe, it struck me that ZANU-PF government militia have been perpetrating these horrifying assaults for nearly ten years with little notice from the rest of the world. While the atrocities in Darfur and human rights violations in Tibet dominate headlines and inspire the creation of NGOs focused solely on ending those particular humanitarian crises, international coalitions of Olympian athletes (see prior post), You Tube-based political movements, hip t-shirts, and even political video games, a Google search on "rape in Zimbabwe" gives rise to no such international outpouring. Instead, one reads a few quiet, tragic stories from rape survivors and sex slaves, reported in papers year after year, and human rights reports decrying the South African government's silence in the face of countless rape stories from Zimbabwean asylum seekers. In the words of one survivor:

We are living through a plague of brutal violence directed at women and girls. When talking about rape in a conflict situation, it is not like a wound on your hand or face. Our bleeding is hidden under our panties.

Where are Mia Farrow and George Clooney? Or even Madonna, whose adopted child hails from Malawi, not all that far from Zimbabwe? Celebrity roasting aside, why is it that some human rights crises capture the popular imagination, while others remain all but invisible? Is it that, in Zimbabwe, "the most vulnerable, the poorest, uneducated, unemployed rural women" are raped? Surely the same can be said for those suffering human rights abuses in Darfur. Is it the decade-long duration of the conflict in Zimbabwe, as opposed to the relatively recent eruption of violence in Darfur? Hard to single out this factor when the conflict in Tibet has been simmering for over five decades. Is it that political rape still gets less attention than other types of physical assault? Even CNN covers rape in Darfur, so that can't be dispositive either. And while the sheer numbers of rape victims may be greater in Darfur than in Zimbabwe, the same surely can't be said of Tibet. Perhaps Zimbabweans need a charismatic leader like the Dalai Lama? The label of genocide? More to the point, as Mariam Bibi Jooma of the South African Institute for Security Studies notes, international celebrity may not, in the end, make much of an impact:

despite the “Save Darfur” campaign gaining mass support on a scale perhaps rivalled only by the former anti-apartheid movement, very little progress has actually been achieved on either the political or military fronts in Darfur.

Perhaps the ICC's indictment of Al-Bashir will change this (see prior posts here, here, here, and here.) But even if Jooma is right that celebrity causes aren't all they're cracked up to be, it would be refreshing to see increased attention focused on Zimbabwe's brutal rape camps.

'Nuff said

(Occasional item taking context-optional note of thought-provoking quotes)

Mugabe proved he still had his despotic chops by recently winning an election that he lost.

-- Daily Show commentator Lewis Black, on why Robert Mugabe (left) of Zimbabwe won the gold medal in Black's "Evil Dictator Awards" contest. (Latest news on Zimbabwe's election crisis here.) Sudan's Omar al-Bashir took the silver medal, and the bronze medal went to former Bosnian Serb leader Radovan Karadžić.
Video of the award "ceremony" here.

On July 10

On this day in ...

... 1999, a Ceasefire Agreement respecting the armed conflict in the Democratic Republic of the Congo (map at left) was signed by that country as well as Namibia, Rwanda, Uganda, and Zimbabwe. Witnessing the signing were delegates from Zambia, the Organization for African Unity, the United Nations, and the Southern African Development Community. The Movement for the Liberation of the Congo signed the agreement on August 1; the Congolese Rally for Democracy on August 31.

... 1919, President Woodrow Wilson personally delivered to the U.S. Senate the Treaty of Versailles, which ended World War I and established the League of Nations. It was the 1st such personal delivery since the founding of the Republic in 1789. His presentation did not go well:

[H]e strained to read from typewritten notes on small index cards. Perhaps suffering from the effects of a small stroke, Wilson inadvertently omitted words as he proceeded. Realizing this, he stopped and repeated the garbled sentence, only to drop more words and repeat more sentences. Only near the end of his forty-minute address did Wilson approach eloquence. Setting aside his cards, the president turned to the Republican side of the chamber, where members sat in sullen hostility. He declared that treaty approval was their only option. "The stage is set, the destiny disclosed. It has come about by no plan of our conceiving, but by the hand of God. We cannot turn back. The light streams on the path ahead, and nowhere else." His conclusion evoked only scattered applause.

In November 1919 and again in March 1920, the Senate rejected the treaty. (credit for photo of "Big 4" -- from right, Wilson, France's Georges Clemenceau, Italy's Vittorio Orlando, and Britain's David Lloyd George -- during negotiation of treaty in Paris)

Opening elections, closing ranks

We fear aliens and disenfranchise nuns.

Thus did Stanford Law Professor Pamela S. Karlan (right) sum up her criticism of laws that block the right to vote.
Karlan took part in a superb panel at this weekend's annual convention of the American Constitution Society. Though founded just 7 years ago, ACS has created a national forum for liberal lawyers and law students. (That's due in no small part to the hard work of folks like Executive Director Lisa Brown (below right); director Dawn Johnsen, an IntLawGrrls guest alumna; and director Patricia Wald (left), formerly Chief Judge of the U.S. Court of Appeals for the District of Columbia and a Judge of the International Criminal Tribunal for the former Yugoslavia, and the honoree at ACS' end-of-meeting banquet.) ACS thus provides a counterweight to the Federalist Society, which in the last quarter-century has succeeded in pushing a conservative agenda to the frontline of legal developments in the United States.
ACS' mission was well served by the voting panel. Ron Klain, who led Al Gore's recount bid in 2000, urged every one of the hundreds of lawyers and law students in the audience to do his or her part by volunteering as an election protection worker or election judge for November's general election. Joe Trippi, a presidential campaign aide to Howard Dean in 2004 and John Edwards in 2008, added a global perspective by urging all to go to the Friends of Zimbabwe website and donate toward election protection in that troubled country, which faces a presidential runoff on June 27.
In a word, inspiring.
Of some concern, though, were comments at a Friday morning panel entitled "What's At Stake: Law and Justice Policies in a New Administration." There participants shrank from a suggestion by the moderator, Harvard Law Dean Elena Kagan (below left), that criminal investigation might receive even fleeting contemplation by the new President, who will have the task of making an accounting of official abuse post-9/11.
Now, no one would have expected panelists to sound a clarion call for prosecution. Nor is such a call appropriate at this time. It is likely that resort to the criminal system will prove ill-advised and/or impossible. In any event, consideration of the question must await the new administration's analysis of documents, secret as well as public, in order to find out what in fact happened these last 7 years. By that same reasoning, however, it seems equally premature to close ranks against any single avenue for accountability even before the facts are known.

Deadly Prisons

Barry Bearak, the co-bureau chief of the New York Times’s Johannesburg bureau, recently recounted his brief but harrowing imprisonment in Zimbabwe (read his account here). Bearak, who was arrested for ‘committing journalism’ on April 3, 2008, spent four nights in jail before being released and fleeing to Johannesburg.
Bearak’s bleak description of prison conditions in Zimbabwe undoubtedly resonates with those who advocate on behalf of prisoners throughout Africa. Human Rights Watch, among others, has attempted to expose the horrifying prison conditions in a number of African countries (Cameroon, Ethiopia, Kenya, Malawi, Mali, Mozambique, Namibia, Nigeria, Rwanda, South Africa, Uganda, and Zambia). The Legal Assistance Center (LAC), an active and well-respected human rights organization in Namibia (map at left), recently conducted a fact-finding investigation concerning the care and treatment of HIV-positive inmates in the national prison system. The fact-finding delegation, of which I was a part -- along with eight students from the University of Wyoming College of Law -- discovered that the prison conditions that Bearak describes were quite similar to the conditions in Namibia. Worse yet, HIV-positive inmates often lacked access to life-saving treatment and basic medical care. (Look for the complete report on LAC’s website in late summer). A number of factors contribute to the exceptionally high HIV transmission rates within Namibia’s prison system, including consensual, unprotected anal sex and rape. As in most prisons in the U.S., prison authorities refuse to distribute condoms despite their potential to prevent HIV transmission in many cases. Sadly, as Bearak experienced in Zimbabwe, prison conditions are often abysmal; for HIV-positive inmates the conditions may, indeed, be deadly.

The Limits of Refugee Law

In my Refugee Law and Policy class this week, we discussed the plight of those who are forcibly displaced from their homes but do not meet the 1951 UN Refugee Convention's definition of a refugee. These include people fleeing generalized violence and civil strife who cannot show that they have been individually targeted for persecution, as well as people who do not have the resources or ability to cross an international border. The former may receive some type of temporary protection while their home country remains dangerous, and the latter, known as internally displaced persons, are protected by vague provisions of international human rights law and the non-binding Guiding Principles on Internal Displacement. While the Guiding Principles have gained some traction in national laws and policies, in both circumstances, the fate of these individuals is left in the hands of sovereigns with little recourse to enforceable international legal standards or protection.

In a generous mood, a developed country might offer temporary protection to say, Zimbabweans fleeing the widespread human rights abuses committed under Robert Mugabe's regime (posted on here) or to Iraqis fleeing the well-documented dangers of their home country. Despite little improvement in either situation, two developed countries have change their mind about protecting individuals fleeing Iraq and Zimbabwe who do not fall squarely within the UN Refugee Convention definition. In the UK this week, some 500 Zimbabweans whose asylum applications were denied were told to pack their bags or face expulsion. This follows last year's overturning of an earlier ban on deportation of Zimbabweans, with a judge finding that only those linked to opposition political parties were likely to face persecution. And it turns out that Sweden has been deporting Iraqis from the southern and central regions of that country who cannot prove that they will be individually persecuted, based on an immigration court's ruling that there "is no armed conflict in Iraq, according to the definition from Swedish legislation." The United Nations High Commissioner for Refugees this week criticized Sweden's return policy, noting that "[t]he level of human rights violations and violence along sectarian and intra-sectarian lines remain high in both central and southern Iraq", so individuals from those areas should be considered refugees.

Once returned, these individuals are likely to join the already overwhelming number of internally displaced in their home country -- at last count, 2.25 million in Iraq and 570,000 in Zimbabwe. They face the sword of sovereignty at every turn -- the sovereign authority of nations over both entry across their borders and the people and resources within their territory -- but little in the way of protection from international law or the international community. While the movement towards viewing sovereignty as responsibility may address some concerns about the treatment of the internally displaced, the notion of humanitarian intervention implicates real concerns about the power of weak states to defend their territorial integrity and political independence. And stronger states will not easily relinquish the power to control their borders. So how can we forge a solution for these individuals whose lives are at risk? A true dilemma for the humanitarians among us, and one that displays the limits of refugee law and international human rights law more generally.