Go On! International Conflict & Negotiation Colloquium at Stanford

Anyone in the Bay Area should check out the Stanford Center on International Conflict & Negotiation's International Conflict Resolution Colloquium. The Colloquium is being convened by Professors Allen Weiner (Law--right); David Holloway (Political Science); and Lee Ross (Psychology).
All Colloquium sessions meet from 4:30 p.m. to 5:45 p.m. on Thursday in Room 90 of the Law School.

The schedule is below:

► January 6: Allen Weiner (above right)
Senior Lecturer in Law, Stanford Law School
Barriers to Conflict Resolution: The Israeli-Palestinian Conflict

► January 13: Richard Goldstone (right)
Former South African Constitutional Court Justice, Visiting Professor, Stanford Law School
South Africa’s Transition to Democracy: The Role of the Law

► January 20: James Fishkin (right)
Director, Center for Deliberative Democracy,
Janet M. Peck Chair in International Communication, Stanford University Deliberative Democracy and Conflict Resolution

► January 27: Christopher R. Hill (left)
Dean, Josef Korbel School of International Studies, University of Denver,
former United States Ambassador to Iraq
The Iraqi Conflicts

► February 3: Beth Van Schaack (right)
Associate Professor, Santa Clara Law School
Negotiating at the Intersection of Power and Law:
The International Criminal Court and the Definition of Aggression

► February 10: Omar Dajani (left)
Professor of Law, McGeorge School of Law, University of the Pacific
Shadow or Shade – The Roles of International Law in Palestinian-Israeli Peace Talks

► February 17: James T. Campbell (right)
Edgar E. Robinson Professor in United States History
Settling Accounts? History, Narrative, and Historical Reconciliation

► February 24: Avishai Margalit (left)
George F. Kennan Professor in the School of Historical Studies at the Institute for Advanced Study
Sectarianism

► March 3: Christopher Greenwood (right)
Judge, International Court of Justice
International Conflict Resolution and the International Court of Justice

Hope to see you there!

Developments in Kenya: Truth Commission Process Back On

On the eve of the resignation of our colleague Ron Slye from the Kenyan Truth, Justice & Reconciliation Commission (TJRC) (see prior posts here, here, and here), the former Chair of the Commission, Ambassador Bethuel Kiplagat (left), has finally stepped down from the Commission to face allegations of potential conflicts of interest with the work of the TJRC. In addition, the Kenyan Chief Justice has finally established a five-person special tribunal in order to investigate these issues.

In light of these two developments, Professor Slye has withdrawn his resignation. In a statement, released today, he wrote:

The decision of the Chairman to step aside has restored some of my faith in the ability of the Commission to succeed. It is no means certain to me that it will. The lack of financial and other support to which I referred in my earlier statement still exists. I do believe, however, that with the Chairman’s decision to step aside, there is the possibility that the Government of Kenya and others will step up and provide the Commission with much of the support that it needs.

It is for these reasons that I announce that I am withdrawing my intention to resign from the Commission. In so doing I do not mean to imply that the Commission has overcome all of the hurdles facing it. I do believe, however, that with the hard work and dedication of the remaining Commissioners and staff, the Commission has a fighting chance to fulfill the important mandate entrusted to it by the people of Kenya.

As lingering concerns, Professor Slye noted that the Kenyan government has still not provided the Commission with the resources it needs to accomplish its mandate. As such, he urged the government as well as the donor community and civil society to support the work of the TJRC, because

For it is only by facing squarely the misdeeds of the past that a future of respect for the rights of all Kenyans can be ensured.

Well said.

Breaking News: Ron Slye Resigns from Kenyan Truth Commission

Our friend and colleague Ron Slye (above) has just resigned from the Kenyan Truth, Justice & Reconciliation Commission effective November 1. In our prior coverage of the Commission (here and here), we noted the emergence of a controversy over the President of the Commission, who is implicated in events within the purview of the Commission but has refused to step aside. Eight Commissioners of the TJRC petitioned the Chief Justice to constitute a Tribunal to assess the allegations raised against Bethuel Kiplagat. Ron cited the lack of support from the government and the unresolved Kiplagat issue as grounds for his resignation:

I have lost my faith in the Commission’s ability to fulfill even a small part of its mandate. ... That loss of faith comes not from the work of the staff of the Commission – highly dedicated individuals who have worked under extremely trying circumstances to move the work of the Commission forward – but from the clear lack of support from the Government of Kenya and from the still-unresolved allegations against the Chairman of the Commission. ...

I have been willing to remain with the Commission so long as I felt that I could make a meaningful contribution to the work of the Commission and, more importantly, the general project of furthering truth, justice, and reconciliation in Kenya. I no longer feel that my continued stay at the Commission contributes effectively to either. ...

I fear that under the leadership of a person that has already prejudged the issue of Government involvement, the Commission will have a difficult time discovering the truth of this and the many other human rights violations that were allegedly committed either by the Government or with Government support, knowledge, or complicity.

Ron, who is a Professor of Law at the Seattle University School of Law and an Honorary Professor of the University of the Witwatersrand, is the second commissioner to leave the truth body after Betty Murungi (right) resigned in April.

A spokesperson indicated that the work of the TJRC would continue.

Bloody Sunday – Setting the Truth Free

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

After decades of legal and political struggle to vindicate the innocence of thirteen persons killed during a civil rights protest in Derry on January 30 1972, known as Bloody Sunday, the report by the Hon Lord Saville of Newdigate was released last week to their families and a watchful local and global community.
The Report of the The Bloody Sunday Inquiry spans 10 volumes. As previously posted on IntLawGrrls, it is unequivocal that the deaths were “unjustified and unjustifiable” and that all those shot were innocent civilians who had given no cause for the use of force again them by members of the British paratroop regiment.
The symbolism of the Report’s delivery last Tuesday was deeply significant.
A packed house in the British House of Parliament in London and the crowd of which I was a part, at Guildhall Square in Derry (above left) -- both at centre stage -- waited and watched. (photo credit)
A newly elected and conservative British Prime Minister, David Cameron (below right), in a speech before the House of Commons, gave no political space for dissension. (photo credit) He confirmed that the army had fired the first shots; that no warnings were given before the soldiers opened fire; that none of the casualties were posing a threat; that soldiers lied about their actions; and that on behalf of the government and the country he was “deeply sorry”.
The Saville Inquiry was first commissioned by Labour Prime Minister Tony Blair in 1998 as part of the then-embryonic Northern Ireland peace process – a confidence-building measure aimed largely at the nationalist community, whose faith in the rule of law and the neutrality of the state had been seriously undermined by the events of that day, and the subsequent and much derided inquiry by Lord Widgery which had exonerated the soldiers and the state of responsibility.
The 12-year length of the Saville Inquiry proceedings was testimony to the complexity of the terrain it traversed, as well as to the continual obstacles placed in the way of proceeding by Britain's Ministry of Defence.
The Inquiry's outcome was unexpected for its clarity, for its directness, and for the starkness of its findings. It also tenaciously confirms the importance of redeeming and affirming the truth of contentious actions by the state.
The Report is received in the context of an ongoing political transition in a post-conflict society. It immediately raises the question of what comes next?
An obvious question is whether the prosecution of soldiers for offences of murder or manslaughter for their actions on the day by Northern Ireland’s Public Prosecution Service will be sought. Despite the clarity of Saville’s report, success is less certain in an adversarial setting. Fair trial concerns for soldiers, the admissibility of hearsay evidence, the passage of time, as well as undertakings given by the Attorney-General in 1999 that witnesses who provided evidence to the inquiry would be protected, all pose prosecutorial challenges. It seems more likely that prosecution of witnesses (specifically soldiers) for perjury would be successful given the depth and scope of evidence in the report itself. The families of the dead and the wounded have stated that they will take some time to read and consider the report before making calls for further specific legal steps.
But, in a wider context, the report has significant precedential importance for transitional societies.
It demonstrates the capacity of determined victims to successfully challenge and force the state to account for its actions in violating human rights norms. In this, it has given great impetus to other families and communities who experienced human rights violations during the same conflict (including further incidents involving the same paratroop regiment). While the Prime Minister may have fervently hoped that Saville closes the circle of inquiry – it may well be that it has exploded the calls to deal fully with the “past” of the Northern Ireland conflict.
Nonetheless, it is an important vindication of the state – particularly for the democratic state that has engaged in serious human rights violations – as the Report breathes life into the capacity of the rule of law to respond adequately and meaningfully to harms experienced by its citizens.
This was deeply evident last Tuesday on the streets of Derry – as a community that has been largely alienated from the state clapped and cheered a British Prime Minister acknowledging the faults of the state and seeking forgiveness.
In this, the Report also underpins the symbolic and communicative function of law – in its capacity to mend and offer individuals the means to heal deep harms and to bring communities “in” rather than to leave them out. Lord Saville's Report is both symbolically and practically important – for Northern Ireland and other conflicted societies addressing the past.
The debate on “dealing with the past” in Northern Ireland has not likely been closed by this important report. Rather, it opens up the possibility of deeper and more sustained engagement as the transition goes forward.

Britain apologizes

Prime Minister David Cameron today stood in Parliament and apologized for military actions on January 30, 1972, in Derry, the 2d largest city in Northern Ireland. As we've posted, 14 civil rights marchers died from shootings on that Bloody Sunday, and an initial inquiry exonerated British troops. Cameron's statement marks today's release of the report of an inquiry commission headed by Lord Mark Saville, a Justice of the Supreme Court of the United Kingdom. The Saville Commission found the killings were, "both unjustified and unjustifiable," to use Prime Minister Cameron's words today in the House of Commons. Here, courtesy of the BBC, is the full transcript of Cameron's remarks:

The Secretary of State for Northern Ireland is publishing the report of the Saville inquiry -- the tribunal set up by the previous government to investigate the tragic events of 30 January 1972, a day more commonly known as Bloody Sunday.
We have acted in good faith by publishing the tribunal's findings as soon as possible after the general election.
Mr Speaker, I am deeply patriotic. I never want to believe anything bad about our country. I never want to call into question the behaviour of our soldiers and our army, who I believe to be the finest in the world.
And I have seen for myself the very difficult and dangerous circumstances in which we ask our soldiers to serve.
But the conclusions of this report are absolutely clear. There is no doubt, there is nothing equivocal, there are no ambiguities. What happened on Bloody Sunday was both unjustified and unjustifiable. It was wrong.
Lord Saville concludes that the soldiers of the support company who went into the Bogside did so as a result of an order which should not have been given by their commander.
He finds that, on balance, the first shot in the vicinity of the march was fired by the British Army.
He finds that none of the casualties shot by the soldiers of support company was armed with a firearm.
He finds that there was some firing by Republican paramilitaries but none of this firing provided any justification for the shooting of civilian casualties.
And he finds that, in no case, was any warning given by soldiers before opening fire.
He also finds that the support company reacted by losing their self-control, forgetting or ignoring their instructions and training and with a serious and widespread loss of fire discipline.
He finds that despite the contrary evidence given by the soldiers, none of them fired in response to attacks or threatened attacks by nail or petrol bombers.
And he finds that many of the soldiers -- and I quote knowingly -- put forward false accounts to seek to justify their firing.
Lord Saville says that some of those killed or injured were clearly fleeing or going to the assistance of others who were dying.
The report refers to one person who was shot while crawling away from the soldiers. Another was shot in all probability when he was lying mortally wounded on the ground.
The report refers to the father who was hit and injured by army gunfire after going to attend to his son.
For those looking for statements of innocence, Saville says that the immediate responsibility for the deaths and injuries on Bloody Sunday lies with those members of support company whose unjustifiable firing was the cause of those deaths and injuries. Crucially, that, and I quote, none of the casualties was posing a threat of causing death or serious injury or indeed was doing anything else that could, on any view, justified in shooting.
For those people who are looking for the report to use terms like murder and unlawful killing, I remind the House that these judgments are not matters for a tribunal or politicians to determine.
Mr Speaker, these are shocking conclusions to read and shocking words to have to say. But Mr Speaker, you do not defend the British Army by defending the indefensible.
We do not honour all those who have served with such distinction in keeping the peace and upholding the rule of law in Northern Ireland by hiding from the truth.
There is no point in trying to soften or equivocate what is in this report. It is clear from the tribunal's authoritative conclusions that the events of Bloody Sunday were in no way justified.
I know that some people wonder whether, nearly 40 years on from an event, a prime minister needs to issue an apology.
For someone of my generation, Bloody Sunday and the early 1970s are something we feel we have learnt about rather than lived through.
But what happened should never, ever have happened. The families of those who died should not have had to live with the pain and the hurt of that day and with a lifetime of loss. Some members of our armed forces acted wrongly. The government is ultimately responsible for the conduct of the armed forces and for that, on behalf of the government, indeed, on behalf of our country, I am deeply sorry.
Mr Speaker, just as this report is clear that the actions of that day were unjustifiable, so too is it clear in some of its other findings.
Those looking for premeditation, a plan, those even looking for a conspiracy involving senior politicians or senior members of the armed forces, they will not find it in this report.
Indeed, Lord Saville finds no evidence that the events of Bloody Sunday were premeditated, he concludes that the United Kingdom and Northern Ireland governments and the army neither tolerated nor encouraged the use of unjustified lethal force.
He makes no suggestion of a government cover up.
Mr Speaker, the report also specifically deals with the actions of key individuals in the army, in politics and beyond, including Major-General Ford, Brigadier McLellan, and Lieutenant Colonel Wilford.
In each case, the findings are clear. It does the same for Martin McGuinness. It specifically finds he was present and probably armed with a sub-machine gun but it concludes, and I quote, "we're sure that he did not engage in any activity that provided any of the soldiers with any justification for opening fire".
Mr Speaker, while in no way justifying the events of January 30th, 1972, we should acknowledge the background to the events of Bloody Sunday.
Since 1969, the security situation in Northern Ireland had been declining significantly.
Three days before Bloody Sunday, two RUC officers, one a Catholic, were shot by the IRA in Londonderry, the first police officers killed in the city during the Troubles.
A third of the City of Derry had become a no-go area for the RUC and the Army. And in the end, 1972 was to prove Northern Ireland's bloodiest year by far, with nearly 500 people killed.
And let us also remember, Bloody Sunday is not the defining story of the service the British Army gave in Northern Ireland from 1969-2007.
This was known as Operation Banner, the longest continuous operation in British military history, spanning 38 years and in which over 250,000 people served.
Our armed forces displayed enormous courage and professionalism in upholding democracy and the rule of law in Northern Ireland.
Acting in support of the police, they played a major part in setting the conditions that have made peaceful politics possible.
And over 1,000 members -- 1,000 members -- of the security forces lost their lives to that cause.
Without their work, the peace process would not have happened.
Of course, some mistakes were undoubtedly made, but lessons were also learned.
And once again, I put on record the immense debt of gratitude we all owe to those who served in Northern Ireland.
Mr Speaker, may I also thank the tribunal for its work and all those who displayed great courage in giving evidence.
I would also like to acknowledge the grief of the families of those killed.
They have pursued their long campaign over 38 years with great patience. Nothing can bring back those who were killed, but I hope, as one relative has put it, the truth coming out can help set people free.
John Major said he was open to a new inquiry, Tony Blair then set it up. This was accepted by the leader of the opposition. Of course, none of us anticipated that the Saville inquiry would take 12 years or cost almost £200m. Our views on that are well-documented.
It is right to pursue the truth with vigour and thoroughness, but let me reassure the House there will be no more open-ended and costly inquiries into the past.
Today is not about the controversies surrounding the process, it is about the substance, about what this report tells us.
Everyone should have the chance to examine its complete findings and that is why it is being published in full. Running to more than 5,000 pages, it is being published in 10 volumes.
Naturally, it will take all of us some time to digest the report's full findings and understand its implications. The House will have an opportunity for a full day's debate this autumn, and in the meantime the Secretaries of State in Northern Ireland for Defence will report back to me on all the issues which arise from it.
Mr Speaker, this report and the inquiry itself demonstrate how a state should hold itself to account and how we should be determined at all times, no matter how difficult, to judge ourselves against the highest standards.
Openness and frankness about the past, however painful, they do not make us weaker, they make us stronger.
That is one of the things that differentiates us from the terrorists. We should never forget that over 3,500 people from every community lost their lives in Northern Ireland, the overwhelming majority killed by terrorists.
There were many terrible atrocities. Politically-motivated violence was never justified, whichever side it came from. And it can never be justified by those criminal gangs that today want to draw Northern Ireland back to its bitter and bloody past.
No government I lead will ever put those who fight to defend democracy on an equal footing with those who contine to seek to destroy it.
But neither will we hide from the truth that confronts us today.
In the words of Lord Saville, what happened on Bloody Sunday strengthened the Provisional IRA, increased hostility towards the Army and exacerbated the violent conflict of the years that followed.
Bloody Sunday was a tragedy for the bereaved and the wounded and a catastrophe for the people of Northern Ireland.
Those are words we cannot and must not ignore. But I hope what this report can also do it is mark the moment where we come together in this House and in the communities we represent to acknowledge our shared history, even where it divides us.
And come together to close this painful chapter on Northern Ireland's troubled past.
That is not to say we should ever forget or dismiss the past, but we must also move on. Northern Ireland has been transformed over the last 20 years and all of us in Westminster and Stormont must continue that work of change, coming together with all the people of Northern Ireland to build a stable, peaceful, prosperous and shared future.
And it is with that determination that I commend this statement to the house.

For today, 'nuff said.

Ocampo's Investigation in Kenya Underway

As we've blogged before, the ICC Prosecutor has received the green light to launch a proprio motu investigation into the post-election violence in Kenya. He's in Kenya May 7-12 for this purpose. The ICC has asked the Radio Netherlands Worldwide to accompany Ocampo on his investigation. Their reporting can be found here.
Gitobu Imanyara, a member of Parliament, introduced another bill recently to establish a special tribunal to investigate the violence (right) with Kenyan and international judges. Two prior efforts to create such a tribunal have failed in the past. This time, the debate was scuttled when it was realized that just 19 of 222 members in the house were present, lending further proof to the conjecture that there is no political will for such a tribunal despite protestations to the contrary from political leaders, including President Mwai Kibaki and once opposition leader, now Prime Minister Raila Odinga.
In other Kenya news, Bethuel Kiplagat--the Chair of the Truth, Justice & Reconciliation Commission (left)--still refuses to step down, even through the rest of the commissioners have asked him to do so, at least temporarily, so that they can continue their work with the confidence of the public. The commissioners have also asked the Chief Justice to establish a special tribunal to investigate the allegations against Kiplagat to determine if he is qualified to serve on the Commission, but so far such a tribunal has not materialized. As we blogged before, it turned out that the Chair may be personally implicated in events that are to be the subject of the Commission's work, although he took an oath to the contrary. In a statement, Kiplagat has argued that if he were to step down, it would amount to his condoning human rights abuses, including abuses against him personally. He has described calls for his recusal "a media-based lynch mob." Donors have refused to support the Commission while Kiplagat remains Chair. Sigh.

Transitions not made in Sierra Leone

Those of us who teach in the areas of international criminal law or transitional justice know well the literature that holds Sierra Leone out as something of a success story. (map credit)
Commentators point to the Special Court, established to prosecute a handful of high-level defendants, and to the Truth and Reconciliation Commission that in 2004 both published a 5,000-page record of the 1990s civil war and recommended changes. Articles often make laudatory, albeit vague, references to post-conflict rehabilitation programs. Few, however, mention the record of non-implementation of truth commission recommendations, nor the fact that the country remains destitute.
A series running in the Los Angeles Times is correcting the latter omission. Today's "Forgotten Countries" installment discusses problems in sectors as varied and health care, employment, and politics. Here's an excerpt:

Sierra Leone is one of those nations where decades of foreign aid have failed to appreciably lift the fortunes of the people. The country is a charity case: 60% of its public spending comes from foreign governments and nonprofit organizations. Since 2002, it has received more than $1 billion in aid.
Yet it has the second-highest rate of infant mortality in the world, behind Angola; even Afghanistan ranks lower. The United Nations says 1 in 8 women die giving birth in Sierra Leone; the rate in the United States is 1 in 4,800. Life expectancy in Sierra Leone is 41 years; in Bangladesh it's 60.

Keep an eye out for the series' 2d installment (here, on drug trafficking in Guinea-Bissau).

Bosnia, ICTY & the limits of retributive justice

(My thanks to IntLawGrrls for this opportunity to guest post on the article I recently published in the Journal of International Criminal Justice)

The creation of the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda in 1993 and 1994, respectively, marked a new normative trend of using international criminal justice as a response to war crimes and human rights violations. Yet there is a dearth of empirical research on the extent to which criminal trials do in fact achieve their ascribed objectives.
My article, The Limits of Retributive Justice: Findings of an Empirical Study in Bosnia and Hercegovina, aims both to address this empirical gap in the transitional justice literature and to question whether the confidence and high expectations that such tribunals have generated among their supporters is justified.
Using the ICTY and Bosnia and Hercegovina as case studies, the article examines four particular claims made by the ICTY’s first President, Antonio Cassese. In his "Reflections on International Criminal Justice," 61 Modern Law Review 1, 6 (1998), he contended that criminal trials:
► individualize guilt;
► dissipate calls for revenge;
► establish a historical record; and
► facilitate reconciliation.
The article demonstrates that in the specific case of the ICTY and Bosnia, all except possibly the second of these claims are questionable – in particular, the third and the fourth. The claims are, moreover, unsupported by author’s empirical data. Addressing each of Cassese’s assertions from the least to the most problematic, the article advances two main arguments:
► The first is that while war crimes tribunals have a fundamental role to play in formerly war-torn societies, we should be more realistic about what they can accomplish. High expectations potentially generate deep disappointments, which in turn can undermine the actual achievements of these judicial bodies.
► The second argument is that post-conflict societies, including those in the former Yugoslavia, cannot rely on retributive justice alone to deal with the aftermath of large-scale atrocities. Transitional justice takes many forms and we should not over-rely on criminal trials as a means to achieve justice.
With particular reference to Bosnia, it is suggested that some form of truth and reconciliation commission should be set up to complement the work of the ICTY. Such a commission, in contrast to the ICTY, would be based in Bosnia itself, which would help to create a greater sense of local ownership and interest in the truth-finding process. Its immediacy, moreover, would mean that a truth and reconciliation commission was directly a part of people’s everyday lives, thus making it a potentially significant tool for helping to combat the problem of denial and competing truths -- a problem that remains a fundamental obstacle to reconciliation in Bosnia.
Ultimately, what this article seeks to demonstrate is the importance of questioning commonly made, yet untested, claims about war crimes tribunals, and hence the imperative of further empirical research in this area using different case studies.
The macro-achievements of tribunals like the ICTY -- for example, in terms of their jurisprudence and contribution to the development of international law -- are significant. Examining their successes and failures at the micro-level, however, through a focus on the actual impact they are having on the ground, is crucial for any comprehensive assessment of their work, and hence for a fuller appreciation of both the strengths and the limitations of retributive justice in complex post-conflict societies.

Guest Blogger: Pamela Yates

It's IntLawGrrls' great pleasure to welcome Pamela Yates (right) as today's guest blogger.
Pamela's a cofounder of Skylight Pictures, Inc., and the director of Skylight's most recent production: The Reckoning, a feature-length film on the International Criminal Court that's subject of IntLawGrrls posts posted here and here by Lucy Reed and yours truly.
Recipient of a 2008 Guggenheim Fellowship and a member of the Director’s Guild of America and the Writers Guild of America, Pamela has been involved in many film projects in addition to The Reckoning. Examples: producer, Loss of Innocence, winner of an Emmy; director, When the Mountains Tremble, winner of a Sundance award; Executive Producer, Witness to War, winner of an Academy Award; director, State of Fear (2005) (below left), which relied on findings of the Peruvian Truth and Reconciliation Commission to depict the counterterrorism campaign that lasted 2 decades in Peru; director, Presumed Guilty, a PBS special about public defenders in San Francisco; producer, director, and co-author, Cause for Murder, about the lives and deaths of 2 young Mexican lawyers; producer and director, Brotherhood of Hate, about violent white supremacy movements; and producer and director with Skylight colleague Peter Kinoy of Living Broke in Boom Times, a trilogy about poor peoples’ movements in America.
In addition to all these achievements, Pamela directed what is thought to be the first music video made in China. No More Disguises, featuring troubajor Ciu Jian, filmed in Tianamen Square at the dawn of the democracy movement, was named by Rolling Stone as one of the 10 best music videos of 1989 and had its U.S. premiere at the New York Film Festival’s opening night.
In her guest post below, Pamela reports on IJCentral, the online global social network on through which she and her colleagues continue to rally their audience 'round the cause of international justice.
Heartfelt welcome!

Holder's Special Prosecutor

Several major news outlets reported this week that Attorney General Eric J. Holder, Jr. is considering appointing a special prosecutor to investigate the interrogation practices employed during the Bush Administration -- a move that would be contrary, perhaps, to President Barack Obama's entreaty to look forward, not backwards. (See especially the fascinating portrait of Holder's dilemma by Newsweek, the source of the Holder photo above right, as well as the Washington Post's coverage). It has been speculated that the move is at least partially motivated by the results of the CIA Inspector General report on torture that may or may not be released earlier than the promised August 31st. One name that has been floated for the position of Special Prosecutor is Assistant U.S. Attorney John Durham from Connecticut (short bio here), who, at the behest of former Attorney General Michael B. Mukasey, is already investigating the destruction of CIA tapes that depicted waterboarding and other interrogation tactics.

Holder's volte face, if he follows through on it, would do much to bring the United States back into compliance with the 1984 U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment, which the U.S. joined in 1994. That treaty at Article 4(1) obliges state parties to penalize "all acts of torture":

Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.

In addition, pursuant to Article 5(1), each state party is to "take such measures as may be necessary to establish its jurisdiction" over such acts when committed

• in any territory under its jurisdiction (the territorial principle of jurisdiction); or
• when the alleged offender is a national (the nationality principle of jurisdiction).

Article 12 mandates that states make immediate inquiries into the facts where

there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction.

Article 13 requires that victims have an opportunity to raise claims of torture to competent authorities:

Each State Party shall ensure that any individual who alleges he has been subjected to torture in any territory under its jurisdiction has the right to complain to, and to have his case promptly and impartially examined by, its competent authorities. Steps shall be taken to ensure that the complainant and witnesses are protected against all ill-treatment or intimidation as a consequence of his complaint or any evidence given.

The obligations apply equally to the prohibition against cruel, inhuman and degrading treatment of punishent, a prohibition that is also set forth within the Torture Convention.
The United States implemented the Torture Convention in two ways: first, by enacting a penal statute (18 U.S.C. §2340) and second, by enacting a civil statute (28 U.S.C. §1350 note, the Torture Victim Protection Act). In addition, acts of torture and other forms of cruel treatment may be prosecuted as war crimes under 18 U.S.C. §2441. In addition to these international crimes, the Special Prosecutor could also bring garden variety criminal charges (battery) or recommend courts martial for members of the armed forces and others subject to military jurisdiction.

In terms of the international law charges:
► First: 18 U.S.C. §2340A authorizes prosecutions against U.S. nationals, but only for torture committed "outside the United States." Certainly places like Camp Delta at Guantánamo Bay and Bagram Air Base in Afghanistan are outside the territorial United States. The U.S. Supreme Court has twice ruled, however, that the U.S. Naval Base at Guantánamo is essentially within U.S. jurisdiction. (The first ruling in Rasul v. Bush (2004), extended statutory habeas rights to Guantánamo detainees. Once Congress amended the habeas statute, the Court in Boumediene v. Bush (2008), extended constitutional habeas rights to the same detainees on the recognition that the U.S. exercises "plenary control" over the naval base, even though de jure sovereignty still vests in Cuba. See here for prior blog posts on these rulings.) The question of whether detainees at Bagram Air Base, which number over 600, have habeas rights is currently the subject of litigation in Maqaleh v. Gates, 604 F. Supp. 2d 205 (D.D.C. 2009). For a discussion, see Kal Raustiala's excellent ASIL Insight. Bagram Air Base, located in an active theatre of war, exists pursuant to a lease similar to that governing GTMO, and the Obama Administration has resisted extending the Boumediene ruling to Afghanistan. This is complicated by the fact that in 2001, the USA Patriot Act of 2001 expanded the Special Maritime and Territorial Jurisdiction (SMTJ) of the United States to include the premises of United States military or other United States Government missions or entities in foreign States. So, bases outside the U.S. were no longer "outside the U.S." within the meaning of §2340. Detention centers not on bases might still have been. The expansion of the SMTJ had the unintended, it is claimed, effect of narrowing the reach of the §2340. This anomaly was corrected by the National Defense Authorization Act for Fiscal Year 2005 (NDAA05), which prospectively amended 18 U.S.C. §2340(3) to read as follows:

“‘United States’ means the several States of the United States, the District of Columbia, and the commonwealths, territories, and possessions of the United States.”

So when and where abuses took place will determine the applicability of §2340. Certain provisions of title 18 do apply to the SMTJ, such as assault (18 U.S.C. § 113), maiming (18 U.S.C. § 114), manslaughter (18 U.S.C. § 1112), and murder (18 U.S.C. § 1111).

► Second: As an alternative to the torture statute, war crimes charges could potentially be brought under 18 U.S.C. §2441, the War Crimes Act of 1996, which applies to war crimes committed by U.S. nationals "inside or outside the United States". That statute lists torture, cruel treatment, inhuman treatment, mutilation, maiming, serious bodily injury, rape, sexual assault, and sexual abuse as war crimes. As discussed here, however, Congress, with the Military Commissions Act of 2006, amended the War Crimes Act in subtle yet significant ways that made it more difficult to prosecute abusive practices that fall short of torture.

► Finally, although the Attorney General can frame the mandate of the Special Prosecutor as narrowly as he likes -- even restricting him/her to investigate certain departments, etc. -- the Special Prosecutor can follow any leads relevant to the original mandate. This could result in a more wide-ranging investigation, especially given expansive notions of complicity liability. As a result, the special prosecutor’s investigation could implicate the architects of the detainee policy, including the lawyers who gave advice to the Bush Administration. Actual prosecutions would test arguments made in governmental memos about which types of conduct and interrogation methods constitute unlawful torture and other forms of prohibited cruel treatment. This has the potential to bring U.S. law into line with established jurisprudence from the international war crimes tribunals and human rights institutions, which have determined that many acts perpetrated upon detainees at Guantanamo and elsewhere constitute torture.

Even apart from criminal prosecutions, a full-scale investigation could produce information that would achieve some of the aims of the truth commission concept floated earlier this year by some Democrats.

(IntLawGrrls' various posts on these issues of accountability may be found here, here, and here.)

Transitional justice & indigenous Canadians

(My thanks to IntLawGrrls for the opportunity to guest post on my new paper.)

In September 2007, the Canadian government began to make compensation payments to former students of Indian Residential Schools like that pictured at left. By July 2008, the government had received 94,085 applications for the Common Experience Payment and issued payments to 66,232 survivors. Exactly a year ago today, the Canadian government apologized for its Residential Schools policy. (video clip; prior IntLawGrrls post) In May 2009, three commissioners were appointed to begin the work of the Indian Residential Schools Truth and Reconciliation Commission, intended to record the testimony of Residential School survivors and foster reconciliation.

The framework of transitional justice, originally devised to facilitate reconciliation in countries undergoing transitions from authoritarianism to democracy, is used with increasing frequency to respond to certain types of human rights violations against indigenous peoples. In some cases, transitional justice measures are employed in societies not undergoing regime transition. Both the government of Prime Minister Stephen Harper and the leaders of the First Nations seem keen to employ transitional justice measures to deal with the legacy of the Residential Schools. Nevertheless, they have different reasons for endorsing a transitional justice framework, and distinct perspectives on the work and goals of the apology, the TRC, and compensation.

Transitional justice measures are limited. In Canada, such measures are designed to address only the legacy of the Residential Schools. But indigenous leaders may be able to push a transitional justice framework further, to demonstrate that the Residential School system was part of a larger web of racist and oppressive government policies, not an aberration in Canadian government policy toward First Nations. The system was of a piece with other racist and discriminatory practices that have structured aboriginal life and life chances for the past three hundred years, mostly under the sheltering umbrella of the 1920 Indian Act.

The government’s acknowledgement of the injustice and cruelty of the Residential School system offers an opening that aboriginals could use to highlight the injustices of other government policies, and the almost ludicrous effrontery of offering an apology for the Residential School system alone, in light of the apocalyptic damage and harm the colonial and Canadian governments have perpetrated against aboriginal peoples. To the extent a transitional justice paradigm supposes the existence of historic injustice, and implies that states have an obligation to redress such injustice, it may open space for a much broader conceptualization of the actual injustices post-colonial governments may be held responsible for.

The scope of transitional justice is not only contested spatially, but also temporally. For the government, one goal of transitional justice is to draw a line through history, emphasizing that it takes responsibility for government abuses that are nevertheless firmly in the past. It thereby underlines a distinction between present and past policy, to bring an end to recriminations that keep it morally on the defensive. Such government initiatives as apologies, truth commissions, and reparations are designed in part to allow the government and the dominant (settler) society to say finally to aboriginal peoples “OK, now we’re even.” The “transition” is to an even playing field in which the government can finally wash its hands of past wrongs.

For indigenous leaders, transitional justice is not a wall, but a bridge. Aboriginal peoples have an interest in using transitional justice to draw history into the present, and to draw connections between past policy, present policy, and present injustices. Indigenous peoples may wish to extend new conceptions of historical wrongs to demonstrate that certain present policies re-inscribe historical injustices and relations of oppression. It has taken many years for non-aboriginal Canadians to recognize and acknowledge that the residential school system was racist, abusive, and fundamentally wrong, not only in its practice but also in its intent. Indigenous leaders may use transitional justice to push this cognitive transformation, to critique present policy by drawing conceptual links to past policies. For indigenous peoples, transitional justice is effective to the extent it links the past with the present. The “transition” is to a relationship in which connections between past and present are firmly acknowledged, and in which the past guides present conceptions of obligation.

(credit for photo made at All Saints Indian Residential School, Aklavik, Northwest Territories; credit for TRC logo)

Reparations for "terrorists"?

(In this guest post, Lisa Laplante discusses her recent article examining whether the award of reparations victims of human rights violations turns on the status of those victims.)

Should victims of human rights violations with alleged or certain ties to groups that use terrorism receive reparations? This complex and sensitive dilemma has begun to arise in countries implementing reparation programs pursuant to the recommendations of their truth and reconciliations commissions.
Reparations law has special relevance to the transitional justice paradigm, as countries seek to respond to widespread human rights abuses — situations in which the line between victim and perpetrator often blurs. New case studies reveal the serious challenges of implementing administrative plans of reparations that first require that recipients be qualified. While some issues are purely technical and logistical, others — those that hold potential to generate new forms of harm and even new rights violations — beg further discussion and clarification. Certainly, as the recognition of the right to reparation grows, so do the legal issues pertaining to its practical application. In the realm of international human rights law, new cases offer opportunities to continue defining the parameters of this right, as noted in an ever-growing jurisprudence with respect to remedies law. Such is the case with equity's Clean Hands Doctrine, which dictates that an injured party's wrongdoing may limit his or her claim to reparations. When applied in cases in which victims of human rights violations seek relief, however, this doctrine conflicts directly with the well-established legal principle of nondiscrimination.
Should a person's innocence or guilt factor into whether he or she deserves to be repaired?
In answering this question, it is important to ask some others:
► What actions, allegiances and beliefs constitute a basis for exclusion, as well as what the standard is for determining wrongdoing-such as a firm criminal conviction or mere allegations?
► What if a person suffered torture, rape, unjust imprisonment and perhaps even was disappeared or killed, but was alleged to have connections to "subversive" and "terrorist" organizations, sometimes called "illegally armed groups"?
► Who determines whether such a person qualifies as a victim with a right to reparations?
There is only limited and inconsistent jurisprudence on the Clean Hands Doctrine in international law. In this article I argue that, in relation to human rights law, the Clean Hands Doctrine does not and should not apply. The very nature and purpose of human rights protections and guarantees protect against as much state abuse and domination as against state negligence. Thus, a state’s failure to observe international norms should result in the victim received a remedy for harm suffered regardless of the status of the victim. A contrary standard would read that, but for the wrongful conduct of the person, he or she would not be subject to state control, and thus would not have suffered harm. In other words, a person who committed a wrong would lose the protections enjoyed by “non-delinquents.” This would create a two-class tier of rights holders.
Given that the overarching purpose of human rights protection is to curb state abuse, one could argue that carving out exceptions where human rights violations have no consequences presents a worrisome precedent. Arguably, this approach has been assumed by the organs of the inter-American system, including the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights (below left). Although neither of these international human rights bodies has ruled directly on the issue, decisions issued by each suggest that neither body considers the character or status of the victim as a factor relevant to the determination of reparations. In effect, this reading supports the general rejection of the Clean Hands Doctrine in relation to reparations for human rights violations.
Nonetheless, states that have confronted politically divisive transitions from repressive regimes and internal armed conflict have not necessarily assumed this general rejection of the Clean Hands Doctrine.
For example, a transitional justice project was launched in 2001 by Peru's Truth and Reconciliation Commission (above right). (photo credit) Formed in the wake of twenty years of internal armed conflict between the state and illegally armed groups, the Commission presented its Final Report in 2003, and included recommendations for a Plan Integral de Reparaciones (Integral Plan of Reparations), which adopts a partial rejection of the Clean Hands Doctrine. Yet, as the Peruvian government now attempts to implement this Plan, it confronts the controversial and divisive issues related to how it can, and must, approach victims of state abuse who allegedly have, or had, ties to illegally armed groups. Due to political pressure, the national legal norms codifying the Plan include exclusionary clauses that reflect a full adoption of the Clean Hands Doctrine.
Peru's policy has generated much tension with respect to the implementation of the law. The situation grew more contentious when the inter-American system ordered reparations for survivors/victims of a massacre that occurred in 1992, during a state lockdown of a prison in which persons were held on suspicion of terrorist activity (many had not been convicted). This case, Miguel Castro Castro Prison v. Peru (2006), threatened to unravel the implementation of domestic reparations.
Local rejections of equitable reparations present serious political challenges for emerging democracies as they attempt to build the rule of law and respect for human rights.

'Nuff said

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

'They asked our forgiveness. Ntobeko told us that when we forgave him, he didn't care if he got amnesty because he had just been freed.'

-- Californian Linda Biehl, recalling her 1st conversation, just outside the hearing room of the South African Truth and Reconcilitation Commission, with Ntobeko Peni, a member of the mob who killed her 26-year-old daughter Amy Biehl (left), a Fulbright scholar and anti-apartheid activist caught up in racial violence in 1993, the year before the country's 1st multiracial elections. The quote appears in a Los Angeles Times article on the twists of fate by which Peni and another man who served time for the killing now work for the charitable Foundation established in Amy's memory. (photo credit)
A story worth contemplating as we mull yesterday's excellent post by IntLawGrrl Jaya Ramji-Nogales, respecting the proliferation of truth commissions on the African continent.

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.

Transitional Justice in Cambodia

One final post on my recent trip to Cambodia (flag at left) to observe the proceedings before the Extraordinary Chambers in the Courts of Cambodia. A challenge to the tribunal will be making its legal proceeding accessible to ordinary Cambodians, who may have only a rudimentary formal education.
Researchers and lawyers with the Documentation Center of Cambodia (DC-Cam) are travelling around the country (map, right) to interview survivors and former members of the Khmer Rouge and document their stories. These interviews will provide opportunities for Cambodians to participate in the upcoming trials before the Extraordinary Chambers of the Courts of Cambodia (ECCC). Part of this work has involved updating a set of complaints (the so-called Renakse Petitions) that were solicited in the early 1980s by the Vietnamese-backed People’s Republic of Kampuchea, which was placed in power after Vietnam invaded Cambodia (Kampuchea) in 1979 to oust the Khmer Rouge. DC-Cam is tracking down the authors of the Renakse Petitions to help them update their complaints and package them for submission to the ECCC, which will try surviving members of the Khmer Rouge (see photo below left—photo credit). For more on the origins of the Renakse Petitions, see here. This rolling work is the closest thing to a truth commission that Cambodia has ever had. Other transitional societies emerging from situations of mass violence and repression have staged truth commissions in order to provide an opportunity for victims to bear witness to the violence they survived under the prior regime.
The South African Truth and Reconciliation Commission also invited the participation of perpetrators, who could receive amnesty from prosecution if they met certain criteria and revealed details of the crimes they committed or to which they contributed. Our own IntLawGrrl Jaya Ramji-Nogales (below right) has been a longstanding advocate for a truth commission for Cambodia to complement the work of the ECCC. See Jaya Ramji(-Nogales), Reclaiming Cambodian History: The Case for a Truth Commission, 24 Fletcher Forum Of World Affairs 137 (2000). Regrettably, however, it is unlikely that the Royal Government of Cambodia or the international community will push for the establishment of a formal truth commission for Cambodia.
This makes the work of DC-Cam and other local organizations particularly important to personalize the quest for justice & accountability, as it will be impossible for the vast majority of the Khmer Rouge’s victims to participate in any meaningful way in the work of the ECCC. Moreover, only five individuals have been charged. With jurisdiction over only “senior leaders of Democratic Kampuchea [the Khmer Rouge] and those who were most responsible for the crimes,” the tribunal will not prosecute low to mid-level Khmer Rouge cadre who may have committed international crimes. The work of DC-Cam is thus necessary to dispel any misconceptions that only the top leaders were responsible for abuses. In fact, as research by Cambodian expert Steve Heder and others has shown, Khmer Rouge cadre were given considerable discretion to implement the sometimes cryptic directives from the Khmer Rouge Standing Committee, so some provinces suffered more than others. See Steve Heder, Reassessing the Role of Senior Leaders and Local Officials in Democratic Kampuchea Crimes: Cambodian Accountability in Comparative Perspective 377, in Bringing the Khmer Rouge to Justice: Prosecuting Mass Violence before the Cambodian Courts (Jaya Ramji & Beth Van Schaack 2005).
These stories are equally as vital to building a shared national history of life under the Khmer Rouge and to further understand the patterns of obedience and violence during that fateful time. For many years, students in Cambodia were taught very little about the Khmer Rouge era. History courses simply skipped over the years 1975-79 with a mere mention of the Khmer Rouge. To rectify this, DC-Cam has recently released a hard copy and online textbook that can be used in high school classes around the country (right). The center has also embarked on a 3-year project to develop human rights curricula for the primary, high school, undergraduate, and graduate levels that will consider the causes and consequences of genocide and mass violence in a number of different settings, including in Cambodia.
In addition to the standard goals of the criminal law—achieving retribution, promoting deterrence, and expressing a community’s opprobrium about disruptive acts—international tribunals are often established with a host of ambitious objectives that include achieving national reconciliation, rehabilitating victims and perpetrators, creating a definitive collective history, and repairing broken societies. Like domestic criminal proceedings, trials before international tribunals do well at ascribing individual criminal responsibility to individual perpetrators, particularly from a “top down” perspective. They can also engage in useful norm enunciation, which can inform domestic efforts to legislate against and prosecute international crimes. Ongoing research on the results of the ad hoc criminal tribunals suggests that international tribunals may be less effective at achieving these other ambitions.
Given the limitations of international trials, the international community must be more active about promoting (and funding) alternative mechanisms within societies to address the crimes of a prior regime. These initiatives can reflect the particular socio-cultural, historical, artistic, religious, and legal culture and promote reconciliation, rehabilitation, reparation, and accountability on the community level. In Cambodia, such an effort could tap into the widely held Buddhist beliefs of the populace (the vast majority of Cambodians practice Therāvada Buddhism), the high levels of respect felt for Buddhist monks and nuns (photo left—credit), and the existing network of monasteries and nunneries. While the work of the ECCC is important and deserves international support, a broader response to the massive crimes of the Khmer Rouge is merited.