To close America’s 4th of July weekend, reviewing un cri de coeur démocratique

mdmAmid this weekend’s reminiscences of the birth of the United States, I found much to ponder in one reading – not in English, but rather in French.

Entitled La démocratie dan les bras de Big Brother – that is, Democracy in the Arms of Big Brother – it’s the transcript of Le Monde journalist Franck Johannès‘ recent interview with an IntLawGrrls contributor and longtime colleague of mine, Mireille-Delmas Marty, emerita professor of the Collège de France de Paris. (photo credit; prior posts)

Delmas-Marty sounds a warning about the “downward spiral” that, in her view, has created an unwelcome “metamorphosis in criminal justice” in the years since terrorists attacked New York and Washington on September 11, 2001. 1st in the vortex was the United States, she says, and she fears that her own homeland, France – and, indeed, the planet – are following suit.

Contributing to this analysis, in her view:

► Characterization of terrorist acts as “exceptional” offenses, related to more to war than to ordinary crimes, coupled with the redefinition of unlawful association so that it may apply to “only one person,” without proof of actual association with another.

► Globalization of surveillance and “social control,” in an effort to predict offenses before they happen. Post-9/11, the United States moved from notions of preemption to notions of prevention, she notes. She argues that today the United States, and others, have moved further, to “prediction” – a shift that lends justification to confinement of persons deemed harmful, not only before they have been proved to commit an offense, but also after they have served postconviction sentences. She contends (all translations mine):

‘To lock up a human being, not to punish harm but rather to prevent harm, as if he were a dangerous animal, is in truth an act of dehumanization…’

► Persistence of nonstate actors that once would have been deemed exclusively “criminal organizations,” but now are seen as parties waging armed conflict. Not long ago, Al Qaeda dominated this discourse; today, it is “the so-called ‘Islamic State.'” Delmas-Marty continues:

‘With whom is a treaty of peace to be concluded? We now have all the ingredients for a global, and permanent, civil war.’

liberteAmong Delmas-Marty’s recent books is Libertés et sûreté dans un monde dangereux (2010). In the Le Monde interview, as in that book, she calls for restoring a balance between desires for security and the value of liberty. (It’s a balance that I’ve explored in my own writings, including “Punish or Surveil” (2007).)

“To dream of perfect security,” Delmas-Marty maintains, is an “illusion.” She allows that “[i]n the name of the struggle against terrorism, there can be restrictions on the right to respect for privacy,” yet she would require that such restrictions themselves be constrained in accordance with the principles “of legality, proportionality, and democratic control.”

Much to ponder as the United States begins its 240th year of democracy.

(Cross-posted from Diane Marie Amann)

Child Marriage in India: Loopholes in the Law

By sheer numbers, child marriage in India dwarfs the rest of the world; India has the highest number of child brides of any country.  Although the rate of child marriage is decreasing for children under the age of 15, the rate of marriage for girls aged 15-18 has increased from 26.7% in 1998-99 to 29.2% in 2005-06.  Child marriage is clearly not ending despite laws in place, and is perpetuated in India due to a range of factors, most prominently dowry, poverty and lack of educational opportunity for girls, concerns about the safety and honor of girls, and prevalent gender and social norms.

Child marriage violates international human rights laws and standards, including Article 16(2) of the Universal Declaration of Human Rights, which requires the “free and full consent” of spouses to marriage. It also violates Article 16 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which requires women and girls to have the “right freely to choose a spouse” and to “enter into marriage only with their free and full consent.” CEDAW also states that the “betrothal and the marriage of a child shall have no legal effect.” India is also signatory to the Convention on the Rights of the Child (CRC), and child marriage violates a range of CRC provisions, including the right of children not to be separated from their parents against their will and the right of children to freely express their views on matters that affect them. Further, under the CRC, the state is obligated to take measures to abolish traditional practices prejudicial to the health of children, including marriage.

The social forces at play perpetuating child marriage are difficult to combat, deep-seated and intertwined as they are. But perhaps what is lesser known is that laws in India prohibiting child marriage are flawed, contributing to the problem.

First, the Prohibition of Child Marriage Act, 2006 repealed the Child Marriage Restraint Act, 1929 and attempted to address the previous Act’s shortcomings. This Act defined child marriage as the marriage of boys under age 21 and girls under 18. The Act also made positive changes, including extending the maximum length of punishment to two years of imprisonment and/or a fine of up to one lakh rupees. If the marriage is nullified, the Act requires the return of money, valuables, gifts, and ornaments given by each party to the other, and also allows an order of maintenance for the former wife.  The Act also provides for government-appointed Child Marriage Prohibition Officers to work to prevent child marriages; while good in theory, it is unclear whether they are actually in operation and to what extent.

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Introducing Akhila Kolisetty

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It’s our great pleasure today to welcome Akhila Kolisetty as an IntLawGrrls contributor. Akhila graduated from Harvard Law School with a J.D. in 2015, and will be joining the Open Society Foundations as a Presidential Fellow in Law in the fall.  Her work and research focuses on legal empowerment, legal pluralism and personal law, and methods of improving access to justice to women and girls, particularly survivors of domestic violence.

During law school, Akhila has held legal internships at the Women’s Rights Division of Human Rights; the Family and Matrimonial Law Unit of the New York Legal Assistance Group; the SMS Sehgal Foundation in Gurgaon, India; and Timap for Justice in Sierra Leone as a Chayes Fellow.  In 2014, Akhila led a team of students with Harvard’s Law and International Development Society and Namati in developing an advocacy toolkit with for community paralegal organizations around the issue of the right to legal aid. Akhila has also conducted research on legal empowerment programs and gender with BRAC in Dhaka, Bangladesh. In 2014, she published Examining the Effectiveness of Legal Empowerment as a Pathway out of Poverty: A Case Study of BRAC in the World Bank’s Justice and Development Working Paper Series.

At Harvard, she has conducted research on Muslim personal law in India through the Digital Islamic Law Lab program. She was also involved with the Harvard International Human Rights Clinic, conducting research and advocacy on issues of citizenship rights in Israel and Palestine and the role of communities in business and human rights frameworks. Through the Family Law Clinic, she represented survivors of domestic violence in family law cases. Akhila has also served as a Technical Editor and Online Editor for the Harvard Human Rights Journal.  Prior to law school, Akhila worked with the Washington Lawyers’ Committee, the ACLU, and with Justice for All, an non-profit providing legal aid and literacy in Afghanistan. Akhila received a B.A. in Economics and Political Science from Northwestern University.

Akhila’s first post will discuss child marriage laws in India. Heartfelt welcome!

Go On! Master in Human Rights and Conflict Management 2016 – Scuola Superiore Sant’Anna (Pisa, Italy) – first round application deadline TOMORROW, July 2

The deadline for non-EU citizens to apply for the XIV Edition of the Master in Human Rights and Conflict Management 2016 – Scuola Superiore Sant’Anna [pdf] in Pisa, Italy, is TOMORROW, July 2, 2015 (first round of selections) or September 17, 2015 (second round). Applications for admission by EU citizens shall be sent no later than October 15, 2015Full information below and at www.humanrights.sssup.it.

Description:

The Master in Human Rights and Conflict Management is designed to provide students from different cultures and backgrounds with a deep understanding of the linkages between human rights and conflict management theory and practice. The curriculum, strongly field oriented, prepares participants for working with NGOs, governments, aid agencies, the UN system and regional organisations, also operating in the context of complex emergencies and joint operations.

Structure:

The Programme is divided into two didactic modules, running between mid January and the end of July 2016, followed by an internship or field experience of min. 3 and max. 6 months, starting from August 2016, and a presentation of the students’ final dissertation in spring 2017. 

Key features:

• 1 year postgraduate professionalizing and field-oriented programme

• Interdisciplinary nature of the programme with a methodology characterized by a combination of theory and practice

• Lecturers and trainers chosen among high level academics, diplomats, international organizations officers and NGOs activists, thus offering a wealth of both academic and field expertise

• Mandatory internship/field experience in leading organisations working in the areas of human rights protection/promotion, conflict prevention/resolution, humanitarian assistance or development, either in the field or at Headquarters

• Career service with specific sessions on career coaching and recruiting session with UNV

• International and multicultural student environment

Why should I apply?

You should apply if you are looking for a professionalizing and mission/field-oriented international master programme, as offered by the Scuola Superiore Sant’Anna, an example of academic excellence in training and research. If your training needs include practical skills, besides relevant theoretical knowledge, as well as internship/field-experience with prestigious international organizations, this training programme is highly relevant for you.

Curriculum:

The curriculum is strongly multidisciplinary and field oriented and includes courses in: International Law, International Humanitarian Law, International Human Rights Law, Geopolitics, HRs philosophical dimension, Economic Development, Theories and Techniques of Conflict Management, International PK and PB operations, International HR Field operations, International Election Observation missions, International Humanitarian operations, International Project Development, Personal security, Stress Management, Preventive Medicine & First Aid, Essentials of Research and Writing, Career coaching.

Internship:

The internship is meant to supplement the in-class training with a relevant hand-on experience, to be carried out with a renowned organization working in the areas of human rights protection/promotion, conflict prevention/resolution, humanitarian assistance or development, either in the field or at headquarters. 

Tuition fee:

The tuition fee for the full Programme is 7.500,00 euros, payable in two installments. It covers the following: attendance costs and participation to field trips, didactic material (in electronic format), tutorship, lunch (on class and exam days), access to all facilities of the Scuola (including library and computer rooms). It does not include accommodation costs in Pisa and during the internship, nor travel expenses.

The Master Programme offers one scholarship in memory of Gualtiero Fulcheri – former UN Assistant Secretary General – covering the full tuition fee and to be awarded to the most deserving applicant. Depending on financial availability, reduced tuition fee might be offered to citizens from non-OECD countries who are eligible for a study visa for Italy .

Contact us

For further details, please visit www.humanrights.sssup.it or contact:

Master in Human Rights and Conflict Management

Scuola Superiore Sant’Anna

Via Cardinale Maffi, 27 56126 Pisa – ITALY

E-mail: humanrights@sssup.it

Tel. +39 050 882653

Fax +39 050 882665

Read On! Vulnerability of Children within International Law

Read On!  Vulnerability of Children within International Law

The Nordic Journal of International Law just published a Special Edition on the Vulnerability of Children within International Law, dedicated to the late Lucy Smition who was the first woman in Norway to be awarded a doctorate of Law, and later became Norway’s first female Law professor at the University of Oslo, focusing on children’s rights.   I had the honor of serving as guest editor and am very pleased with the contributions:

John Tobin (Melbourne Law School), Understanding Children’s Rights: A Vision Beyond Vulnerabilty

Sevda Clark (Norwegian Centre of Human Rights), Child Rights and the Movement from Status to Agency: Human Rights and the Removal of the Legal Disabilities of Vunerability

Kirsten Sandberg (UN Commitee on the Rights of the Child, University of Oslo), The Convention on the Rights of the Child and the Vulnerability of Children

Diane Marie Amann (University of Georgia Law School, Special Adviser to ICC), The Child Rights Convention and International Criminal Justice

Helen Keller & Corina Heri (European Court of Human Rights, University of Zurich), Protecting the Best Interests of the Child: International Child Abduction and the European Court of Human Rights

Sara Dillon (Suffolk University Law School), Child Labour and the Global Economy: Abolition or Acceptance.

The Special Edition is available here

Response to Michael N. Schmitt and John J. Merriam: On the Tyranny of Context

In their forthcoming paper, The Tyranny of Context: Israeli Targeting Practices in Legal Perspective, Michael Schmitt and John J. Merriam examine Israel’s targeting practices against the Gaza Strip and Lebanon. Their purpose is to scrutinize the context in which these attacks take place as well as the Israeli Army’s relevant legal standards regulating them. The paper reads like read like an estimable apology on Israel’s behalf. That is because their findings lack the benefit of operational practice that would bear upon their legal conclusions.

Their findings are based on two visits to Israel in December 2014 and February 2015. During those visits, the Israeli Army granted them:

…unprecedented access that included a “staff ride” of the Gaza area, inspection of an Israeli operations center responsible for overseeing combat operations, a visit to a Hamas infiltration tunnel, review of IDF doctrine and other targeting guidance and briefings by IDF operations and legal personnel who have participated in targeting. The authors also conducted extensive interviews of senior IDF commanders and key IDF legal advisers. (3)

Schmitt and Merriam do not speak to a single person who may be a victim of Israel’s targeting practices. They acknowledge that their approach “might be perceived as leading to a pro-Israeli bias” but insist “the sole purpose of the project was to examine Israeli targeting systems, processes and norms in the abstract.” (3) In essence, they acknowledge that this entire paper examines what IDF lawyers say rather than what IDF operators do. At best – we should read it as a supplementary report to the Israeli Army’s war manual: it is just theoretical. However, they they also claim that their combined experience enables them to assess the “credibility and viability” of Israel’s claims and the outcome is “granular and exceptionally frank.” (4) This is an arguably impossible task if they do not assess Israel’s assertions about their practices in comparisons to actual practice.

As my colleague and legal scholar on laws of war explained to me, he has become accustomed to reading such reports like an anthropologist. Indeed, the value of this paper is its insightful display of the production of knowledge on national security and counter-terrorism from the US and Israeli metropolises. While this may be reason to dismiss the paper all together, it is also precisely why the paper merits response. Schmitt and Merriam are hardly insignificant. Their tremendous body of scholarship and influence means that their interventions will be taken very seriously and will inevitably bear upon the ways we come to understand, justify, and/or reject the development of the laws of armed conflict. This short piece aims to use three select examples to highlight the methodological shortcomings that give rise to insufficiently tested findings that are emblematic of the paper. (I include only one here, for the full article, you can read it here.) For the sake of specificity and fidelity to context, I will focus just on Operation Protective Edge, Israel’s 2014, 51-day attack on the Gaza Strip.
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On the Job! American Red Cross hiring an IHL Legal Advisor

The American Red Cross (ARC) International Services Department (ISD) is hiring a Legal Advisor in the area of International Humanitarian Law (IHL).

Summary

The Legal Advisor will work as part of the IHL team where he/she will teach an IHL CLE/professional course; assist with research, writing and analysis on IHL and conflict-related issues; and will support the team in complementing and revising educational materials on IHL to highlight the contemporary relevancy of humanitarian issues. Knowledge of international humanitarian law required and a strong interest in international issues, public international law, human rights and international relations or related fields is essential. This position will report to the Director, International Humanitarian Law.

Responsibilities

• Lead NHQ hosting of the Clara Barton IHL Competition, conferences, meetings, webinars, as required
• Organize law school workshops in key regional cities/hubs with law school partners
• Conduct research on IHL and policy-related areas and draft memoranda on relevant issues of IHL as needed for program development
• Track and identify current events and relevance to IHL and prepare updates on developments in IHL
• Draft talking points, backgrounders, potential presentation material to support our IHL networks
• Develop supplemental materials for IHL teaching materials, presentations, other events
• Attend briefings/conferences on IHL-related issues and provide updates of key points to IHL team
• Develop and foster networks for possible partnerships with actors within legal community and external audiences (law schools, faculty, professional associations, etc.)
• Assist with content and messaging for social media tools
• Supervise IHL legal interns
• Support the IHL CLE/professional training courses, as needed
• Perform other job-related duties, as assigned.

For more information and to apply, please visit https://www.americanredcross.apply2jobs.com/ProfExt/index.cfm?fuseaction=mExternal.showJob&RID=56011&CurrentPage=1.

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