The Ntaganda Case, Prosecutorial Discretion at the ICC, and the Recognition of Sexual Violence against Males

I. Introduction

As the International Criminal Court (“ICC”) sends Bosco Ntaganda to trial, there has been a resurgence in the focus on sexual violence in war. This also coincides with the timing of the Global Summit to End Sexual Violence in Conflict. However, the focus of this discussion has been largely on sexual violence against women, with scant attention to sexual violence that is perpetrated against men and boys. The Office of the Prosecutor and the Prosecutor, Fatou Bensouda, have issued a Policy Paper on Sexual and Gender Based Crimes (“Policy Paper”), which represents some progress on the part of international criminal law’s (“ICL”) fight to end impunity for sexual crimes against women and girls, and men and boys, as the focus of ending and punishing sexual violence has in ICL’s recent history neglected to address the issue of sexual violence against men and boys.

II. The ICC’s Perspective on Gender-based Crimes
a. Increased Focus on Sexual Violence against Men and Boys

The Policy Paper defines gender-based crimes as “those committed against persons, whether male or female, because of their sex and/or socially constructed gender roles. Gender-based crimes are not always manifested as a form of sexual violence. They may include non-sexual attacks on women and girls, and men and boys, because of their gender.” (p. 3) This is a departure from the focus of sex crimes that has developed at the International Criminal Tribunal for the former Yugoslavia (“ICTY”), as the Tadić case provided some analysis of sexual violence against men in the Omarska prison camp. However, there has not been a comprehensive prosecutorial focus on the abuse of males in the indictments submitted to the tribunals, or in the prosecutorial strategy that is available for public discernment. Hopefully, the Policy Paper will direct the ICC’s Prosecution to increased focus on sexual violence against men and boys, along with a focused and unrelenting drive to end sexual violence against all victims.

b. The “Gender [P]erspective”

What may become an important tool in directing the jurisprudential analysis of sexual violence is the “gender perspective” of the Policy Paper. (p. 3) This perspective, through its inclusion of males, is a positive step forward in the fight to end impunity for sexual violence, as sexual violence against males has traditionally been ignored and therefore unpunished. A question that is raised by the term “gender perspective” is how it will impact the definitional characteristics of sexual crimes at the ICC, and possibly elsewhere. The perspective states that it “requires an understanding of differences in status, power, roles, and needs between males and females, and the impact of gender on people’s opportunities and interactions.” (p. 3) Whether this means that the definition of rape, for example, will apply to both males and females in a gender-neutral application is a possibility, though it is also possible that there will be a departure from the analysis that has been developed at the ICTY and the International Criminal Tribunal for Rwanda (“ICTR”) starting with the Akayesu trial judgment, to apply the elements of sexual violence against males and females with a different rubric. It is also unclear what role the “[g]ender analysis” component will play in the future exercise of prosecutorial discretion of the ICC (p. 4), though it is clear that the Prosecution will as a matter of policy include men and boys in their future indictments and strategy. (p. 12, paras 16, 20, 27, 28)

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Introducing Parisa Zangeneh

ParisaParisa Zangeneh is a newly qualified lawyer with interests in international criminal law, the law of armed conflict, and international human rights law. Parisa has developed these interests during internships in the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia, and the Trial Chambers of the Special Court for Sierra Leone and the Special Tribunal for Lebanon.

Parisa is currently a Ph.D. student in international law, and she completed her LL.M. at the School of Oriental and African Studies, her LL.B. from the University of Edinburgh, and her B.A. from McGill University. She would like to thank IntLawGrrls for including her and for allowing her to contribute, and she is particularly honored to be a part of this community. [Editor’s note: It’s our pleasure!]
Parisa’s first post will discuss sexual violence against men and boys, prosecutorial discretion at the ICC, and the Ntaganda case. Heartfelt welcome!

International Law Programs at the AALS Annual Meeting

The American Association of Law Schools (AALS) Section on International Law is pleased to sponsor two programs at the AALS 2015 Annual Meeting in Washington D.C. from January 3-4, 2015.

The first program is called “Adding Foreign and Comparative Law to Your Course: Guidelines, Materials, and Practical Advice for Law Professors”. Using comparative and international materials can enrich teaching of almost any course and can better prepare law students for the transnational contexts of their future legal work. This panel will provide practical examples, materials, and advice on how to integrate foreign and international law materials in basic first-year courses, as well as some upper-level courses. It will be held on Saturday, January 3, 2015 from 5:15-6:30 pm. Audience participation in sharing ideas is strongly encouraged, but the program will be led by section officers:

Professor Cindy G. Buys, Southern Illinois University School of Law (constitutional law)
Professor Matthew Charity, Western New England School of Law (contracts)
Professor Milena Sterio, Cleveland-Marshall College of Law (criminal law/civil procedure)
Professor Mark Wojcik, John Marshall Law School – Chicago (torts)

The second program is titled “The Influence of International Law on U.S. Government Decision-Making” and will be held on Sunday, January 4 from 10:30 am -12:15 pm. This panel will explore the role that international law plays in informing the policy outcomes arrived at by U.S. government decision-makers. It will examine questions such as: To what extent is international law determinative or even influential, and to what extent does the policy area, the branch of government, or the ideological orientation of the decision-maker matter? As a more practical matter, at what stage in the decision-making process is international law taken into account and who are the most influential actors? How can academics be most influential in that process?

Speakers include:

Mary McLeod, Principal Deputy Legal Advisor, Office of the Legal Advisor, U.S. Department of State

Sandra Hodgkinson, Vice President of Planning and Chief of Staff at Finmeccanica, North America and DRS Technologies. Ms. Hodgkinson formerly served as Assistant Secretary of Defense for Detainee Affairs and as Deputy to the Ambassador-at-Large for War Crimes Issues. She also worked for the Coalition Provisional Authority in Iraq as Director of the Office of Human Rights and Transitional Justice from 2003-04.

Ralph Steinhardt, Professor of Law & Arthur Selwyn Miller Research Professor of Law, George Washington University Law School. Professor Steinhardt is the winner of the Section’s Call for Papers and will present his paper, “International Law and the Administrative State.”

The panel will be moderated by the Section Chair, Professor Cindy G. Buys, from Southern Illinois University School of Law.

Please spread the word to your colleagues. We hope to see you there!

Read On!: International Commercial Contracts: Applicable Sources and Enforceability

Read On!: International Commercial Contracts: Applicable Sources and Enforceability

Professor Giuditta Cordero-Moss has published the book “that she would have liked to have read when she started her career as an in-house lawyer in an Italian multinational Company about thirty years ago”; it is titled International Commercial Contracts and is available here.

Any practising lawyer and student working with international commercial contracts faces standardised contracts and international arbitration as mechanisms for dispute settlement. Transnational rules may be applicable, but national law is still important. Based on extensive practical experience, this book analyses international contract practice and its interaction with the various applicable sources: which role is played by the contractual regulation, which by national law, which by transnational sources, what is the interaction among these factors, and how does this all apply to contracts that refer disputes to international arbitration?

Giuditta was kind enough to respond to my request for an interview for IntlLawGrrls:

Q: You studied law in Rome and then pursued Phds in both Russia and Norway, what impelled you towards academic research and what did you write about?

A: I have always been interested in pursuing a deep and systematic understanding of the law. For the first decade and a half of my career I was a corporate lawyer, and I was very busy with drafting contracts , negotiating them and advising on their operation. Whenever interesting legal issues arose, they had to be addressed as efficiently as possible. There was no possibility to engage in extensive research, as the next contract and negotiation was waiting; the interesting legal issues were often avoided by commercial solutions. This gave me a long mental list of possible research topics. Many of these topics related to Russian law, as I was following my company’s (the Norwegian multinational Norsk Hydro’s) legal affairs in Russia. It was the beginning of the 90s, the Soviet Union had collapsed, the Russian legal system was undergoing important reforms, and it was very difficult to obtain reliable legal advise. To ensure that Norsk Hydro’s activity in Russia was relying on a certain competence of Russian law, the head of the Legal Department of Norsk Hydro agreed to sponsoring my studies of Russian law. That’s the background for my Russian PhD. The topic was the intersection between freedom of contract, the applicable law and arbitration. Back in Norway, I decided to continue working on the mental list of possible research topics that I had been compiling during all my years in practice.


Q: You have practiced as an international commercial lawyer in Italy, Norway and Russia. This must provide you with broad insight as the importance of context and culture on the interpretation and application of international commercial law- What is the most memorable (amusing, confusing, etc.) example from practice?

A: There is one red thread that has characterized my practice – be it the years as financial lawyer in Italy (at Fiat) or the years as international commercial lawyer in Norway and Russia: when contracts are being drafted and negotiated, all attention goes to the wording of the terms, and very little to the applicable law. You can be in a room filled with lawyers for all involved parties, both in-house and external, and they will negotiate for days, nights and weekends the amount of the penalty to be paid in case of delays in the production, or whether the termination clause should contain the word “reasonable”. At the very last minute before the signing, then, the applicable law may be decided, and nobody will pay attention to the circumstance that choice of English law will make all the negotiations of the penalty useless (because contractual penalties are illegal under English law), or that choice of German law will imply that the termination clause is based on reasonableness even if it does not say so.


Q: Your new book, International Commercial Contracts, seeks to explain how international contract law interacts with national law and how this affects international arbitration decision making and enforcement by national courts. Whereas one school of scholars view international commercial law as autonomous system, you seem to emphasize the importance of recognizing the field as transnational- where national rules and international norms interface. Can you explain the background for your vision?

A: The background is very practical, and appears from my answers to your first two questions: my research is based on the desire to clarify some of the questions that arose when I was drafting, negotiating and applying international contracts. It is certainly very empowering to draft the terms of a contract without taking into consideration the applicable law, as if the contract was part of an autonomous system. However, when differences arise between the parties, contracts need to be interpreted and enforced. It is in this phase, that the applicable law becomes important. Even when the contract contains an arbitration clause, the relevance of the applicable law may not be completely excluded. My interest in the interaction with national law is based on the desire to write contract terms that are enforceable in practice. To be able to do so, it is necessary to understand to what extent the contract terms are capable of being enforced simply on their own basis, and to what extent they depend on the applicable law.


Q: At present some international courts, such as the ICC, are experiencing legitimacy challenges. What are the key legitimacy challenges confronting international arbitration tribunals?

A: International commercial arbitration is very well established as a mechanism to solve disputes, not the least thanks to the 1958 New York Convention on Recognition and Enforcement of Foreign Arbitral Awards. Nowadays, arbitration is being increasingly criticized for having become too well established, that is too regulated, too formalized, too time consuming, too expensive. There is a growing interest in alternative dispute resolution mechanisms, that are less rigid: conciliation, mediation, structured negotiations. These mechanisms cannot really compete with arbitration as long as their result in not enforceable, but they can be appropriate in situations where enforceability is not crucial.


Q: Your book presents many practical insights from practice on proper contract drafting. It seems that it will be a good textbook for students and reference for practitioners. Do you think we need to change legal education to focus more on the provision of practical skills – like contract drafting, oral argumentation (moot arbitrations), etc.?

A: Law is an applied science, and it can be very useful if the educational system may convey both aspects, the practical and the theoretical. In my opinion, for the theoretical part it is very important that students are taught the method to apply the law: if they understand the main principles, how to apply the principles to factual situations, which sources are relevant, how to interpret sources, etc., then they are given the possibility to orientate themselves in the legal landscape. I think it’s less important that we teach the specific content of every single provision – whether the term to present a certain request is 20 or 30 days, for example. This is something that they may look up when they need it. The practical side of teaching is also very important: it permits the students to apply in practice the method they have learnt in theory, which ensures a better pedagogical result. The systems of legal eduction vary considerably, in some countries there is very little emphasis on practical skills, in others there is more. It is certainly desirable to reach a balance between theory and practice, although it can take a lot of effort and time to introduce new elements in educational traditions.

Q: You are one the few women within international commercial arbitration. How can we recruit more women into this Field?

A: There are many more women of the younger generation within arbitration than there used to be a couple of decades ago.


Thank you for joining us on Intl Law Grrls!


CONSISTENCY: The Most Urgent Action Against Climate Change

During the first two weeks of December, world leaders will lay the foundation for a new global agreement on climate change at the 20th Conference of the Parties (COP20) of the United Nations Framework Convention on Climate Change in Lima, Peru. Its focus will be creating a draft agreement that, at next year’s COP in Paris, will replace the 1997 Kyoto Protocol. This time, as stated by Manuel Pulgar-Vidal, Peru’s Environment Minister and next President of the Conference, “the world will not accept another failure.”

Not without reason. Each year we are both witnesses to and victims of the worsening impacts of climate change. And our role in the problem is conspicuous: “Human influence on the climate system is clear, and recent anthropogenic emissions of greenhouse gases are the highest in history,” the Intergovernmental Panel on Climate Change concluded in their fifth report.

With COP20 nearing and recognition of the problem growing, world leaders are increasingly giving speeches, promising action and making hopeful commitments. One recent example is the unprecedented agreement between China and the United States, which established limits and objectives for the reduction of emissions. In Latin America we, too, have taken effective steps to confront the greatest threat to the human race.

Despite this progress, however, there remain in practice many policies that both created the problem and make it worse. In particular, the reliance of our economies on fossil fuels, which generate 57 percent of the global emissions of carbon dioxide. In the search for alternatives, we have boosted hydroelectric power from large dams. But dams are not clean energy. They generate significant amounts of greenhouse gases, such as carbon dioxide and methane, particularly in tropical regions. These and the other negative impacts of dams are often ignored, resulting in rudimentary solutions to climate change.

Consistency, then, becomes critical. What follows are examples of the lack of it in our own countries. Let’s take them into account as an effort to make adjustments, align objectives, and not erase with one hand what was written by the other:

  • Brazil is a key player in the region, and has demonstrated its will to achieve positive results on climate change. Proof of this is the historic decline of deforestation in the country, 79 percent in the last decade, as announced by Brazil’s President at the Climate Summit. However, Brazil continues to focus its development on fossil fuels, mining and large dams, particularly in the Amazon Basin. Under the influence of Brazil, 254 new dams are either under construction or in planning phases in the Amazon Basin, including the massive Belo Monte Dam on the Xingú River.

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Introducing Astrid Puentes

Astrid Puentes AIDAIt’s our great pleasure today to welcome Astrid Puentes Riaño as an IntLawGrrls contributor. Originally from Colombia, Astrid holds an LL.M. in Comparative Law from the University of Florida, a Masters in Environmental Law from the University of the Basque Country, and a J.D. from the University of Los Andes, Colombia.  Astrid is a Co-Executive Director of AIDA, the Interamerican Association for Environmental Defense, responsible for the organization’s legal work in the Americas since 2003.  She has worked from AIDA’s office in Mexico City since 2004, overseeing the team’s attorneys and the development and implementation of legal strategies.

Astrid has significant experience with public interest litigation, especially in the field of human rights and the environment.  She is a highly regarded presenter and prolific author, providing critical legal analysis and strategic advice to communities, nations and international organizations.  Astrid taught a new seminar on human rights and the environment in Latin America at American University over the summer of 2014.

Astrid is active in the Environmental Law Alliance Worldwide and sits on the international advisory board for International Rivers and EarthRights International. Her first post will discuss the need for consistency in Latin American climate change policies. Heartfelt welcome!

Read On!: The Greening of European Business Under EU Law

Read On!:  The Greening of European Business Under EU Law

Beate Sjåfjell and Anja Wiesbrock have just published “The Greening of European Business under EU Law”

The relationship between environmentally sustainable development and company and business law has emerged in recent years as a matter of major concern for many scholars, policy-makers, businesses and nongovernmental organisations. This book offers a conceptual analysis of the principles of sustainable development and environmental integration in the EU legal system. It particularly focuses on Article 11 of the Treaty on the Functioning of the European Union (TFEU), which states that EU activities must integrate environmental protection requirements and emphasise the promotion of sustainable development.

The book gives an overview of the role played by the environmental integration principle in EU law, both at the level of European legislation and at the level of Member State practice. Contributors to the volume identify and analyse the main legal issues related to the importance of Article 11 TFEU in various policy areas of EU law affecting European businesses, such as company law, insurance and state aid. In drawing together these strands the book sets out the requirements of environmental integration and examines its impact on the regulation of business in the EU.

The book will be of great use and interest to students and researchers of business law, environment law, and EU law.

More information on the book is available here.


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