A feature of recent American Society of International Law meetings has been IntLawGrrls’ group photo – a group that expands with every passing year. The 2014 edition above was made at the close of the WILIG luncheon at which 3 judges of the International Court of Justice, Joan E. Donoghue, Julia Sebutinde, and Xue Hanqin were honored. We are both honored and delighted that they – along with other dignitaries, like Ambassador Patricia O’Brien, ASIL Executive Director Betsy Andersen, and new ASIL President Lori Damrosch – joined the contributors present for this photo. Standing at the very back and watching over us all again this year is our foremost foremother, Eleanor Roosevelt.
On this day, in 1954, the Convention on the Status of Refugees (the Refugee Convention) signed 28.07.1951, entered into force. Incorporating fundamental norms regarding who is a refugee, and setting out the rights and responsibilities of refugees as well as the responsibilities of receiving states, the convention was a landmark in establishing international standards for the treatment of refugees, based on principles of humanity. The convention was originally adopted to deal with the aftermath of World War II and the displacements it caused by persecution and war, but got universal coverage with the 1967 Protocol. Despite criticism arguing that it is outdated or that it is an instrument for abuse, the cycle of war and systematic human rights violations continue to confirm the relevance and importance of the convention and the protocol today, over half a century later.
Together with international human rights law and international humanitarian law, international refugee law aims at the protection of the life and dignity of each and every person. International refugee law has, however, since its inception been primarily concerned with the duties of the receiving states. This is perhaps a result of a necessary division of labor in international law. It has, however, led the discourse and work of international refugee law to be primarily about the duties and the policies of the receiving state, and not about the duties and policies of the refugee producing state- the source state. Hence, refugee law continues to be law that lags behind- it is marked by post-problem attention instead of including attention to the root of the problem- namely the domestic situation that forces some persons to flee their home country. Refugee law needs not only to be met by humanitarian concerns but equally by political considerations at the root. As we mark the 60th anniversary of the Refugee Convention, it is time to ask whether a better protection of the life and dignity of each person, including each refugee, requires that international refugee law includes attention to the root of the problem, and expands its horizon to include attention to the domestic legal order of source states.
This is nothing particularly radical, it is already part of international human rights law, but it seems somehow to have been forgotten along the way when discussing international refugee law. The Refugee Convention itself confirms that the primary duties lie with the source country by referring to the Universal Declaration of Human Rights (UDHR) in its preamble and to the principle that human beings shall enjoy fundamental rights and principles without discrimination. TO ensure these rights is the duty of every state. Indeed, if all states took these duties seriously, there would be far less refugees in the world.
Furthermore, the definition of refugee in the Refugee Convention provides us with some additional guidelines in how to approach the source country problem in so far as it is related to the domestic legal order. Article 1(a)(2) of the convention defines a refugee as an individual who is outside her country of nationality or habitual residence, who is unable or unwilling to return due to a well-founded fear of persecution based on her race, religion, nationality, political opinion, or membership in a particular social group. Under this definition, internally displaced persons, including for example persons fleeing natural disasters and generalized violence are not considered refugees under the convention.
This definition is important because it corresponds to the international human rights obligations of every state under the UDHR and under the covenants. It tells us that countries that do not make a serious attempt to reform their legal orders to comply with international human rights law inevitably will produce refugees. This includes legal orders that justify discrimination based on the above-mentioned grounds, and legal orders that severely restrict fundamental freedoms such as freedom of expression , freedom of assembly and political participation. Often such restrictions come hand in hand with strict enforcement and persecution, for example as crimes against the state, either legally or extra-legally.
By forcing members of their own population to flee their country and seek refuge in other countries, the legal orders of source countries cease to be merely a domestic matter. They are translated into an international matter due to the border-crossing effects, which are painfully human in nature. This requires global attention, and it requires the attention of international refugee law.
The Organization for Security and Cooperation in Europe (OSCE), which has recently been thrust in the news in light of recent events in Ukraine, has had a productive spring. The Organization, founded in 1975 out of a conference in Helsinki, is the world’s largest security-oriented intergovernmental organization, with approximately fifteen mission offices. Almost twenty years after the close of the conflict in the Former Yugoslavia, the OSCE Mission to Bosnia and Herzegovina’s Rule of Law Unit has recently released a report detailing progress the country has made in prosecuting war crimes cases involving sexual violence. In addition, the Mission recently released a groundbreaking interactive war crimes map.
The report, titled “Combating Impunity for Conflict-Related Sexual Violence in Bosnia and Herzegovina: Progress and Challenges,” is available in both Bosnian and English. It focuses on the prosecution of wartime crimes of sexual violence committed against an estimated 20,000 women, and countless men and boys during the 1992-1995 conflict in the former Yugoslav state. The report examines the prosecution of wartime sexual violence during the period from 2005 to 2013 and provides a background on international jurisprudence on rape and sexual violence more generally. It also describes the establishment of certain forms of sexual violence as war crimes, crimes against humanity, and genocide within the Bosnian national legal framework. Moreover, the report details the Bosnian special evidentiary rules governing sexual violence cases and examines the practice in both Bosnia’s high State Court, as well as the regional cantonal courts. The report also includes several annexes that set forth the number of sexual violence cases charged, as well as a list of completed and ongoing cases involving wartime sexual violence before the Court of Bosnia and Herzegovina.
In addition to serving as a useful research tool, the report will help ensure that the lessons learned by Bosnia in prosecuting crimes of wartime sexual violence will be available to the world in our efforts to stamp out wartime sexual violence everywhere.
Spring also saw the OSCE Mission to Bosnia and Herzegovina releasing an innovative war crimes map, available here. Also available in both Bosnian and English, the map is an interactive tool containing information on all war crimes cases adjudicated by Bosnian courts since 2003. The map allows users to search by location of the court, or crime. The OSCE explains that the tool is targeted at a “wide audience,” including the media, civil society, academia, and the general public. Christopher Engels, Head of the Rule of Law Unit for the OSCE Mission to Bosnia, recently introduced the mapping project in an interview available here.
As tensions continue to rise in Eastern Europe, it is as important to look back as it is to look forward. National prosecution of war crimes in Bosnia and Herzegovina will continue, but it is important to take a moment to both appreciate and understand the progress made in the prosecution of some of the worst wartimes crimes.
It’s IntLawGrrls’ great pleasure today to the reprint the remarks that Fatou Bensouda, Prosecutor of the International Criminal Court, gave on April 11, 2014, at the capstone event of the weeklong joint meeting of the American Society of International Law and the International Law Association: the gala dinner at which several distinguished jurists were honored. Bensouda, who served at one time as Gambia’s Minister of Justice, became the 2d woman born in Africa to have received the ASIL Honorary Membership (the 1st was Navi Pillay of South Africa, in 2003).
IntLawGrrls were honored to welcome Bensouda as a IntLawGrrl 2-1/2 years ago, when she contributed the speech she delivered the text of the speech she gave when the ICC Assembly of States Parties elected her as the court’s 2d chief Prosecutor in December 2011. As we noted then, she’d already served as Deputy Prosecutor for a number of years. Before that, she was a prosecutor at the International Criminal Tribunal for Rwanda and both a private-sector and government attorney in Gambia.
The ASIL award is the most recent of many she has received; others include the 2008 ICJ International Jurists Award, 2011 World Peace Through Law Award, honorary doctorates from Middlesex University in London and Vrije Universiteit in Brussels, and a 2012 Time magazine listing as one of the world’s 100 most influential people.
Bensouda’s remarks moved the persons present at this month’s ASIL dinner. We are honored now to share them, below, with all our readers:
Ladies and Gentlemen,
Esteemed Friends and Colleagues,
Allow me at the outset to express my most sincere gratitude to the Honors Committee and the Executive Council of the American Society of International Law for awarding me the 2014 Honorary Membership Award.
It is a distinct privilege and an honour to be selected by ASIL, this most eminent institution dedicated to the advancement of international law, for this year’s Honorary Member Award, and to be joining the distinguished group of prior recipients of this award.
There is indeed no finer award than the recognition of esteemed peers for one’s humble contributions to the field of international law, and for this, I am deeply flattered and I thank you.
As I humbly accept this Award, I am reminded of my formative years, when I served as a clerk in the courts of my native home, The Gambia. We all have those moments in our lives; those decisive moments that leave a mark and help us determine our trajectory in our transient earthly existence.
As a young girl, I recall witnessing countless courageous women who were victims of rape as well as other forms of sexual and domestic violence relive their ordeals through the Gambian court system; their agony and suffering in the face of a judicial system and indeed society, which could not fully afford them the protective embrace of the law, are still vivid and etched in my memory. To this day, their plight and cries of injustice are one of the driving forces behind my firm commitment to the pursuit of justice.
At the risk of sounding cliché, I knew from that moment that I desired, indeed that I had a duty to represent such women; I knew from that moment that through the vector of the law, vulnerable groups in society and those whose rights have been trampled upon can and must be protected and afforded a measure of justice. My path had been made crystal clear.
These convictions were only reinforced through my experience at the UN International Criminal Tribunal for Rwanda where my work exposed me to the horrors that unfolded in Rwanda, including the mass rapes and murder of women as part of a deliberate campaign, as well as the unspeakable violence perpetrated against fellow human beings. What transpired in Rwanda in 1994, defied reason, muted morality and tainted the 20th century with the blood of the innocent in one of modern history’s most violent acts of criminality and mass murder. The vice of tribalism in Rwanda and machination of brute slaughter on a mass scale left a permanent scar on the conscience of humanity. One, and indeed the world, cannot remain silent and indifferent in the face of such atrocities.
As ICC Prosecutor, I have done my best and shall continue to do whatever I can to help restore dignity to the shattered lives of victims of atrocities and to give breath to our common yearning for the international rule of law.
Ladies and Gentlemen,
The honour you have so generously bestowed upon me tonight is equally an opportune moment to reflect on the vision that James Brown Scott and Elihu Root had more than 100 hundred years ago when they first conceived this Institution, which today boasts some 4,000 members from more than 100 countries from around the world.
As I accept this Award, I rededicate myself to the mission of these visionaries, to foster the study and practice of international law, and to promote the establishment and maintenance of international relations on the basis of law and blind justice.
At the ICC, we are engaged in translating this vision into reality. As the Preamble of the Rome Statute reminds us, mass crimes threaten the peace, security and well-being of the world. My belief in the power of the law as a potent tool to stop and prevent violence and to pacify communities gripped by conflict remains unshaken.
As Prosecutor of the International Criminal Court, my objectives are to hold perpetrators of the worst crimes of concern to the international community to account, to bring a measure of justice to victims and affected communities, to deter others from committing mass atrocities, and thereby contribute to the goal of ushering in a world free from the unimaginable atrocities that have plagued humanity over millennia.
To be sure, my contribution to this vision may be modest, but it is given with genuine passion and unyielding dedication. It is incumbent upon all of us to stay committed to the vision and objectives of the Founding Fathers of ASIL and of the Rome Statute, notwithstanding the many challenges present. Today, before you, I once again pledge my dedication to achieving this goal, and challenge all of us to do the same.
I would be remiss if I didn’t take this opportunity to express publicly my heartfelt gratitude to my beloved family and cherished friends. Truth be told: if not for their caring support throughout my career, I would not be standing here today. I thank them from the bottom of my heart for their Godly patience with a renewed promise to continue on the same path so as not to let their sacrifice and faith in me to be in vain.
To conclude, let me state that I accept this prestigious award as a reminder of the great obligations we all have to the promotion of international law.
We are living at a turning point in history where the deficits of the past are slowly giving way, through friction, trial, courage, and sacrifice no less, to a more humane and balanced relations amongst and within states.
We are not there yet by any means, but the velocity of change has been fixed towards a more enlightened path for humanity.
Let there be law, the world over.
Thank you for your attention.
Some lawmakers and lobbyists in Japan displayed their distaste for whaling bans this week with a whale-meat eat-in in Tokyo. The Japan Daily Press reported:
‘In an act of defiance against a recent ruling by the International Court of Justice (ICJ) halting the nation’s whale hunts, pro-whaling legislators and lobby group gathered on Tuesday to eat whale meat while pledging to continue what they call one of the country’s centuries-old traditions.’
Stoking these opponents’ appetite was the March 31 judgment in Whaling in the Antarctic (Australia v. Japan: New Zealand intervening). (Prior posts here and here.) The Hague-based court held 12-to-4 that Japan had violated the 1946 International Convention on the Regulation of Whaling by granting permits to harvest 3 species of whales in an area of the seas known as the Southern Ocean Sanctuary. (In yellow on map at right; see p. 3 here.) Japan asserted that a scientific research exception to the Convention’s whaling ban justified the hunts. But a majority of the ICJ disagreed, in a ruling that Rutgers Professor Cymie Payne analyzed in a recent ASIL Insight. (credit for above logo of the International Whaling Commission, which monitors compliance with the Convention)
Yesterday, the Japan Times reported, Japan’s government announced that it would still engage in what it calls research whaling, albeit at a reduced rate and in regions other than the area of concern to the ICJ case. The report indicated that the decision to go forward marked a victory for Japan’s Fisheries Ministry and a defeat for its Foreign Ministry.
Particularly vocal among the opponents of the ICJ’s ruling has been the man who’s served as Fisheries Minister since last December: Yoshimasa Hayashi, a Harvard Kennedy School graduate. Hayashi spoke at the Tokyo banquet on Tuesday. And in a February interview with Japan Times, he explained his position:
‘Japan is an island nation surrounded by the sea, so taking some good protein from the ocean is very important. For food security, I think it’s very important … We have never said everybody should eat whale, but we have a long tradition and culture of whaling. So why don’t we at least agree to disagree? We have this culture and you don’t have that culture.’
Payne’s Insight agreed that, notwithstanding the March 31 issuance of the ICJ’s opinion, resolution of “fundamental cultural conflict[s]” awaits another day.
(Cross-posted from Diane Marie Amann)
The treaty establishing a complaint mechanism for the Convention on the Rights of the Child (“OP3”) entered into force on 14 April 2014. Costa Rica brought the number of ratifications of this Optional Protocol to the required ten, with all but Costa Rica also entering declarations accepting the Article 13 inquiry procedure. An additional 37 states have signed the protocol but not yet completed the ratification process. States parties to the Optional Protocol thus far:
Albania, Bolivia, Gabon, Germany, Montenegro, Portugal, Spain, Thailand, Slovakia and Costa Rica
Under the treaty, the Committee on the Rights of the Child may hear complaints from individual children, groups of children, or their representatives against a state party to OP3 for a violation of the Convention on the Rights of the Child, and for a violation of the Convention’s other two protocols if ratified by that state.
Domestic remedies must have been exhausted or shown to be “unreasonably prolonged or unlikely to bring effective relief.” The complaint must be submitted within one year of the exhaustion of domestic remedies unless it is shown it was not possible to bring the complaint within that time limit. The treaty also contains a follow-up procedure, an opt-out inquiry procedure for “grave or systematic violations,” and an opt-in inter-state complaint procedure.
The treaty specifies that in developing its rules of procedure the Committee on the Rights of the Child is to “guarantee child-sensitive procedures” and include “safeguards to prevent the manipulation of the child by those acting on his or her behalf.” In addition, the committee “may decline to examine any communication that it considers not to be in the child’s best interests.” OP3 Rules of Procedure here.
For a comparison of this OP with the complaint procedures of the other UN human rights treaties, see this comparison chart developed by the Child Rights International Network (CRIN). For additional resources on OP3, see this toolkit and annotated guide.
WASHINGTON – The President of the International Court of Justice spoke for a banquet room full of women and men yesterday when he said, “I am just here to share in the joy of my colleagues.” The colleagues of whom ICJ President Peter Tomka spoke were Judges Joan E. Donoghue, Julie Sebutinde, and Xue Hanqin. The three women received the Prominent Women in International Law Award during the Women in International Law Interest Group luncheon, a highlight of every American Society of International Law annual meeting. As a special treat, retired U.S. Supreme Court Justice Sandra Day O’Connor dropped in to congratulate what she called “the women’s division” of the World Court bench.
Each of the honored judges made brief but inspiring comments.
Judge Donoghue, a career U.S. State Department lawyer before she joined the ICJ in September 2010, focused her comments on gender disparity in international law. In a recent three-year period, “93 percent of the arguments judges of the ICJ heard came from men,” Donoghue said, citing “A Study of Lawyers Appearing before the International Court of Justice, 1999-2012,” a forthcoming European Journal of International Law article by Cecily Rose, an IntLawGrrls contributor, and Shashank Kumar. In calling for greater diversity, Donoghue reasoned:
‘We are a world court, and international law in the main is for the world.’
Flashing a broad smile, Judge Xue said, “Indeed, this is a great honor and privilege to receive this award. It’s really like an Oscar.” Xue, a former diplomat and law professor in China, is senior to Donoghue on the court by a few months. She recalled two women who had preceded both of them – Dame Rosalyn Higgins (right), whose service from 1995 to 2009 included a term as the ICJ’s President, and Suzanne Bastid (left), an ad hoc judge in the 1980s. Xue said:
‘Today we have so many women on the court not because today women are so much more intelligent, but because many international lawyers, men and women – I want to stress, men and women – have fought so hard for women’s rights.’
She accepted her award “as a tribute to all women legal professionals working in the field of international law, in recognition of their dedication to international peace and development.”
Having three women on the bench, Judge Sebutinde said, “is indeed a pinch-yourself moment for me.” Sebutinde’s pre-ICJ career included service as a judge in her homeland of Uganda and on the Special Court for Sierra Leone. Sebutinde thanked her colleagues Donoghue and Xue, stating, “I don’t think I would even have had the courage to apply if they were not there.” Sebutinde urged the court to increase public outreach. It is particularly important in her own region: “It is no secret I come from eastern Africa where there has been a lot of conflict for decades. The first thing that nations think of for settling their differences is war. It is never the International Court of Justice. So it’s a great responsibility, especially for judges who come from Africa, to sell the court to our part of the world.”
Adding their own words were audience members – judges, law students, law professors, law librarians, and practicing lawyers – who took part in WILIG’s introduce-yourself tradition. Among them was International Criminal Court Prosecutor Fatou Bensouda, who recalled that as a young girl in Gambia, she had felt “helpless” after trying in vain to get police to protect a relative who was suffering domestic violence. “That is why I went to law school,” said Bensouda, another IntLawGrrls contributor. With reference to her current work, she added, “There must be accountability for those crimes, those who perpetrate those crimes. There must be rule of law.” Meanwhile, Washington-based attorneys Lucinda Low and Jennifer A. Hillman (a former member of the World Trade Organization Appellate Body) urged “constant vigilance” to ensure that once earned, gains in women’s participation are maintained.
A University of California-Davis Law student who hails from Kazakhstan summed up the celebratory spirit. Aigerim Dyussenova, known to her new WILIG friends as Aika, proclaimed:
‘This is the happiest day of my life.’
(In photo at top by IntLawGrrl Fionnuala Ní Aoláin, , IntLawGrrls and WILIG Co-Chairs Clara Brillembourg – a cardboard cutout of foremother Eleanor Roosevelt behind her – and Christie Edwards address the luncheon audience. Looking on are, from left, Judges Xue Hanqin, Joan E. Donoghue, and Sebutinde, along with Justice O’Connor. Cross-posted at Diane Marie Amann and ASIL Cables.)