International Law Weekend 2019

From October 10-12, 2019, the American Branch of the International Law Association
will convene its annual International Law Weekend (ILW) conference in New York City.
The theme of ILW 2019 is The Resilience of International Law.

ILW 2019 begins Thursday evening, October 10, 2019, at the New York City Bar
Association (42 W. 44th Street) with the Opening Plenary Panel. Moderated by ABILA
President Leila Sadat, speakers include H.E. Judge Kimberly Prost (International
Criminal Court), Mr. Miguel de Serpa Soares (U.N. Under-Secretary-General for Legal
Affairs), and Dr. Christopher Ward SC (President of the International Law
Association). A reception sponsored by Debevoise & Plimpton immediately follows the
Plenary Panel. The conference continues Friday and Saturday, October 11-12, 2019, at Fordham University School of Law (150 West 62nd Street) and features 35 panels on a range of topics. Keynote speakers include Professor William Burke-White (Director of Perry World House, University of Pennsylvania Law School ) and Ambassador Stephen Rapp (Former U.S. Ambassador-at-Large for War Crimes Issues). Multiple panels are
designated for continuing legal education (CLE) credit.

ILW 2019 presents an opportunity for policymakers, practitioners, academics, and
students of international law to take stock of the recent successes and failures of
international law while reaffirming its resilience to tackle future challenges. ILW 2019
seeks to answer whether its theme—The Resilience of International Law—is a question
or an affirmation.
Registration is required to attend International Law Weekend. ABILA offers free
admission to students and charges a nominal fee to others thanks to the generous support of our sponsors. For more information or to register, visit the event website at http://www.ilaamericanbranch.org/ilw.

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Rebuilding the master’s house instead of repairing the cracks: why “diversity and inclusion” in the digital rights field is not enough

Paul Sableman, CC BY 2.0

Silicon Valley is not the only sector with a “white guy” problem: civil society struggles with this as well. Oddly, it wasn’t until I looked at the group photo taken at the Digital Freedom Fund’s first strategy meeting that I noticed it: everyone in the photo except for me was white. I had just founded a new organisation supporting strategic litigation on digital rights in Europe and this had been our first field-wide strategic meeting, bringing together 32 key organisations working on this issue in the region. This was in 2018. In 2019, the number of participants had increased to 48, but the picture in the group photo still was pretty pale, with the team of my organisation accounting for 50% of the 4 exceptions to that colour palet. And while gender representation overall seemed fairly balanced, and there was a diverse range of nationalities present, some voices were noticeably absent from the room. For example, the overall impression of participants was that there was no one with a physical disability attending.* It was clear: something needed to change.

In all fairness, the participants themselves had clocked this as well –– the issue of decolonising the digital rights field had significant traction in the conversations taking place in the course of those two days in February. I have been trying to find good statistics on what is popularly referred to as “diversity and inclusion” (and sometimes as “diversity, equity and inclusion”; I have fallen into that trap myself in the past when speaking about technology’s ability to amplify society’s power structures), both in the human rights field more widely and the digital rights field specifically, but failed. Perhaps I was not looking in the right places; if so, please point me in the right direction. The situation is such, however, that one hardly needs statistics to conclude that something is seriously amiss in digital rights land. A look around just about any digital rights meeting in Europe will clearly demonstrate the dominance of white privilege, as does a scroll through the staff sections of digital rights organisations’ webpages. Admittedly, this is hardly a scientific method, but sometimes we need to call it as we see it. 

This is an image many of us are used to, and have internalised to such an extent that I, too, as a person who does not fit that picture, took some time to wake up to it. But it clearly does not reflect the composition of our societies. What this leaves us with, is a watchdog that inevitably will have too many blind spots to properly serve its function for all the communities it is supposed to look out for. To change that, focusing on “diversity and inclusion” is not enough. Rather than working on (token) representation, we need an intersectional approach that is ready to meet the challenges and threats to human rights in an increasingly digitising society. Challenges and threats that often disproportionately affect groups that are marginalised. Marginalisation is not a state of being, it is something that is done to others by those in power. Therefore, we need to change the field, its systems and its power structures. In other words: we need a decolonising process for the field and its power structures rather than a solution focused on “including” those with disabilities, from minority or indigenous groups, and the LGBTQI+ community in the existing ecosystem.

How do we do this? I don’t know. And I probably will never have a definitive answer to that question. What I do know, is that the solution will not likely come from the digital rights field alone. It is perhaps trite to refer to Audre Lorde’s statement on how “the master’s tools will never dismantle the master’s house” in this context, but if the current field had the answers and the willingness to deploy them, the field would look very different. Lorde’s words also have a lot to offer as a perspective on what we might gain from a decolonising process as opposed to “diversity and inclusion”. While the following quote focuses on the shortcomings of white feminism, it is a useful aide in helping us imagine what strengths a decolonised digital rights field might represent:    

“Advocating the mere tolerance of difference between women is the grossest reformism. It is a total denial of the creative function of difference in our lives. Difference must be not merely tolerated, but seen as a fund of necessary polarities between which our creativity can spark like a dialectic. … Only within that interdependency of different strengths, acknowledged and equal, can the power to seek new ways of being in the world generate, as well as the courage and sustenance to act where there are no charters.”

The task of re-imagining and then rebuilding a new house for the digital rights field is clearly enormous. As digital rights are human rights and permeate all aspects of society, the field does not exist in isolation. Therefore, its issues cannot be solved in isolation either –– there are many moving parts, many of which will be beyond our reach as an organisation to tackle alone (and not just because DFF’s current geographical remit is Europe). But we need to start somewhere, and we need to get the process started with urgency. If we begin working within our sphere of influence and encourage others to do the same in other spaces, to join or to complement efforts, together we might just get very far.

My hope is that, in this process, we can learn from and build on the knowledge of others who have gone before us. Calls to decolonise the academic curriculum in the United Kingdom are becoming increasingly louder, but are being met with resistance. Are there examples of settings in which a decolonising process has been successfully completed? In South Africa, the need to move away from the “able-bodied, hetero-normative, white” standard in the public interest legal services sector is referred to as “transformation“. And efforts to “radically re-imagine and re-design the internet” from Whose Knowledge center the knowledge of marginalised communities on the internet, looking at not only online resources such as Wikipedia, but also digital infrastructure, privacy, surveillance and security. What are the lessons we can learn from those efforts and processes?

This is an open invitation to join us on this journey. Be our critical friend: share your views, critiques and ideas with us. What are successful examples of decolonising processes in other fields that the digital rights field could draw on? What does a decolonised digital rights field look like and what can it achieve? Who will be crucial allies in having this succeed? How can we ensure that those currently being marginalised lead in this effort? Share your views, help us think about this better, so we might start working on a solution that can catalyse structural change.

This post was cross-posted from the Digital Freedom Fund blog

* As observation was the method used for this determination, it is difficult to comment on representation that is less visible than other categories such as religion, socioeconomic background, sexual orientation, etc.

Introducing our new student editors: Jamie Robbins, Ashlye Meyer, and Carly Wheaton

The IntLawGrrls editorial team is delighted to welcome three new student editors to the blog: Jamie Robbins, Ashlye Meyer, and Carly Wheaton.

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Jamie Robbins is a rising 3L at the Benjamin N. Cardozo School of Law. She is interested in human rights law, and, more specifically, the intersection of human rights principles and intellectual property law. This summer she is interning with the Cardozo Legal Institute for Holocaust and Human Rights, where she is working with the Atrocity Prevention Legal Training Project to develop learning materials to advance the teaching of atrocity prevention in law school courses. She is excited to continue working on human rights issues this fall as a student intern with the Benjamin B. Ferencz Human Rights and Atrocity Prevention Clinic.

unnamed-2Ashlye Meyer is a rising 3L at the Cardozo School of Law. She graduated with high honors from New York University with a degree in film and philosophy. This summer she has been working with Cardozo’s Human Rights and Atrocity Prevention Clinic on the Blasphemy Project, tracking how various blasphemy laws comport with international human rights standards. She has also been doing research for constitutional and international law scholar, Professor Deborah Pearlstein. Her own research topics include international human rights, women’s rights, and LGBT issues. She will continue working with the Human Rights Clinic into her 3L year at Cardozo.

FullSizeRenderCarly Wheaton is a second-year law student at Benjamin N. Cardozo School of Law. She is from Florida, and attended Florida State University, where she double-majored in Political Science and Psychology, and became certified in Emergency Management and Homeland Security. Carly has always felt an innate need to advocate for others and promote equality amongst all groups of people, and so she moved straight from her undergraduate university to New York City to begin her law school career. This past summer, Carly interned with a judge in the Matrimonial Part of the New York State Supreme Court. Carly has a passion for family law, but at the end of the day her mission is to ensure that everyone is fairly represented, equally protected and, most importantly, heard. When Carly is not studying the law, her favorite pastime is to play tennis with her father and run philanthropic 5Ks.

Heartfelt welcome!

Now You See It, Now You Don’t: Culture at the International Criminal Court

 ‘An international criminal justice system is an exercise in public international law, comparative law, language, and culture.’ 

(Christopher L. Blakesley, ‘Wrestling Tyrants: Do We Need an International Criminal Justice System?’ (2017) 48 University of the Pacific Law Review 175, 177.)

 

I was pleased recently to contribute a chapter to a publication project out of Utrecht University, based on the important theme “Intersections of Law and Culture at the International Criminal Court”.

My own chapter is based on the findings of an ethnographic research project, begun in 2017, that examines how the ICC addresses the challenges of multilingualism. My research seeks to answer the following questions: 1) How does the ICC funOfficial Opening of the Permanent Premises of the ICCction in a fluid linguistic landscape where a new “situation language” – one relevant to ICC investigations, trial proceedings, victim-related services and outreach activities – can be added at any moment as the Court opens investigations, confirms charges, reaches out to witnesses and affected communities, and carries out trials? 2) How does the ICC handle the special challenges of working with languages of lesser diffusion? 3) How do differences in culture compound those associated with differences in language? And 4) How do language and culture issues play out in day-to-day operations of the Court?

It is clear that the International Criminal Court is an institution characterized by multilingualism at all levels. Not only do staff members themselves hail from diverse language communities, but it has two working languages and the situation languages bring many more modes of communication into the institutional mix.  I argue, however, that while the presence of, and need to communicate in, many languages may be obvious to those involved in the work of the ICC, the multiplicity of cultural understandings and stances that are a corollary to linguistic diversity may be less so.

Through conducting 60 interviews – to date –  focused on language issues, along with observations of trials and other Court activities, it has become obvious that cultural challenges emerge frequently as staff members carry out their diverse roles. Sometimes cultural issues are easily recognizable, for example when witnesses are unable to answer questions about dates or time of year with specificity, or when victims of sexual violence must overcome cultural norms in order to describe their experiences publicly and in detail. Much less recognizable, and sometimes invisible, are the assumptions and understandings inherent in the Court’s own institutional arrangements and the conceptual framework underlying its ‘global fight to end impunity’. Culture tends to be ascribed to people and places in situation countries, while the powerful set of beliefs and practices that shape how the Court conducts its work in The Hague and communicates its messages outward remains under-examined by its very own actors.

My contribution aims to lay bare a broad spectrum of cultural impacts found at the Court, using the perceptions and words of interviewees along with pertinent scholarship and published commentary. It begins by describing the language/culture nexus and establishing a working definition of ‘culture’ for the purposes of the chapter. Subsequent sections illustrate two categories of cultural phenomena that impact the work of the ICC – those that are explicit or largely recognized, and those that are more implicit in that they may pass unnoticed or not be considered cultural at all. The chapter ends by suggesting some basic notions about culture(s) that Court staff members and others involved in the institution’s work would do well to keep in mind as they carry out their various functions.

Readers are invited to read my entire paper here. You can also read an earlier blogpost on this ethnographic project. I welcome all comments and suggestions, as always.

 

Call for Papers: Gender, Peace and Environment

Workshop 9-10th December 2019, Universidad del Rosario, Bogotá

Resolution 2422 (2015) of the WPS resolutions and General Recommendation No 37 by CEDAW both indicate that the degradation of the environment and climate change differentially impact women and girls. In other words, the interrelation between the environment/nature, climate change, and the gendered dimensions of conflicts must be analysed in order to understand and develop an agenda for change to secure gender equality and promote sustainable peace.

Colombia, and Latin America more generally, are contexts in which the exploration of these relationships is particularly urgent and relevant. In the case of Colombia, the implementation of the peace process with the Fuerzas Armadas Fuerzas Armadas Revolucionarias de Colombia – FARC- and the demobilisation of its members has resulted in challenges and opportunities with respect to the environment.

The purpose of this workshop is to explore the relationship between the environment, nature, armed conflict, gender and gender-based violence in the context of the WPS agenda. This workshop aims to explore gender, peace and the environment through a number of different perspectives including academic research, activism and legal strategic litigation, with a particular emphasis on Colombia and Latin America.

Key questions for exploration include:

  • What is the relationship between gender, the environment/nature and peace?
  • What role do women play in environmental protection/defending nature?
  • What gendered obstacles do environmental protectors face in the context of armed conflicts?
  • What place and space does nature/environment have in the Women, Peace and Security agenda?
  • What is the relationship between sustainable development and the political economy?
  • What relationships exist between land rights, sustainable development and armed conflict?
  • What do we understand by environmental reparations?
  • What does effective access to justice mean with respect to gender, peace and the environment?
  • How can we queer nature and how might this relate to sustainable peace?

Papers are encouraged to consider one or more of these key questions, and both theoretical and empirical papers are welcome. Abstracts of no more than 300 words should be sent along with a biography of no more than 1 page.

Abstracts in Spanish or English are welcome. The workshop will be for two days and is designed with one day each of discussion and presentations in each language.

More details on the workshop and the call for papers is available in Englishand Spanish.

Deadline for Abstracts: September 9th, 2019. Participants selected will be informed by September 26th, 2019. 

Please send abstracts to linam.cespedes@urosario.edu.co, include in the subject heading “Abstract Workshop Gender, Peace and the Environment”.

Workshop dates: 9 – 10th December 2019

Location: Universidad del Rosario, Bogotá (Colombia)

Funding: Limited standard class travel fares and accommodation may be available for those are are invited to present and would otherwise be unable to participate. This is only available to those participants within Colombia and is very limited.

This workshop is co-hosted by the Universidad del Rosario and the Consortium on Gender, Security and Human Rights and forms part of the project for a Feminist International Law of Peace and Security, which is funded by the Arts and Humanities Research Council and the British Academy Small Grant Gender, Nature, and Peace.

Read On! Protection of Refugees and Migrants against Xenophobia

In response to the terrorist attack against Mexicans and Mexican Americans on August 3, 2019, the UN Secretary General stressed “the need for all to work together to counter violence rooted in hatred, racism, xenophobia and all forms of discrimination.”[3] The transnational evolution of xenophobia requires a committed response by the international community. My article in the latest edition of the Brazilian Yearbook of International Law discusess the rise of nativism, populism, and authoritarianism in the world and the situation of foreigners and persons perceived to foreigners, including refugees and IDPs. There are currently three scenarios faced by refugees and IDPs: protracted camps/warehousing, urbanization, and detention. This article outlines the range of human rights violations and accountability gaps in each of the three scenarios faced by refugees, arguing that these are examples of structural xenophobia. It discusses normative gaps within international law and analyzes the role of compliance mechanisms in the UN Human Rights Treaty Body Regime and regional human rights bodies. The article underscores the risk of inaction by the international community in the face of discrimination against refugees, using the case study of Norway.  The conclusion suggests a way forward by supporting the proposal for a new Protocol to the UN Convention on the Elimination of Racial Discrimination addressing xenophobia.  The Yearbook is available here


[1] See UN General Assembly Resolution 73/262, A Global Call for Concrete Action for the Total Elimination of Racism, Racial Discrimination, Xenophobia and Related Intolerance, A/Res/73/262 (15 January 2019).

[2] https://www.theguardian.com/us-news/2019/aug/04/mexico-legal-action-us-terrorism-amlo

[3] SG/SM/19689 5 August 2019

The Death of ‘Brother No. 2’, the Impact of the Death of an Appellant and the Risks of Justice Delayed

On the 4th August 2019, one of the former senior leaders of the Khmer Rouge, Nuon Chea, passed away at the Khmer Soviet Friendship Hospital. The third to die of five individuals accused of international crimes by the Extraordinary Chambers in the Courts of Cambodia (ECCC), his death raises important questions about the implications of the death of an appellant, as well as drawing attention to the threat of justice delayed becoming justice denied for victims of mass atrocities.

Nuon Chea, or ‘Brother No. 2’, was second in command after Pol Pot in leading the Khmer Rouge, a regime which held power in Cambodia from 1975-1979. Nuon Chea was considered a significant ideological driver of the regime, and one of those primarily responsible for the forcible restructuring of Cambodia in pursuit of an agrarian revolution.  These policies led to the deaths of an estimated 1.7 million people, through starvation, disease and overwork, as well as through the deliberate execution of anyone considered a threat to the regime.

The regime was followed by continued conflict, a period of amnesties and a policy of ‘burying the past‘ for many years. However, after several further years of negotiations between the UN and the Royal Government of Cambodia, an agreement was reached enabling the creation of the ECCC, established in 2006 to prosecute crimes perpetrated by senior leaders and those most responsible for crimes perpetrated during the regime.

Nuon Chea was arrested on 19 September 2007. Alongside Ieng Sary, Ieng Thirith and Khieu Samphan, he faced charges of crimes against humanity, grave breaches of the Geneva Conventions of 1949, and genocide. The case, known as Case 002, had been called “the most important case in the international legal history since Nuremberg” as it indicted all the four surviving senior leaders of Democratic Kampuchea.

Given the complexity of the trial, and concerns over the advanced age of the defendants, this trial was split into a series of sub-trials, and the first judgment was delivered on 7 August 2014, nearly forty years after the Khmer Rouge came to power. By this point, the number of defendants had already been halved, following the death of Ieng Sary in 2013 and the staying of proceedings against Ieng Thirith as a result of her degenerative mental health.  The remaining defendants received convictions and life sentences for crimes against humanity relating to forced transfers and the killing of the former regime’s soldiers.  On 23 November 2016, the Supreme Court Chamber quashed part of the convictions but affirmed their life imprisonment. 

The Case 002/02 judgment, significantly broader in scope, was delivered on 16 November 2018, convicting Nuon Chea and Khieu Samphan of grave breaches of the Geneva Conventions, a range of crimes against humanity (notably including the regulation of marriage), and the genocide of the ethnic-Vietnamese and (in the case of Nuon Chea) the Cham Islamic minority group.

This conviction was praised by commentators for its significance for the victims of the regime and for international criminal law more generally. However, both defendants appealed the conviction on multiple grounds, raising important questions with regards to whether Nuon Chea’s appeal can continue and the status of his conviction if it cannot.

The Court may find that without an appellant, the appeal cannot continue.  Such an approach would be in keeping with that of the International Tribunal for the Former Yugoslavia, where the Appeal Chamber in the Delic case found that as there was no appellant, no appeal could be made, and the trial judgment would therefore stand.

However, the ECCC Internal Rules specify that ‘The convicted person or, after his or her death, the spouse, children, parents, or any person alive at the time of the person’s death who has been given express written instructions from the convicted person to bring such a claim…may apply to the Chamber to revise the final judgment” on certain limited grounds, relating to the discovery of new evidence or serious misconduct on the part of a judge. While relatively narrow, this may suggest that at the ECCC, the death of an accused does not preclude the continuance of an appeal.

Domestic case law is also varied on this point, and it could be argued that allowing the appeal to continue would constitute a valuable way of protecting the rights of a defendant to clear his name, enhancing the legitimacy of the judgment, and potentially facilitating the ‘truth-telling’ goals of the tribunal by allowing findings to be tested further. These latter arguments are particularly pertinent given the wide-ranging grounds of appeal submitted by his defence team, some of which challenge the impartiality and legitimacy of the Trial Chamber itself, and which differ significantly from those put forward by Khieu Samphan’s team.

If the appeal does not continue, then the status of Nuon Chea’s conviction is unclear. Under Article 35 new of the Law on the ECCC, the accused shall be presumed innocent as long as the court has not given its definitive judgment. If the trial judgment is considered the definitive judgment, then Nuon Chea’s conviction may stand. However, if the definitive judgment is considered the final appeal judgment, then it may be that the trial judgment is unable to be considered legally sound, meaning Nuon Chea may be presumed innocent until/unless his appeal is heard. In such a scenario, the ECCC’s legal recognition of the genocide perpetrated against the Cham community, and the role of Nuon Chea in a range of additional mass atrocities, would lose its legal force.

Regardless of the outcome, the death of Nuon Chea prior to his appeal being completed draws attention to the risks for the rights of both defendants and victims in delaying the delivery of justice. The ECCC has continued to be subjected to sustained critiques for the time it had taken to complete its cases, resulting in many victims, as well as defendants, dying before judgments were delivered. During my research into the perspectives held about the Court amongst survivors of the regime, the issue of expediency and a wish for closure was raised time and again. I was repeatedly asked when the Court would finish its work, and attention was drawn to the advanced ages of the accused. The depletion of the number of defendants was often attributed to the Court’s slow progress, and many respondents voiced their frustration at having had to wait so long, and their fear that the other defendants would also die, meaning that the Court ‘will have been a failure’. Such views are natural given the several decades that have passed since the Khmer Rouge inflicted years of hardship and suffering on Cambodian society, and highlight the profound importance of delivering timely responses to mass atrocity.