Transitions

On behalf of the IntLawGrrls editorial team, I’m delighted to announce several transitions at IntLawGrrls this week.  We have three terrific senior editors joining our team: Danielle DerOhannesian, who has been serving as Submissions Editor since October 2016, as well as IntLawGrrls Jocelyn Getgen Kerstenbaum and Mallika Kaur.  Carla Cortavarria, who has been a Student Editor since last July, will be stepping into fill the Submissions Editor position.  And, after eleven wonderful years, I will be stepping down from the blog and leaving it in the capable hands of our expanding editorial team.  Thanks to our bloggers and readers for all of your support over the years!

dDanielle DerOhannesian will intern this fall in The Hague with Global Rights Compliance before joining the Philadelphia District Attorney’s Office as an Assistant District Attorney in November.  You can find her IntLawGrrls posts here.

fullsizeoutput_e5.jpegJocelyn Getgen Kestenbaum is Assistant Clinical Professor of Law at the Benjamin N. Cardozo School of Law where she directs the Human Rights and Atrocity Prevention Clinic. She first blogged for IntLawGrrls just over a year ago.  You can find her IntLawGrrls posts here.

Mallika Kaur, who first blogged for us five years ago, is a lawyer and writer who focuses on international human rights with a kaur_mallikaspecialization in gender and minority issues. In India, Kaur has worked on a range of issues including farmer suicides, female feticide, and transitional and transformative justice. In the United States, she has worked on issues including post-9/11 violence, policing practices, political asylum, and racial discrimination. Kaur has worked with victim-survivors of gendered violence since 2003, including as a crisis counselor, expert witness on family violence, co-founder of the community-based non-profit, Sikh Family Center, and as a pro bono attorney at CORA, a domestic violence agency in the Bay Area, California, where she previously was a Staff Attorney. Working with local civil society, academic institutions, advocacy organizations, and government agencies, she combines research, advocacy, scholarship, and the law as an approach towards sustainable change. She was the Director of Programs for the initiative on Armed Conflict Resolution and People’s Rights, UC Berkeley (2012-2015). She has a Master in Public Policy from Harvard Kennedy School and a JD from Berkeley Law, where she is a Lecturer. Kaur often writes for media and academic publications and is a regularly invited speaker and trainer on Gender Justice, Trauma-Informed Lawyering, Cultural Humility, South Asia, and International Human Rights.  You can find her IntLawgrrls posts here and here.

fullsizeoutput_b4Carla Cortavarría is a rising 3L at Temple University Beasley School of Law. She is passionate about international human rights, specifically in the region of Latin America, as well as refugee law and children’s rights. Prior to law school, Carla interned at the International Rescue Committee (IRC) where she taught cultural-orientation classes to asylees and newly arrived refugees, and tutored refugee children. Last summer, Carla interned at the International Association of Women Judges (IAWJ), a non-profit membership organization that strives to advance human rights in various parts of the world through its judicial members. She provided support to IAWJ’s Dominican Republic and Haiti programs on gender-based violence, human trafficking, and judicial corruption. This summer, she is excited to be interning for the United Nations High Commissioner for Refugees (UNHCR) in their Caribbean Protection Unit. This past year at Temple, Carla was Vice President for both the International Law Society and the Latin American Law Students Association. She also served as a Staff Editor for the Temple International and Comparative Law Journal (TICLJ) and focused her legal comment on crimes against humanity in Venezuela. As a 3L, she will be a Lead Research Editor for TICLJ. Her goal after graduation is to work in an international or public interest organization in Washington, DC. Carla is originally from Lima, Peru, but grew up in the DC Metro area.  She speaks fluent Spanish, advanced-level French, and some Portuguese.  You can find her IntLawGrrls posts here.

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Trump Trade Agenda

The Trump trade agenda is in the news. Since January (2018), the Trump Administration has imposed tariffs on steel and aluminum imports, started a trade war with China, and re-negotiated the 6-year old Korea-US Free Trade Agreement (KORUS). The Administration also continues NAFTA re-negotiations and most recently is considering having the U.S. re-join the Trans Pacific Partnership (TPP) Agreement left within three days of Trump taking office.

Trade wars and trade deals appear contradictory. Can we look to some coherent agenda to explain these seemingly disparate actions? The Trump trade agenda is enunciated in its 2018 Trade Agenda Report, sent to Congress in February (2018).

The Trump Trade Agenda rests on the following five pillars:

Supporting US National Security: US trade policy and trade deals must –

  • Help to build a strong American economy, first and foremost;
  • Aggressively defend US national sovereignty in the face of multilateral trade obligations;
  • Respond to economic competitors, notably China;
  • Preserve the US lead in research and technology; and
  • Cooperate with countries that give the US reciprocal treatment and act to defend US interests against those that do not.

Strengthening the U.S. Economy: Key elements of this pillar are –

  • Anticipated benefits to corporations of the new tax regime; and
  • Reduction in regulatory burdens imposed by trade policy;

Negotiating Better Trade Deals:

  • Renegotiate NAFTA, KORUS, and any other trade deals the Administration considers bad for American workers and farmers with a view to –
  • Achieving outcomes that improve U.S. export opportunities and reduce the US trade deficit;
  • Resolving outstanding implementation issues that harm or undermine U.S. interests and U.S. export potential;
  • Rebalancing commitments on tariffs necessary to maintain a general level of reciprocal and mutually advantageous commitments under the agreement;
  • Reducing and eliminating barriers to exports of U.S. made motor vehicles and motor vehicle parts; and
  • Improving other terms to ensure the benefits of the agreement are more directly supportive of job creation in the United States.
  • Negotiate new trade agreements with other countries, noticeably, the United Kingdom and the countries of the Trans-Pacific; and
  • Focus on increasing US agricultural exports.

Enforcing and Defending U.S. Trade Laws:  Key elements of this pillar include –

  • Aggressive use of all tools available under US trade law to address violations;
  • Imposition of available remedies, as appropriate, including suspension of trade agreement concessions, imposition of tariffs, negotiation to remove the offending practice or for compensatory benefits to the United States, fees or restrictions on services; and
  • Investigation of China’s acts, policies and practices related to technology transfer, intellectual property, and innovation.

Strengthening the Multilateral Trading System: Key actions to be taken under this pillar include –

  • Vigorously defend use of US trade laws against complaints brought at the WTO, notably by China, Canada, the EU;
  • Aggressively challenge other countries’ trade laws and policies that negatively impact US exports, notably China, Canada, and India;
  • Address US concerns regarding the WTO Appellate Body, which makes final decisions on disputes brought before the organization;
  • Work with WTO Members who are ready and able to negotiate free, fair and reciprocal agreements commensurate with their status in the global economy;
  • Work to change how the WTO approaches questions of development, so that emerging economies like Brazil, China, India, and South Africa do not receive the same flexibilities as very low-income countries; and
  • Pursue negotiations on agriculture, fisheries subsidies, and digital trade at the WTO.

These pillars weave together a protectionist, America-first agenda that provides context for the seemingly disparate actions of trade wars alongside trade negotiations.

The strong anti-China bias exists because China is undoubtedly playing by its own set of rules, violating the spirit, if not the letter, of international trade law. It is not clear, however, that imposing tariffs is the solution.

More importantly, this protectionist agenda ignores the reality that all countries negotiate from their perceived national interests as well. This results in a balancing of compromises – give and take.

For example, under the re-negotiated Korea FTA, the U.S. got to export more cars, but Korea won partial exemption from the steel tariffs. NAFTA re-negotiations are struggling to address unreasonable US demands. The United Kingdom, which is considered to be in a weak negotiating position as it also negotiates its new trading landscape outside of the EU, probably does not plan to roll over to aggressive US proposals either.

Then, there is the interconnectedness of today’s global markets. US imposition of tariffs on China threatens US manufacturers who rely on imported inputs. China’s retaliation threatens the livelihood of US farmers dependent on exports to the Chinese. Which is why the Administration may be exploring another approach – coming full circle to re-join the rejected Trans-Pacific Partnership (TPP), a 12-nation pact covering 40 percent of the global economy envisioned by the Obama Administration as a multilateral counterweight to China. The other 11 countries have moved on to conclude the Comprehensive & Progressive Agreement for Trans-Pacific Partnership (CPTPP) so this time, the U.S. would be the one negotiating its way back in.

(Crossposted from DevelopTradeLaw.)

Women and People of Color Also Know Stuff

The project “Women Also Know Stuff,” which makes it easier for the media to find informed women to speak on public affairs topics, has inspired the creation of a new project: “People of Color also Know Stuff.”  While mostly focused on political science, legal experts and interdisciplinary scholars may also be permitted to join the ranks of listed experts.

Check out the two projects, and consider listing yourself on these portals:

Women also know stuff: https://womenalsoknowstuff.com/

People of Color also know stuff: https://sites.google.com/view/pocexperts/home?authuser=0

 

Syria and the Limits of International Law

Earlier this week, the Assad regime most likely used chemical weapons against its own population in Syria. Up to 500 people may have been affected by this chemical attack, and approximately 75 individuals may have died. Western media reported that most western nations attributed the attack to the Assad regime, and although Assad himself has denied responsibility, this allegation appears credible, in light of Assad’s track record of using chemical weapons. Although this incident may have constituted a violation of jus in bello, and although this incident may be morally abhorrent, international law does not actually provide other nations with tools for a direct (military) response. The Syrian situation thus illustrates the limits of international law, which one may either accept as inevitable and necessary in a sovereignty-based system of international legal rules, or, which one may attempt to eliminate by changing rules of international law. This post will briefly discuss these options, in light of the ongoing crisis in Syria.
First, even in a dire situation like Syria, international law does not actually authorize other nations to use force against the offending regime. Our current international legal order is based on state sovereignty, and on the notion that such sovereignty may be breached in exceptional situations only. Using force against a sovereign nation may constitute the most supreme breach of state sovereignty, and under international law, force may be used against sovereign nations in two limited instances: pursuant to Security Council authorization and/or in self-defense. International law does not authorize nations to use force against another sovereign nation in other situations – no matter how devastating and limiting such a rule may be. For example, international law does not authorize the use of force against a sovereign nation if such a sovereign nation is experiencing a humanitarian catastrophe, caused by its own leadership. Thus, in a situation like Syria, where the country’s own regime is killing and wounding its own population, international law does not provide other nations with authorization to use force – unless such other nations can obtain Security Council approval or can demonstrate that they are acting in self-defense. As another example, international law does not authorize the use of force against a sovereign nation, although the latter may have used internationally-prohibited weapons, and may have committed violations of jus in bello. Thus, the alleged use of chemical weapons by the Assad regime against Syrians does not provide justification, under international law, for the use of force by other nations against Assad. Additionally, even in situations where the Security Council is deadlocked and unlikely to authorize the use of force against a sovereign nation which has engaged in brutal tactics internally, international law does not step in to provide alternative legal basis to other nations who may wish to use force against the offending nation. Assad is thus safe from external interference, from the perspective of international law, so long as Russia/China continue to veto Security Council resolutions against Assad, and so long as he does not attack other countries.
The situation in Syria is akin to that in Rwanda in 1994, where the international community did not interfere, and where hundreds of thousands of civilians were slaughtered over a brief period of time. In Rwanda, like today in Syria, international law did not provide justification toward the use of force by any other nation, and Rwandan leadership was able to get away with its genocidal policy for several months. The situation in Syria is similar to that in Kosovo in the late 1990s, when Serbian president Milosevic committed atrocities against ethnic Albanians. In the case of Kosovo, however, the international community acted, through a series of air strikes against Serbia in the spring of 1999, instituted by NATO despite lack of Security Council approval. From the perspective of international law, international community’s response was correct in Rwanda and illegal in Kosovo. From the perspective of international law, international community may not do anything in Syria and may not use force against the offending Assad regime. This conclusion, although morally questionable, is based on state sovereignty, which forms the basis of our current international legal order. State sovereignty thus shields regimes from interference, even if they commit atrocities, violate jus in bello, and engage in the most reprehensible behavior (absent Security Council involvement). And, if not changed, our international legal order will continue to insulate abhorrent state policies and practices, so long as these remain internal and so long as the Security Council remains deadlocked. International law is of extremely limited utility in situations like Rwanda, Kosovo, and Syria, and its limits underlie its own weakness.
Second, if one is dissatisfied with the current international law rules, how could such rules be altered, to provide a better response in situations like Syria, of internal humanitarian crises and Security Council deadlock? Several changes are theoretically possible. First, one could retain the sovereignty-based system of international law but remove veto power for any nation from the Security Council. One could require that all Security Council resolutions be passed by a super-majority of ten or twelve nations, to ensure that authorizations for the use of force against a sovereign nation face strict scrutiny and require super-majority consensus within the United Nations. Second, one could adopt a regional sovereignty-based system, by allowing regional organizations, such as NATO, to use force against their own member states. This system would allow for regional military responses within regional institutional structures; such regional responses could get around Security Council deadlock and could alleviate humanitarian crises in places like Syria. Under this regional sovereignty system, military responses, such as the 1999 NATO-led air strikes against Serbia, would become lawful. Third, one could legalize humanitarian intervention, as a third exception to the general ban on the use of force. Harold Koh has written about this and has proposed a normative framework for humanitarian intervention; I have also written about this and have argued for a similar set of rules. A true humanitarian intervention, organized by a coalition of states, pursuant to a concrete set of humanitarian goals and limited in scope and duration could become part of our international legal order, while offending state sovereignty in the most justified manner. It may be argued that states which offend international legal norms waive their sovereignty and no longer deserve the protection of the same norms; legalizing humanitarian intervention against the most rogue regimes, such a Assad’s, would only minimally offend the general notion of state sovereignty as this concept would continue to apply for all other law-abiding states. A modified system of international legal rules could preserve state sovereignty while allowing for a more robust (military) response in situations of humanitarian catastrophe, like the one ongoing in Syria.
In sum, international law in its current iteration remains powerless to impose true military restrictions on leaders like Assad. Several western nations have already discussed the possibility of staging a military intervention against Assad; such an intervention, absent Security Council authorization, would be illegal under international law. Intervening nations could choose to ignore international law and act in a military manner, in the face of the dire situation in Syria. This could, in turn, weaken our international legal order, by exposing its limitations and by demonstrating that nations are willing to ignore international law, because this law imposes unreasonable restraints. However, international law, if modified, could contain legal tools that would enable nations to lawfully intervene against leaders like Assad. This solution may be preferable in the long-term, as it would allow lawful state action against offending regimes, and as it would allow international law to develop small limitations on state sovereignty, for the sake of protecting populations from harm directed at them by their own leaders. International law’s limits are underscored by the situation in Syria. In the future, however, international law does not have to remain powerless.

International Criminal Court poised to interpret the crime of ‘gender-based persecution’ for the first time

20 years after the ICC was established, the Court is poised to rule on the meaning of one of the most controversial words in its statute: ‘gender’.

Until recently, it didn’t look as if the Court would be interpreting the g-word any time soon. But in November 2017, Prosecutor Fatou Bensouda cited evidence of gender-based persecution in her request to open an investigation in Afghanistan, suggesting that the Pre-Trial Chamber would need to interpret this crime in the foreseeable future.

Jurisprudence on this point looks even more imminent now, following the arrest of Al-Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, who the Prosecutor alleges was the chief of the Islamic police in Timbuktu, Mali, in 2012 and 2013.

Continue reading

Sexual violence in Syria: acting on what we know

Last month marked the seventh anniversary of the Syrian uprising. The Syrian people were late in joining the Arab Spring and within months after they did civil unrest descended into war. As the years go by, the range of atrocities committed in Syria appears to defy those covered by international law. There are arbitrary arrests, torture and deaths in detention, and use of civilians as hostages. The most reported incidents are use of chemical and explosive weapons in civilian areas, starvation of besieged populations and the targeting of hospitals, schools and markets to force surrender.

Perhaps unsurprisingly, in comparison the use of sexual and gender-based violence has received little attention. This is in part because of the inherent difficulties in documenting sexual violence – chief among them is under- and delayed reporting due to reluctance of survivors to share experiences that could lead to rejection by their families and communities. It is also because other tactics of war, like aerial and ground bombardments, are more lastingly visible and more easily documented for that reason. By and large, documentation of sexual violence, in any context, relies on victim and witness testimony. Bombardments, on the other hand, are documented using supporting material such as photographs, videos, and satellite imagery that corroborates witnesses’ accounts. Crucially, witnesses of bombardments can speak without fear of stigma or feelings of shame.

Challenges in documenting sexual violence explain why it has taken so long for comprehensive overviews of the situation on the ground to become public. While as early as September 2011 reports emerged of Syrian Government forces committing sexual violence during home raids, it is only in the last year that in-depth accounts on the extent and use of sexual violence in Syria were published. In 2017, investigative journalist Marie Forestier published a report on rape as a tactic of war by the Assad regime. On the occasion of the seventh year of the uprising, the Syria Commission of Inquiry published a report covering sexual and gender-based violence by a number of perpetrators, including detailed violations by Government forces and associated militias.

Together, these reports document the use of sexual violence since the 2011 demonstrations up to last year. They show that the use of sexual violence has changed – but not stopped – throughout the conflict. Initially, Government forces conducted mass arrests of demonstrators and their supporters in their homes and at checkpoints. Most of those arrested were men and boys. When the wanted males were not found, women and girls were arrested to pressure their male relatives to surrender. Female protestors and activists were also arrested. Sexual violence occurred from the moment of arrest and throughout detention. In Government detention facilities, women and men were raped to force confessions and to provide information, with men most commonly raped with objects. Some women were gang raped, others were raped repeatedly by different officers. On occasion, senior officers raped detainees and in other instances gave permission for their subordinates to do so. There is no reported instance of officers being disciplined for their acts. Continue reading

Introducing Lina Biscaia

Lina Biscaia

It is our great pleasure to introduce our new IntLawGrrls contributor Lina Biscaia! Lina is the former Acting Chief Analyst of the UN Commission of Inquiry on Syria. She worked as an Analyst in the Investigations Divisions of the International Criminal Court and the UN International Criminal Tribunal for the former Yugoslavia. A qualified barrister, early in her career Lina worked as a lawyer at the European Court of Human Rights and as a legal officer for the Special Panels for Serious Crimes in Timor-Leste. Lina has also worked in the field of rule of law and human rights with the International Commission of Jurists, the Organisation for Security and Cooperation in Europe in Bosnia and Herzegovina, and the UN Mission in Afghanistan. Currently she is the Coordinator of the Human Rights Reporting Unit of the UN Mission in Haiti.

Heartfelt welcome!