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I am delighted to contribute my first post to this excellent website to let readers know of the final book in a six volume series, Connecting International Law with Public Law, which I initiated as part of my former position as Director of the Centre for International and Public law at the ANU (2006-2015). The first five volumes looks at themes including Sanctions, Access to Medicines, Environmental Discourses, Allegiance and Identity, and Security Institutions and have been published through Cambridge University Press.
The final volume has just been launched and it is of particular interest to the IntLawGrrls community.
I have co-edited this final volume with my friend and former ANU colleague Dr. Katharine Young, who is now at Boston University, and it is called The Public Law of Gender: From the Local to the Global. The volume brings together leading lawyers, political scientists, historians and philosophers.
The book examines the worldwide sweep of gender-neutral, gender-equal or gender-sensitive public laws in international treaties, national constitutions and statutes, and documents the raft of legal reform and critically analyses its effectiveness. In demarcating the academic study of the public law of gender, the book examines law’s structuring of politics, governing and gender in a new global frame.
Of interest to constitutional and statutory designers, advocates, adjudicators and scholars, the contributions explore how concepts such as equality, accountability, representation, participation and rights, depend on, challenge or enlist gendered roles and/or categories. These enquiries suggest that the new public law of gender must confront the lapses in enforcement, sincerity and coverage that are common in both national and international law and governance, and critically and pluralistically recast the public/private distinction in family, community, religion, customary and market domains. The book outlines the common and distinct challenges and issues across various fields and it provides those working with gender-sensitive laws and gender-neutral laws with an assessment of the various ways in which public law interacts with gender, by intent or outcome. It also uncovers the local and global perspectives and the obstacles facing gender equality, equity and parity, showing how traditional agendas of feminist theory now translate in a global legal frame.
I would encourage any one interested in reviewing the volume (or any of the set of six, or indeed the whole set!) for a journal to contact Elizabeth Spicer at Cambridge University Press- espicer [at] cambridge.org.
Professor Kim Rubenstein, ANU College of Law, Public Policy Fellow, Australian National University
On May 30, the Chambres Africaines Extraordinaires (CAE) will announce its verdict in the trial of Chad’s ex-dictator Hissène Habré. Conviction is expected. What will it mean?
The trial of Chad’s Hissène Habré by an ad hoc court in Senegal is making history, and more is expected in the Judgment, scheduled for May 30, 2016. Habré’s trial represents many firsts: it is the first trial of the leader of one country by courts of another, and the first exercise of universal jurisdiction in Africa. The trial is taking place before the CAE, a hybrid judicial product governed by a statute resolved between Senegal and the African Union (AU) employing Senegalese procedure and international criminal law content.
In advance of the expected judgment, this post considers three victors of the CAE, what the trial means for Chad, and what to watch in the post-judgment phase.
The CAE’s Victors:
First, the trial is a triumph for the coalition of international NGOs and Chadian victims that have agitated for recognition of state-sponsored atrocity in Chad since Habré fled in 1990, and perhaps for the broader question of universal jurisdiction more generally. Human Rights Watch’s Reed Brody, a central figure in the effort, deliberately elected Habré’s asylum in Senegal as the place to make this stand, and the trial is the result of two decades of efforts, passing through multiple domestic and international institutions (courts in Senegal, Belgium, Chad, ECOWAS, ICJ and even the fledgling African Court of Human and People’s Rights).
Second, the trial appears to be a triumph for Senegal. Nearly everyone – from foreign diplomats to the proverbial man on the street – describes the trial as “well-run”. The trial stayed within its modest 8.6 million euro budget and, provided the scheduled judgment is issued as predicted, nearly within its timeline. Witnesses appeared when planned and none of them perished or disappeared. Even the resistant Habré was effectively contained: after his first days of bitter resistance, where he fought his guards and was ultimately carried to his seat and physically restrained once there, the Chambers began seating him before the trial began. In this way, Habré’s resistance – beyond his total silence – effectively became a non-news item. Overall, the trial highlighted Senegal’s position as a long, stable democracy with a vital civil society sector, unique to the region. In an African power structure where South Africa is wealthy and Nigeria has vast resources, Senegal has further carved out a position as a regional rule of law expert.
Finally, the trial is arguably a triumph for the International Criminal Court (ICC), though it may be a Pyrrhic. To the degree that the trial follows the tenets underwriting the ICC – the appropriateness of legal responses to atrocity, and the centrality of combating impunity for leaders – the trial can be understood to shore up the ideological foundation of the ICC, and thereby its work. Senegal officially maintains its support for the ICC, and officials at the CAE and within the Ministry of Justice represent the CAE as an institution in line with, not in conflict with, the ICC. On the other hand, the trial can be read as an example of local alternatives to the ICC, and is supported by powers (the AU, Chad) that openly oppose the ICC. Moreover, the lean efficiency of the CAE stands in stark contrast to the ICC’s unwieldy behemoth. For example, the CAE’s four investigative judges, who completed the impressive work of roping international criminal law and the facts (2500 witnesses, 4000 documents) into the 160 page Ordonnance did this by themselves, with no clerks or researchers, over the space of 19 months. The Court Administration, responsible from soup to nuts, from hiring personnel to housing witnesses, has a staff of three. Continue reading
From “casas de la memoria” in Guatemala, Peru, and El Salvador to an upcoming international colloquium in Spain entitled “From Past to Future: Memory and the Process of Transition,” the development of collective memory – an enduring and shared memory of events – is taking center stage as one path toward healing the wounds of a tattered national conscience and preventing the recurrence of mass atrocities. But to what extent is collective memory compatible with judicial systems, which tend to be very individual-centered?
An annual online symposium co-hosted by Opinio Juris and NYU Journal of International Law and Politics (JILP) that went live this morning is exploring this very question. The focus of the symposium is The (Re)collection of Memory After Mass Atrocity and the Dilemma for Transnational Justice, my article that was recently published in Volume 47, Number 4, of NYU JILP.
The impetus for this article arises from the challenges I encountered in working with survivors of mass atrocity. The indivisibility of their memory struck me, as did the healing and bonds it generated. As I began to examine the literature on collective memory, I realized that I was not alone in this observation. Scholars from disciplines ranging from sociology to clinical psychology have written about and documented collective memory and its cathartic effects.
My article explores the tension between the preservation of collective memory and another impulse that follows mass atrocity: the desire for justice. Because many judicial systems are heavily influenced by notions of individualism, they are by design ill equipped to accommodate collective memory. Traditional rules of evidence and professional conduct often exhibit a single-minded focus on individual representation by replicating models that assume one client who autonomously makes legal decisions without consulting his or her community. Bound by these rules, attorneys must disrupt or even dismantle collective memory, thereby retraumatizing their clients.
In this article, I offer an alternative. I believe that human rights attorneys should instead endeavor to preserve and promote collective memory. For that reason, I urge a fundamental rethinking of the law’s preference for individual memory in the context of transitional justice. I believe that the inclusion of collective memory would better serve the goals of transitional justice by facilitating a more complete understanding of the collective harms of mass atrocity and possibly advancing reconciliation.
Today and tomorrow, Opinio Juris will feature comments on my article from four distinguished scholars:
• Mark A. Drumbl is the Class of 1975 Alumni Professor of Law and Director of the Transnational Law Institute at Washington & Lee University.
• Naomi Roht-Arriaza is Distinguished Professor of Law, University of California, Hastings College of Law (and a fellow IntLawGrrl! –Ed.).
• Ruti Teitel is Ernst C. Stiefel Professor of Comparative Law at New York Law School.
• Johan D. van der Vyver is the I.T. Cohen Professor of International Law and Human Rights, Emory University School of Law.
Tomorrow, I will respond to their comments. I welcome you to join the conversation by posting your thoughts here.
Last week, the president of Morocco’s National Human Rights Council (CNDH), Driss El Yazami, publicly released the Council’s most recent report on gender equality and parity in Morocco. The content and recommendations contained therein were broad, addressing a range of issues related to laws affecting women. However, one issue, in particular, received significant attention and has been the subject of heated debate here in the country: inheritance law.
The report comes four years after the adoption of a new, Arab Spring-inspired constitution and ten years after a controversial yet much celebrated reform of the Moroccan Family Code (al-mudawwana). While the CNDH has issued previous reports and memoranda on gender, the CNDH noted that the report was “the first of its kind” to review the efforts and achievements to promote and protect the rights of women in Morocco, but also to present the challenges, gaps, and obstacles that continue to prevent women from enjoying all of their human rights. The report is comprised of three chapters, addressing (1) gender equality and non-discrimination, (2) equality and parity in economic, social, and cultural rights, and (3) public policies and their impacts on women that are most vulnerable to human rights violations, and it offers 97 recommendations intended to ensure the full participation of women in society and their equal access to services and resources. From a human rights perspective, it is impressive.
In a press statement after the conference, El Yazami said, “There will be no democratic progress or fair and sustainable development in Morocco without the empowerment and full participation of women, who make up one-half of Moroccan society.”
The report provided many opportunities for controversy, but its recommendations relating to inheritance generated the most coverage in the Arabic- and French-language press. The report commented on current legislation around inheritance, which stipulates that male heirs receive double that of female heirs, among other such provisions. It then recommended an amendment to the Family Code giving women the same rights as men in the context of inheritance. In supporting its recommendation, the CNDH referred to both national and international law, citing Article 19 of the 2011 constitution and Article 9 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), of which Morocco is a party.
The most trenchant response has come from the Justice and Development Party (PJD), the ruling political party in Morocco since 2011. While they are often referred to as “Islamist,” the party describes itself as a political party with an Islamic frame of reference, an important distinction, I have learned, here in Morocco.
The party has referred to the report as an “unacceptable provocation,” criticizing its perceived overreach into the religious domain. Its principal objection has been that the recommendation to amend the inheritance laws contravenes explicit textual directives in the Qur’an, which the party says are not open to interpretation. Thus, they contend, the recommendation lacks legitimacy and legality in Morocco.
The Max Planck Institute for Social Law and Social Policy in Munich is now accepting applications for
Doctoral Students
in order to set up a research group in the field of Comparative Social Law
with focus on the ‘Adjudication of Social Rights’.
Candidates must be law graduates who have demonstrated academic excellence. The law degree of each candidate must comply with the doctoral admission requirements of the Law Faculty of the Ludwig-Maximilians University of Munich (LMU). Basic command of the German language is therefore required. Candidates should also express an explicit interest in social law. To conduct research in the area of comparative law, each candidate should possess a good command of the language(s) spoken in the country or countries upon which his or her research will focus.
We offer attractive working conditions in a modern, well-equipped institute with a global network. Our institute hosts the world’s largest social law library and is located in the immediate vicinity of LMU and the Bavarian State Library. Successful candidates will receive a scholarship or a contract to finance their doctoral research projects.
The positions are to be filled at the earliest possible date and for the duration of two years with the possibility of extending.
The Max Planck Society would like to increase the percentage of women in areas where they are underrepresented. Women are therefore explicitly invited to apply. Preference will also be given to severely disabled applicants with equivalent qualifications.
For further information please contact Mrs Britta Drentwett or Mrs Verena Lackinger (+49/89/38602-511, or: beckersek@mpisoc.mpg.de).
Please submit your application (including curriculum vitae, copies of your qualifications and references), quoting reference number 01-15, to:
hr@mpisoc.mpg.de, and a copy to: beckersek@mpisoc.mpg.de.
The deadline for applications is 15th March 2015.
CONSTITUTIONAL COURT OF SOUTH AFRICA
INVITATION FOR APPLICATIONS FOR FOREIGN LAW CLERKS
The Justices of the Constitutional Court of South Africa are pleased to invite applications from outstanding recent law graduates and young lawyers interested in serving as foreign law clerks. Candidates may be appointed to start as soon as 1 July 2014.
Background
South Africa continues to be regarded as one of the most intriguing and compelling examples of constitutionalism in the transition to democracy. Its Constitution is viewed as one of the world’s most progressive founding charters.
The Constitutional Court, the country’s highest court, is the guardian of that promise. It has, in a range of ground-breaking decisions, given content to the Constitution’s guarantees by, for instance, ruling the death penalty unconstitutional; upholding full equality for gay and lesbian people; declaring that resident non-citizens are entitled to social benefits; and ordering the government to make anti-retroviral treatment available to pregnant mothers living with HIV/AIDS.
A highly respected commentator, Justice Ruth Bader Ginsburg of the United States Supreme Court, stated the following in the context of a discussion of new democracies:
“I would not look to the U.S. Constitution, if I were drafting a Constitution in the year 2012. I might look at the Constitution of South Africa. That was a deliberate attempt to have a fundamental instrument of government that embraced basic human rights, had an independent judiciary. . . . It really is, I think, a great piece of work that was done.”
More on the position, and instructions for applying, after the jump.
International criminal law lacks a coherent account of individual responsibility. This failure is due to the inability of international tribunals to adequately capture the distinctive nature of individual responsibility for crimes that are collective by their very nature. Specifically, tribunals have struggled to understand the nature of the collective action or framework that makes these crimes possible, and for which liability can be attributed to intellectual authors and leaders. While the ad hoc tribunals have developed doctrines such as joint criminal enterprise, and extended forms of commission (in cases such as Seromba) to classify high-level accused as perpetrators, the theoretical foundations of these doctrines remain contested. The ICC, in contrast, has interpreted commission responsibility under Article 25(3)(a) in light of accepted modes of participation in German criminal law, in particular the concepts of co-perpetration and Organisationsherrschaft (organizational hegemony). However, with the recent Concurring Opinion of Judge Wyngaert in Ngudjolo, the status of indirect and co-perpetration at the ICC has been called into question. Having never been on a firm footing to begin with, a meaningful account of perpetration responsibility for international crimes seems more precarious than ever.
In my article, Individual Responsibility for Mass Atrocity: In Search of a Concept of Perpetration, I take up the challenge of constructing a theory of perpetration that reflects the concerns at the core of responsibility doctrines in highly theorized domestic criminal law systems, and which is simultaneously attuned to the unique features of international crimes. I do so by first identifying elements that distinguish international crimes from their domestic counterparts. I then examine doctrines of principal responsibility in English criminal law, German criminal law, and the jurisprudence of the ICC, to assess whether one can build a case for a more capacious concept of principalship for international crimes by drawing on these doctrines.
I choose to focus on English and German criminal law for several reasons. First, in the field of domestic criminal laws, these legal systems constitute two of the most sophisticated and influential systems representing the common law and civil law worlds respectively. Second, existing modes of responsibility in international criminal law have borrowed heavily from these systems in their jurisprudence. Third, my task is not to advocate the wholesale adoption of any doctrine in any particular legal system, but rather to restructure and combine divergent theoretical perspectives on perpetration responsibility in order to develop a suitable account of the criminal responsibility of senior and mid-level participants in mass atrocity. The attempt, therefore, is to engage fully with domestic criminal law principles while simultaneously capturing the unique features of international crimes.
IntLawGrrls 