Ethics and the Law: Journalists and International Criminal Tribunals (part 1)

Seyi Rhodes Journalists Event

Seyi Rhodes recalls giving evidence at the Gbagbo trial before the International Criminal Court.

LONDON – Can journalists give evidence at international criminal trials without compromising their objectivity? What is the probative value of journalistic evidence? What does it feel like to be cross-examined by Slobodan Milošević?

These were some of the questions discussed at the event Ethics and the Law: Journalists and International Criminal Tribunals hosted on 25 October at London’s Frontline Club. The fourth of a series of events on “Ethics and the News”, the panel discussion was organised by the Ethical Journalism Network and Global Rights Compliance, and chaired by Channel 4 Head of News and Current Affairs Dorothy Byrne.

The toll it takes to testify

The event started with the screening of a short, harrowing extract of the 1992 documentary Omarska’s Survivors: Bosnia 1992.

As the lights come back on, we hear from the first panelist, former Guardian and Observer reporter Ed Vulliamy. He is familiar with those images – in fact, he was there when they were filmed, as he and British journalist Penny Marshall managed to gain access to the infamous Omarska concentration camp and exposed the dire conditions of living for prisoners there.

A certain weariness shows on the face of Vulliamy, who explains that they reported the atrocities in Bosnia for “three effing years” before things started to change. Vulliamy bore witness to many human rights violations on the ground, and later repeated that exercise in a different, more judicial setting years later, as he became the first journalist since the Nuremberg trials to testify at an international war crimes tribunal. In total, he testified in ten trials for the prosecution at the International Criminal Tribunal for the former Yugoslavia (“ICTY”), including those of Bosnian Serb leaders Radovan Karadžić and General Ratko Mladić.

Would I do it all again?“, Vulliamy wonders out loud. He seems ambivalent. He stresses the difference between objectivity and neutrality; journalists have a duty to be objective, he notes, but as human beings they also cannot stay neutral in the face of horrors and wrongdoing. His answers, however also reveal the personal and mental toll it takes to re-live those experiences in front of a tribunal.

That personal toll is something that two other journalists present that night are all too familiar with.

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International Law on Statehood and Recognition: Israeli-Palestinian Conflict and the South Caucasus

Hebrew U Conference

Participants of “Recognition” Conference at Hebrew University

Over the past week, I had the honor of presenting at two different conferences on statehood and recognition issues: the first one was held at Hebrew University in Jerusalem, Israel, and its official title was “Recognition in the Context of the Israeli-Palestinian Conflict,” and the second one was held in Ankara, Turkey, and its focus was on “The Centennial of the Independence of the Three Caucasus States: Historical Background, Contemporary Developments and Prospects of Peace and Prosperity” (the conference was organized by the Center for Eurasian Studies, an independent think tank based in Ankara).  My role at each of these conferences was to discuss statehood and recognition issues under International Law – in the context of the Israeli-Palestinian conflict at the first conference, and in the context of the South Caucasus conflicts at the second conference (as most readers would know, there are ongoing separatist conflicts in Nagorno-Karabakh, South Ossetia, and Abkhazia). Although these conflicts present distinct factual issues, many legal issues pertain to all; this post will briefly discuss such common legal issues in an attempt to shed light on complex issues of statehood and recognition.

Jerusalem view

Jerusalem City View

Statehood and recognition are supposed to be distinct from one another.  The former is a legal theory enshrined in international treaty law: the Montevideo Convention on the Rights and Duties of States establishes four criteria of statehood, which include the presence of a defined territory, permanent population, government, and the capacity to enter into international relations.  The latter is a political act traditionally left to the sovereignty of already-existing states. International law scholars have described two different theories of recognition of states: the declaratory view and the constitutive view. Under the former, recognition is seen as a purely political act having no bearing on the legal elements of statehood. Under this view, outside states can choose to recognize the new state, or not, but that decision does not influence the legal determination of statehood.  Under the latter, recognition is seen as one of the main elements of statehood. Thus, an entity cannot achieve statehood unless it is recognized by outside actors as a state. Under the constitutive view, recognition and statehood go hand-in-hand: an entity vying for statehood must garner the support of other existing states, which must express their desire to formally recognize this entity as their sovereign sister state. In addition to the declaratory and constitutive views, scholars have advanced a third, intermediary view on recognition.  The intermediary view seeks to combine the declaratory and constitutive views while acknowledging what truly takes place in practice.  This view posits that recognition is a political act independent of statehood, but that outside states have a duty to recognize an aspiring state if that entity objectively satisfies the four criteria of statehood.  Upon a closer examination of statehood and recognition, it thus seems evident that the two are related on a theoretical level.  The fourth criterion of the Montevideo Convention establishes the capacity to enter into international relations as one of the fundamental criteria of statehood; an aspiring state cannot possibly enter into international relations unless existing states are willing to recognize the aspiring state as a sovereign partner.  In addition, unless one supports the declaratory view on recognition, it appears that recognition is one of the elements of statehood (under both the intermediary and constitutive views).  And, in practice, recognition and statehood are closely connected. Most aspiring states must garner the support of a sufficient number of existing states, and in reality, the support of most of the Great Powers, in order to be recognized as new sovereign states. Without such recognition, aspiring states remain that – entities aspiring to achieve the supreme status of statehood. To the contrary, recognition and support by the Great Power may elevate an aspiring state to the status of statehood, although such an aspiring state may not satisfy the legal requirements of statehood.

Ankara Conference

Conference on Recognition and Statehood Issues in the Caucasus in Ankara, Turkey 

 

Several historical examples support this argument. When Southern Rhodesia (now Zimbabwe) decided to separate from Great Britain and to form an independent state in 1965, most of the world, including the Great Powers, refused to recognize Southern Rhodesia as a state. Consequently, Southern Rhodesia remained isolated from the world and was unable to conduct international relations. The non-recognition of Southern Rhodesia by outside actors prevented it from fully exercising the attributes of legal statehood. In the context of the former Yugoslavia, European Great Powers as well as the United States decided to prematurely recognize Croatia and Bosnia and Herzegovina, although such recognition was granted at a time when the entities in question arguably did not exercise control over their territories or have effective governments, thereby not meeting the traditional requirement for statehood.  Moreover, the United States refused to recognize the Peoples’ Republic of China (PRC) until 1978, although the PRC satisfied the legal criteria of statehood. Turkey was isolated in its own recognition of the Turkish Republic of Northern Cyprus as a state, although this entity did not necessarily fulfill all the legal elements of statehood. Finally, whereas many Western Great Powers have recognized Kosovo, Russia has refused to entertain any possibility of recognizing Kosovo as a state, although Kosovo’s fulfillment of the legal criteria of statehood is at the very least open to reasonable debate. Thus, recognition, whether it is considered a political or legal act, has a direct impact on the pragmatic determination of statehood: whether an entity will be able to truly act as a state on the international scene.  It may be argued that important states, such as Great Powers, support the constitutive view, because they equate recognition with statehood. In other words, Great Powers, as well as other important states, may decide whether to treat an emerging entity as a state based on their own geo-political interests, and not based on whether the entity satisfies the legal criteria of statehood. Thus, Great Powers, as well as many other states, have demonstrated that in practice, recognition remains constitutive of statehood.

Ankara City View

Ankara City View

Another key ingredient in the process of state creation is United Nations’ membership.  Because United Nations’ membership depends on the Security Council, it is thus subject to the geo-political whims of the five veto-wielding Great Powers (United States, Russia, United Kingdom, France, and China).  United Nations’ membership is important because it de facto elevates an aspiring state into a state.  Conversely, the denial of United Nations’ membership prevents the attainment of full statehood by an aspiring entity.  United Nations’ membership is distinct from the legal criteria of statehood (although such membership arguably enables the entertainment of international relations) and distinct from each existing state’s sovereign decision to recognize or not recognize a newly emerging entity.  However, it may be argued that United Nations’ membership reflects the collective recognition practice of the five permanent members of the Security Council, and that, in order to become a state, any entity must garner the support of these Security Council members – because entering the United Nations signifies the international community’s approval of a new sovereign member.

How does all of the above apply to the Israeli-Palestinian conflict and to the South Caucasus? Although Palestine, Nagorno-Karabakh, South Ossetia and Abkahzia may or may not satisfy the four criteria of statehood, and although Palestine may be recognized by over a hundred existing states, each of these entities have been blocked from entering the United Nations because of Security Council veto – in the case of Palestine, the United States has vetoed the Palestinian application for full membership, and in the cases of Nagorno-Karabkah, South Ossetia and Abkahzia, it is likely that the United States would equally veto membership applications.  Thus, none of these entities stand a chance of attaining statehood at the present moment. It may be argued that the Palestinian case for statehood is much stronger, because Palestine has observer status in the United Nations, because the International Criminal Court has opened an investigation into Israel, at Palestine’s request, and because Palestine has been recognized by more than one hundred existing states.  In addition, Palestine has recently sued the United States in the International Court of Justice under the Vienna Convention on Diplomatic Relations; it will be interesting to find out whether the Court takes up the case on the merits and proclaims anything regarding Palestinian statehood issues. However, because of the United States’ veto in the Security Council, Palestine does not have access to the United Nations and has no prospects of attaining the status of a sovereign state.

In sum, unless one supports the declaratory view, recognition and statehood remain connected on the theoretical level, and recognition and statehood are almost always inter-linked in practice.  Although recognition and statehood are distinct processes, it is nearly impossible to analyze the recognition of new states without focusing on the legal theory of statehood.  In addition to the link between recognition and statehood, recognition is always a political process, dominated by global politics and the interests of the Great Powers.

 

Accountability for harms to children during armed conflict discussed at ILW panel

NEW YORK – Ways to redress offenses against children during armed conflict formed the core of the panel that our University of Georgia School of Law Dean Rusk International Law Center sponsored last Friday at International Law Weekend, an annual three-day conference presented by the American Branch of the International Law Association and the International Law Students Association. I was honored to take part.

► Opening our panel was Shaheed Fatima QC (top right), a barrister at Blackstone Chambers in London, who led a panel of researchers for the Inquiry on Protecting Children in Conflict, an initiative chaired by Gordon Brown, former United Kingdom Prime Minister and current UN Special Envoy for Global Education.

As Fatima explained, the Inquiry focused on harms that the UN Security Council has identified as “six grave violations” against children in conflict; specifically, killing and maiming; recruitment or use as soldiers; sexual violence; abduction; attacks against schools or hospitals; and denial of humanitarian access. With regard to each, the Inquiry identified legal frameworks in international criminal law, international humanitarian law, and international human rights law. It proposed a new means for redress: promulgation of a “single instrument” that would permit individual communications, for an expressed set of violations, to the Committee on the Rights of the Child, the treaty body that monitors compliance with the Convention on the Rights of the Child and its three optional protocols. These findings and recommendations have just been published as Protecting Children in Armed Conflict (Hart 2018).

► Next, Mara Redlich Revkin (2d from left), a Ph.D. Candidate in Political Science at Yale University and Lead Researcher on Iraq and Syria for the United Nations University Project on Children and Extreme Violence.

She drew from her fieldwork to provide a thick description of children’s experiences in regions controlled by the Islamic State, an armed group devoted to state-building – “rebel governance,” as Revkin termed it. Because the IS sees children as its future, she said, it makes population growth a priority, and exercises its control over schools and other “sites for the weaponization of children.” Children who manage to free themselves from the group encounter new problems on account of states’ responses, responses that Revkin has found often to be at odds with public opinion. These range from the  harsh punishment of every child once associated with IS, without considering the extent of that association, to the rejection of IS-issued birth certificates, thus rendering a child stateless.

► Then came yours truly, Diane Marie Amann (left), Emily & Ernest Woodruff Chair in International Law here at the University of Georgia School of Law and our Center’s Faculty Co-Director. I served as a member of the Inquiry’s Advisory Board.

Discussing my service as the Special Adviser to the Prosecutor of the International Criminal Court on Children in and affected by Armed Conflict, I focused on the preparation and contents of the 2016 ICC OTP Policy on Children, available here in Arabic, English, French, Spanish, and Swahili. The Policy pinpoints the crimes against and affecting children that may be punished pursuant to the Rome Statute of the International Criminal Court, and it further delineates a “child-sensitive approach” to OTP work at all stages, including investigation, charging, prosecution, and witness protection.

► Summing up the conversation was Harold Hongju Koh (2d from right), Sterling Professor of International Law at Yale Law School and former Legal Adviser to the U.S. Department of State, who served as a consultant to the Inquiry.

Together, he said, the presentations comprised “5 I’s: Inquiry, Iraq and Syria, the ICC, and” – evoking the theme of the conference – “international law and why it matters.” Koh lauded the Inquiry’s report as “agenda-setting,” and its proposal for a means to civil redress as a “panda’s thumb” response that bears serious consideration. Koh envisaged that in some future administration the United States – the only country in the world not to have ratified the Convention on the Rights of the Child – might come to ratify the proposed new  protocol, as it has the optional protocols relating to children in armed conflict and the sale of children.

The panel thus trained attention on the harms children experience amid conflict and called for redoubled efforts to secure accountability and compensation for such harms.

(Cross-posted from Diane Marie Amann)

A Posthuman Feminist Approach to Mars

Grand_star-forming_region_R136_in_NGC_2070_(captured_by_the_Hubble_Space_Telescope)

Captured the Hubble Space Telescope (NASA)

Feminists must found a constitution for Mars, notes Keina Yoshida in her fascinating recent post. If we leave Mars to the founding fathers it will become the domain of the super wealthy elite white men of techno-mediated capitalism––the Musks, the Zuckerbergs and the Trumps. Human space exploration will follow the same, masculine, humanist blueprint of domination on Earth and Mars will be exploited for its natural resources, just like Earth. Yoshida thus asks:

 

… what then would a founding feminist constitution look like? How would it guarantee foundation against what bell hooks has termed the ‘white supremacist capitalist patriarchy’? Is it a democracy to come? Whose work should we draw upon to inform this constitution? … Who will protect their rights in Mars?

Yoshida answers her own question: “The feminists.”

Feminists are indeed ideally positioned to be able to tackle this issue. Environmental protection is core here but the problem does not lie with these founding fathers alone but with the entire foundations of dominant thought. Feminist gender theorists are central to challenging these dominant accounts of knowledge. Feminist posthumanism is one frame through which these challenges can be made.[1]

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A Constitution for Mars: A Call For Founding Feminists

Constitutions. Hamilton. Founding Fathers. Fathers. Father. Patriarchy.

purple and brown colored planet

In July scientists found a lake in Mars, raising hope that life on Mars, or a ‘colony’ on Mars, may become possible. Elon Musk has been telling us it is possible. Blue Origin tells us that ‘our dramatic next step will take us closer to the potential space holds for us all’. Space exploration has become the sport and object of the super rich and of transhumanists who are convinced that the Event is coming upon us.  Beyond the bunkers in New Zealand built by the capitalist uber elite, space, planets, and terrain beyond ‘the Earth, our home’ is destined for exploration. And if they achieve their goals, then what?  When the first to arrive are the super elite and the wealthy will they do anything other than impose the capitalist extractivist patriarchy under which we live here and now?  What type of rules would these founding fathers desire to regulate their affairs in Mars? Who will the ‘founding fathers’ be?  Bezos, Musk, Zuckerberg, Trump?

It is time that international feminist lawyers start talking about founding space feminism (For an excellent doctrinal overview of the laws on outer space including environmental protection and appropriation see Gerardine Goh Escolar here).  If space exploration is to happen (and it is happening), we must ensure that life in other spaces and times are not subject to the oppression, poverty, racism, sexism, and inequality to which most people on this planet are subjected to. It is up to us to become what Giaconda Belli termed the portadores de sueños (in her poem) and to write the treaties, covenants, and other instruments that provide for an alternative and better future. We must ensure that our ‘space’ constitution is binding and that it binds those who wish us to be bound.

The idea of a Bill of Rights in Mars or a Constitution for Mars is not new. CS Cockell has argued in an Essay on Extraterrestrial Liberty that ‘the most profound irony of the settlement of space is that the endless and apparently free expanses of interplanetary and interstellar space will in fact allow for, and nurture, some of the most appalling tyrannies that human society can contrive  Thwarting this tyranny will be the greatest social challenge in the successful establishment of extraterrestrial settlements’. He and others have previously gathered to discuss what a bill of rights for Mars would look like.  Astrobiologists, it seems, may be ahead of us critically minded lawyers.

The race for space exploration is undoubtedly influenced by the destruction of the planet, and fears over climate security. The UN has recently held debates on water, peace and security. The Rio Declaration on Environment and Development, principle 25 make it clear that ‘Peace, development and environmental protection are interdependent and indivisible’. Environmental peacebuilding recognises that conflict can be caused by or exacerbated by resource scarcity or resource abundance (for example, the war in Sierra Leone and its links to ‘blood diamonds’). More recently, General Recommendation No 35 (updating General Recommendation No 19 on violence against women) of the CEDAW Committee specifically recognises that:

Gender based violence against women is affected and often exacerbated by cultural, economic, ideological, technological, political, religious, social and environmental factors, as evidenced, among others, in the contexts of displacement, migration, increased globalization of economic activities including global supply chains, extractive and offshoring industry, militarisation, foreign occupation, armed conflict, violent extremism and terrorism.

As GR35 recognises, extractive industries exacerbate violence against women and girls. It is deadly. GR35 also recognises the role that corporations play when they operate extraterritorially. And what about when they operate extra-terrestrially?

So what then would a founding feminist constitution look like? How would it guarantee foundation against what bell hooks has termed the ‘white supremacist capitalist patriarchy’? Is it a democracy to come? Whose work should we draw upon to inform this constitution?  Around the world, the brave, the portadores de sueños work on the ground against systematic violence.  Activists and academics work together on feminismos territoriales, and the rights of  women, forests, trees, and rivers.  Who will protect their rights in Mars?

The feminists.

 

Keina Yoshida is a research fellow at the Centre for Women, Peace and Security.  She is currently working on the AHRC funded project a Feminist International Law of Peace and Security.

What’s In a Name – “Istanbul” in the SS Lotus Case

In the weeks leading up to the 91st anniversary of the judgment, two students and I had an occasion to re-read the iconic case of the SS Lotus (France v. Turkey) PCIJ 1927. Our task was to see how one word – the name of the capital city of Turkey – one of the two parties to the case, was invoked by judges in the text of the 1927 Lotus decision. We write this small piece to bring out a non-essential, but nevertheless interesting aspect of this much-cited, much-studied decision.

The SS Lotus case was a legal dispute between France and Turkey, brought by France to the chief judicial organ of the League of Nations, the Permanent Court of International Justice – which is the precursor to the International Court of Justice, chief judicial organ of the United Nations. The facts of the case involved a collision upon the high seas, on August 2, 1926, between a French vessel the SS Lotus and a Turkish vessel the Boz Kourt. The victims were Turkish nationals and the alleged offender was a French lieutenant on the Lotus. The case was brought before the PCIJ to study whether Turkey could exercise its jurisdiction over the French lieutenant under international law.

Our starting point is that the political histories of Western and Eastern scholarship, use different names for the same city. And though Istanbul – the name, the city, and the symbol; is, at best, of tangential importance to the legal outcome of the Lotus; there is something to be said about the how the usage of different names for the same city, offer clues to the political imaginations of the judges.

The Turkish capital, originally referred to in texts by Pliny the Elder, as Lygos, was colonised by the Greek in 667 BC. The Romans named it Byzantium – Eastern Roman Empire. It was then renamed Nova Roma, and eventually become Constantinopolis, when the Roman Emperor Constantine made it his capital 330 AD. Given Emperor Constantine’s recent conversion to Christianity, the city of Constantinople became a thriving centre for religion and an important symbol of Christendom. In 1453 AD, Sultan Mehmed II “The Conqueror” laid siege to the city and captured it, and made it the capital of the Ottoman Empire. Mehmed sacked the legendary Hagia Sophia and turned it into a mosque. He proclaimed Islam as the State religion.

After World War I, the empire was split up and occupied by the Allied powers. The Turkish War of Independence saw the Allies being pushed out in 1923. Turkey signed the Treaty of Lausanne – giving it recognised international borders and exclusive jurisdiction over the territory of Turkey.

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‘Oslo Recommendations for Enhancing the Legitimacy of International Courts’: international judges take a stand on current challenges facing the international justice system

In collaboration with Andreas Føllesdal and Geir Ulfstein of PluriCourts

Fifteen judges from thirteen international courts recently drafted and finalized a set of recommendations aimed at reinforcing the legitimacy of institutions of international justice. These were the participants of the 2018 session of the Brandeis Institute for International Judges (BIIJ), organized collaboratively in June 2018 by the International Center for Ethics, Justice and Public Life, of Brandeis University, and the PluriCourts Center for the Study of the Legitimate Roles of the Judiciary in the Global Order, a center of excellence of the University of Oslo Faculty of Law.

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BIIJ 2018 participants

Over the course of the BIIJ, participants examined carefully how some international courts are currently experiencing ‘pushback’, be it from member states, civil society groups, or even their own parent bodies. The World Trade Organization (WTO) Appellate Body, for example, finds itself at a critical juncture. The United States has recently blocked all new appointments to its seven-member bench, which will soon bring its important trade dispute resolution work to a standstill. The International Criminal Court (ICC) has heard noise about withdrawal by some member states in response to action by its Prosecutor to examine crimes upon their territories.  More generally, international courts and tribunals feel a waning of the late 20th century enthusiasm and support for international justice institutions. BIIJ judges clearly realize that a proactive response on the part of institutions may help them to negotiate current conditions.

The Recommendations, which BIIJ participants drafted and endorsed in their personal capacities, articulate relevant policies and activities in five arenas: nomination and selection of international judges; ethics and judicial integrity; efficiency of proceedings; transparency of proceedings and access to judicial output; and role of judges in outreach and interactions with the public.

We find it first of all important that the fifteen international judges acknowledge the legitimacy challenges facing international courts. It is also significant that the judges believe that both courts and members of their benches have a responsibility to address these issues, and that such responsibility goes beyond what is the ‘primary work of international judges’, i.e. to ‘produce well-reasoned and timely judgments’.

In the section devoted to the nomination and selection of international judges, the Recommendations emphasize the importance of having multiple candidates for judicial vacancies and the need to consider diverse candidates. The document also broaches the question, perhaps publicly for the first time, of establishing age limits for judicial nominees to ensure the ongoing fitness of international judges over the length of their terms. A final provision in this section addresses the need for nomination and selection authorities to ensure that international judges may carry out their work with independence and in security.

The section on ethics and judicial integrity deals with judicial culture in the court as well as ethical issues. It is notable that the judges felt a need to emphasize that dissenting and separate opinions should ‘be delivered with restraint and formulated in respectful language so as not to undermine the authority of the court’.

The provision that ‘[e]ach international court should have a code of judicial ethics whose provisions are well known to judges’ would seem obvious and unnecessary to mention. Nevertheless, some BIIJ 2018 participants reported that while their institutions may have already formalized a set of ethical guidelines, new members of the bench may not be introduced to them nor even be aware of their existence. The guidelines then lose their positive potential.

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International judges drafting the Oslo Recommendations at BIIJ 2018

It is also unusual for international courts, faced with alleged ethical violations by a judge, to appoint ‘an external committee… composed of individuals with relevant knowledge and experience to conduct the investigation and make recommendations’. Some newer institutions have instituted such measures, and this inspired BIIJ 2018 participants to examine the benefits of such an approach. This provision of the Oslo Recommendations thus underscores the wisdom of not confining consideration of potentially serious ethical breaches to internal procedures behind closed doors.

Other provisions of the Recommendations address issues that not infrequently lead to public criticism of international courts. International judicial proceedings may be inefficient and overly lengthy; their judges may take on too much outside work to the detriment of their judicial responsibilities; proceedings cannot always be followed remotely by interested parties; judgments and other judicial output may not be posted or archived in such a manner as to be easily accessible by scholars, other courts, and the larger public; and messaging and outreach by international courts sometimes suffer from inaccuracy and inconsistency.

The Oslo Recommendations for Enhancing the Legitimacy of International Courts represent a first step toward initiating reforms in institutions of international justice that might help them to secure their standing on the world stage. Significantly, this first step has been made collectively by individuals whose positions serve as the fulcrum upon which the entire international justice system balances.

You may read the full text of the Oslo Recommendations here.

 

A Handshake and the Right to Bodily Integrity

Recently, France’s highest administrative court upheld a ruling denying citizenship to a woman who has been married to a French national since 2010. Media outlets reported that the woman cited her “religious beliefs” as a reason for not shaking hands with a male official during the citizenship ceremony. As a result, she was denied citizenship due to the government’s assessment that she was “not assimilated into the French community.” According to the civil code of France, the government has the right to deny citizenship on grounds of “lack of assimilation, other than linguistic.”

There are a number of cases in France and other European countries that are using this concept of assimilation to take away a privilege or penalize those that are perceived as not assimilating. There are arguments supporting both sides of the debate but I thought it may be interesting to use a rights framework to examine these types of cases.

If you are advocating for the woman in this case, a major argument would be that individuals have freedom of religion, which is enshrined in the Charter of Fundamental Rights of the European Union and the Universal Declaration on Human Rights, along with many other domestic and international law instruments. The challenge with this argument is that countries have different histories that lead them to a divergence in the understanding of freedom of religion. For example, in the United States, freedom of religion was loosely based on a concept of pluralism. You can argue that it is not completely the case in practice.  Nonetheless, children in U.S. schools are taught that some immigrants to the United States came to practice their religion freely and openly and this is one of the positive aspects of living in the U.S. This concept remains to be an integral part of American education and understanding. In some other secular countries, governments adopted a definition of freedom of religion that involved relegating religion to the private sphere—essentially practicing freedom from religion in the public sphere. This is mainly due to historical relationships with religious institutions. The history is even more complex than this summary, which highlights the difficulties in advocating a position based a freedom of religion argument alone. Therefore, putting this religious freedom argument to the side for now, I started thinking about the concept of the body and the rights of a person to her or his own body. Continue reading

Applying the death penalty to drug dealers is never ‘appropriate’. It violates international law.

On Wednesday, March 21, Attorney General Jeff Sessions issued a memo implementing President Trump’s plan to “get tough” on the opioid epidemic: the death penalty for drug dealers. Session’s memo “strongly encourage[s]” prosecutors to seek the death penalty in drug cases “when appropriate.” While this strategy comes as no surprise from a president who has lauded Philippine President Duterte’s approach to drug policy, it’s not “appropriate”. And it violates international law.

Lots of ink has been spilled arguing that Trump’s proposal will violate the Constitution, drive drug use underground, benefit large-scale drug dealers, and grind the federal judicial system to a halt. Less has been said about the international legal implications of the proposal.

Article 6(2) of the International Covenant on Civil and Political Rights (ICCPR), to which the United States is a party, limits the application of capital punishment to the “most serious crimes.” The UN Human Rights Committee emphasizes that this category must be “read restrictively,” and the Economic and Social Council of the UN cautions that its “scope should not go beyond intentional crimes with lethal or extremely grave consequences.” Further clarifying the category, the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions explained that the death penalty can only be imposed when “there was an intention to kill which resulted in the loss of life.”

According to Harm Reduction International (HRI), 33 of the 55 states that retain the death penalty apply it to drug-related offenses. These statistics, it might surprise you, already count the United States as one of those 33 countries. Though the United States has never executed anyone under the provision, 18 U.S.C. §3591(b) authorizes the death penalty for trafficking in large quantities of drugs and remains in force according to the Cornell Center on the Death Penalty Worldwide.

This might be less surprising when one realizes that the United States reserved the right “to impose capital punishment on any person [. . .] duly convicted under existing or future laws” when it joined the ICCPR. This reservation does not give the U.S. the right or ability, however, to opt out of existing customary international law. And that is precisely how international human rights lawyers and scholars increasingly view the abolition of the death penalty, particularly for drug-related offenses. Giving credence to this view, of the 33 countries that retain the death penalty for drug offenses, 17 of them have never executed anyone pursuant to those laws.

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 BOOK LAUNCH ~~~ INTERNATIONAL COURTS AND THE AFRICAN WOMAN JUDGE: UNVEILED NARRATIVES (ROUTLEDGE, 2018)

 

The Institute for African Women in Law and the Wilson Center Women in Public Service Project jointly launched the book, International Courts and the African Woman Judge: Unveiled Narratives (Routledge, 2018) edited by Dr. Josephine Jarpa Dawuni and Hon. Judge Akua Kuenyehia (Former Judge of the International Criminal Court), with a foreword by Hon. Judge Gabrielle Kirk McDonald (Former Judge/President of the ICTY and Former Arbitrator, Iran-US Claims Tribunal). 

Gwen Young, Director of the Wilson Center Women in Public Service Project introduced the panel.

Dr. Josephine Jarpa Dawuni opened the discussion, highlighting her motivations for editing this volume, noting among others the importance of drawing on the theories of postcolonial feminism, legal narratives and feminist institutionalism to analyze the place of women from the continent of Africa on international courts. She noted, “Why are we looking at African women judges? Why not the fact that she is a judge, she is qualified, she can do it. Legal Narratives help us understand their trajectory to the international bench.”

 

 

Prof. Nienke Grossman discussed the work of International Court of Justice Judge Julia Sebutinde (Chapter 3 below).

 

Prof. Rachel Ellett’s chapter focused  on Judge Kellelo Mafoso-Guni of the African Court of Human and Peoples’ Rights (ACtHPR) (Chapter 7 below).

Counsellor Christiana Tah, Former Minister of Justice, Republic of Liberia, provided remarks as a discussant. She noted;

“We [women] want to participate, we want to be a part of the process.”

“It’s important to uplift African women, but it’s not all about race, it’s about uplifting all women.”

“One of the things I always think about when discussing Africa and the judiciary is that you have to look at it as a dichotomy because of the history of colonization. How do you harmonize the two?

                                          Other Chapters in the Book Include

Chapter 1: Introduction: Challenging Gender Universalism and Unveiling the Silenced Narratives of the African Woman Judge

By Josephine Jarpa Dawuni

This chapter provides the theoretical and conceptual framework around which the book is developed. By engaging in an overview and analysis of existing scholarship on gender and judging, it questions the gaps in existing theoretical perspectives and exposes questions on gender diversity which have not been addressed. It discusses the method and structure of the book.

 

 Chapter 2: Women Judges in International Courts and Tribunals: The  Quest for Equal Opportunities

 By Judge Florence Ndepele Mwanchande Mumba

This chapter is a personal reflection on the life and journey of Justice Florence Ndepele Mwachande Mumba. The chapter traces her life growing up in Zambia, attaining a legal education and becoming the first woman High Court Judge in the Zambia. In 1997, Judge Mumba was elected to the United Nations International Criminal Tribunal for the former Yugoslavia.  She served as a Trial Judge for six years. She presided over, the Prosecutor vs Anto Furundzija, IT-95-17/1; the Prosecutor vs Kunarac  et al, IT-96-23-T; the Prosecutor vs Simic et al. IT-95-9/T. Convictions in these cases included torture as a violation of laws or customs of war, outrages upon human dignity, rape as torture, enslavement, and crimes against humanity for persecution, cruel and inhumane treatment and beatings.  These were among the first convictions for ICTY where rape and sexual violence were pronounced as crimes against humanity, war crimes and torture. Judge Mumba presided over two guilty pleas, The Prosecutor vs Drazen Erdemovic, IT-96-22 and the Prosecutor vs Milan Simic, IT-95-9/2. Judge Mumba’s view is that international crimes trials must be held in the territories where atrocities were committed for the benefit of indicted persons and the community. Statutory provisions for gender balance in international courts and tribunals are essential.

Chapter 3: Julia Sebutinde: An Unbreakable Cloth

By Nienke Grossman

This Chapter discusses the life story of International Court of Justice Judge Julia Sebutinde.  It highlights her determination and strength of character, while raising questions about gender, geographical background, race, ethnicity and judging, and international judicial selection procedures.  After detailing her biography before becoming an international judge, the Chapter turns to her selection to, experiences on and contributions to the Special Court for Sierra Leone, and subsequently, the International Court of Justice.  The Chapter contains a section on her advice to future generations, an analysis of why her story is significant, and finally, it suggests avenues for further academic research.

Chapter 4:  Akua Kuenyehia : Leaving a Mark Along the Journey for Human  Rights

 By Josephine Jarpa Dawuni

This chapter chronicles the life and journey of Justice Akua Kuenyehia, an academic, women’s rights activist and an international court judge. Using legal narratives as a tool for centering her experiences, the chapter presents monumental developments in her life as presented sometimes in her voice and situated within existing discourse on women, gender and feminist engagement with international law.

Chapter 5: Fatoumata Dembélé Diarra : Trajectory of a Malian Magistrate and Civil Society Advocate to the International Criminal Court

 By Sara Dezalay

A high-level magistrate and prominent civil society advocate in Mali, Judge Fatou Dembélé Diarra featured among the historic first bench of judges elected to the International Criminal Court (ICC) in 2003. This chapter gives prominence to the voice of Diarra herself, as an exceptional individual with an acute degree of reflexivity over her own trajectory, the options she had and the professional strategies she pursued, and further, that of her own country’s post-colonial history. In so doing, however, it strives to reconstruct the structural conditions that can help explain her path, in what was still a French colony, in 1949, to the ICC. It underlines, meanwhile, how Diarra’s trajectory can prove a powerful entry-point to account for the position of legal elites in post-colonial Mali, and further, the role played by her appointment to the ICC, as a woman and as an African, in fostering the authority of the court over time. 

Chapter 6: Judge Sophia Akuffo: Balancing the Equities

By Kuukuwa Andam and Sena Dei-Tutu

Justice Sophia was sworn in as the 13th Chief Justice of Ghana on June 19, 2017. Prior to this, Akuffo had served as the first female President of the African Court on Human and People’s Rights (ACtHPR) in 2012, as Vice-President of the ACtHPR in 2008 and as a Justice of the Supreme Court of Ghana since 1995. This chapter tracks Akuffo’s career from her birth in Akropong-Akuapem, in the Eastern Region of Ghana, to her appointment as the second female Chief Justice of Ghana. In particular, a selection of cases that Akuffo delivered judgments in will be analyzed as a means of contextualizing Akuffo’s legal philosophy. Additionally, this chapter will examine some of the challenges Akuffo faced as well as the lessons learnt during her legal career. In identifying the barriers that Akuffo encountered, this chapter considers the similarities between Akuffo’s experience and the experiences of thousands of female lawyers and judges working on the African continent; with a mind to highlighting avenues for increasing the participation of African women on International Courts. The chapter concludes with some observations and future research questions. 

Chapter 7: Justina Kellelo Mafoso-Guni: The Gendering of Judicial Appointment Processes in African Courts

By Rachel Ellett

Representation of women in domestic and international courts is essential to the legitimacy of those institutions. Over the last decade low representation of women judges has begun to be addressed through reform of appointment processes. However, reforming formal appointment mechanisms does not eliminate the gendered informal structures of judicial appointments. Justice Mafoso-Guni’s biography – first woman to the Lesotho High Court and the African Court of Human and People’s Rights (ACtHPR) – illustrates the pervasiveness of informal gendered institutions as an obstacle to women reaching the bench; both in Lesotho and the ACtHPR. Utilizing diachronic analysis, this chapter reveals the arch of Mafoso-Guni’s career trajectory and pauses to offer more in-depth analysis on her appointment challenges in Lesotho and to the ACtHPR.  Placing Mafoso-Guni’s appointment challenges in the broader context of increasing numbers of women to the bench more generally; her story highlights both the limitations and the gendering of individual agency in light of weak formal institutional commitments to gender parity. It further reveals the gendered power asymmetries present in the informal institutional mechanisms of both domestic and international judicial appointments. Judicial appointments perfectly illustrate the gendered institutional context in which women seek to carve a pathway to the bench.

Chapter 8: Elsie Nwanwuri Thompson: The Trajectory of a Noble Passion

By Rebecca Emiene Badejogbin

This chapter explores the trajectory of Judge Elsie Thompson from her background, to the Nigerian judiciary and onward as a Judge and eventually a Vice President of the African Court of Human and People’s Rights. It reveals the distinctiveness of her experiences and trail blazing paths, and is a demonstration of the impact of various factors such as socio-economic and political, as well as cultural location, education, contextual experiences, institutional opportunities and personal agency on the ascendancy of African women to transnational courts, and according to her, divine providence. The narration and analysis of these experiences engage a convergence of theories that touch on the impact of institutional arrangements on women, and the lingering effects of political, economic and cultural factors on women’s access to political appointments in a post-colonial context. While her experiences generally agree with literature on the subject of women’s ascendancy to these courts, this chapter closely interrogates her ascent as an African woman to a transnational court and states that not only does her presence in the court create judicial diversity, she has made ‘valuable contributions to jurisprudence and the development’ of regional laws.

 Chapter 9: Conclusion: International Courts and the African Woman Judge– Unlocking Doors, Leaving a Legacy

By Josephine Jarpa Dawuni and Akua Kuenyehia

This chapter provides a recap of the goals of this project. It summarizes the key findings, amplifies questions yet to be explored and sets an agenda for the development of future research on women and judging in Africa. It also sets a plan for maintaining the momentum made with African women’s access to international courts and tribunals.

 Copies of the book can be purchased on Amazon.com 

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