Leila Sadat, President of the American Branch of the International Law Association, issued a statement on behalf of ABILA in response to the revocation of U.S. sanctions on the ICC. To read the statement, titled Revocation of Executive Order 13928 and Travel Restrictions against ICC Personnel, please click here.
There has been such a sustained focus on the right to impose death that it sometimes eclipses its essential corollary, namely the sovereign right to spare life. In India’s modern political system, this power to spare life remains in the form of executive clemency. Executive clemency, enumerated in Article 72 of the Indian Constitution, represents an escape valve where officials unaffiliated with the judiciary can survey the landscape and make decisions on factors beyond the law. Thus, the most logical use of clemency powers is when an individual wrongly convicted, can demonstrate that the system failed or that they are innocent. Critics, however, have argued that this conflicts with the demands of justice and equality, demands a liberal state presumably must heed. Due to mercy’s arbitrary and capricious nature, the state, they argue, should be lawful, not merciful. A study of the mercy petitions rejected by various Presidents in recent history lends some merit to their argument since it reveals a trend of politicization of mercy.
For example, the rejection of Saibanna’s mercy petition came right after the December 16 gang rape; a time when the government needed a facile gesture to show that it was tough on crime against women. He had been sentenced to death for murdering his second wife and daughter after having been convicted for murdering his first wife, however his case was riddled with glaring judicial blunders from start to end. Both the trial court and the High Court convicted and sentenced Saibanna under s. 303 of the Indian Penal Code which provided for mandatory death sentence but had been struck down as unconstitutional some twenty years earlier. The Supreme Court took full notice of the s. 303 issue but then noted that the session’s court faulty finding did not prejudice the cause of the accused since there was no record of any mitigating circumstances.
However what the Court failed to consider was that in cases under s. 303 there is no sentencing hearing, and hence no opportunity to bring on record mitigating circumstances. Moreover, the Court squarely based its death sentence verdict on the erroneous view that Saibanna, already undergoing a life sentence, could not be sentenced to life imprisonment again, and therefore the death sentence was the only available punishment. Thus in effect, the Supreme Court revived mandatory death sentencing. So glaring were these errors that a campaign had been launched pursuant to which fourteen eminent retired judges of the High Court and the Supreme Court
wrote to the President asking him to commute these death sentences. They said that it would be unconscionable and a blot on the administration of justice to execute Saibanna whose petition had been pending for 25 years. These factors should have necessitated the commutation of the death sentence by a government with even an iota of respect for the rule of law. Continue reading
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
For speaking engagements, email: email@example.com
Elise Ketelaars and Catherine O’Rourke
We are delighted to present a new issue of the Ulster University Transitional Justice Institute Research Paper Series on the Social Sciences Research Network. The issue broadly addresses the fields of peacebuilding and transitional justice in Northern Ireland and Latin America. Each of the papers emphasize, in their own ways, the importance of in-depth case study research in enriching their fields of scholarship. Moreover, the issue once again highlights the strong and durable relations that TJI scholars have maintained with practice and activism within and outside Northern Ireland. The issue displays the value of these ties in creating both impactful and innovative approaches to peacebuilding, humanitarian work and justice in societies in transition.
Cath Collins’ report summary on disappearance and enforced disappearance in past political violence in Latin America neatly illustrates the importance of scholar-activism-policy ties. In addition to being a professor at TJI, Cath Collins is the founder and director of the Transitional Justice Observatory at the Universidad Diego Portales, Chile. In her contribution, she collates and synthesises the results of three stimulating dialogues between law, social science and forensic (natural) sciences that took place in Santiago de Chile and Lima, Peru in 2017. The dialogues were organized to inform efforts to give domestic effect in Chile and Peru to the International Convention against Enforced Disappearance. The challenges addressed in the dialogues resonate across many other transitional contexts and confirm the value of disseminating this unique case study research.
The other three contributions concern the Northern Irish context in single case study and comparative research. The paper of Monica McWilliams and Jessica Doyle exemplifies the ongoing engagement of the authors and the TJI with understanding gender based violence in transitional settings. The paper explores the links between intimate partner violence and violent conflict based on findings from more than 100 in-depth semi-structured interviews with women victims of IPV from across Northern Ireland. The paper combines findings from McWilliams’ 1992 study on domestic violence in Northern Ireland with new data she and Doyle gathered during the course of 2016. The paper thereby presents a rare empirically grounded insight into the impact of transition from conflict to peace on intimate partner violence.
Kris Brown’s paper examines the impact on peacebuilding of partisan political commemoration. The paper’s salience is undeniable in light of Northern Ireland’s current ‘Decade of Centenaries’, which encompasses the foundational years in modern Irish history of 1912 to 1923, This paper, in addition to McWilliams and Doyle’s, is an output of the DFID-funded Political Settlements Research Programme, a unique North-South, scholar-practitioner consortium of five institutions (University of Edinburgh Global Justice Academy, Ulster University Transitional Justice Institute, Conciliation Resources, Rift Valley Institute and the Institute for Security Studies).
Finally, we are delighted to present a contribution on the role that ‘wild nature’ can play in peacebuilding, or ‘peace cultivation’. The paper was presented by TJI/INCORE’s Brandon Hamber and Alistair Little and Wilhelm Verwoerd at the 29th Annual Nobel Peace Prize Forum at Augsburg University in Minneapolis. Little and Verwoerd belong to ‘Beyond Walls’ which organises ‘the Journey through Conflict’ process in the framework of ‘Sustainable Peace Network’. Between 2004 and 2011 they have facilitated peacebuilding activities through immersion of participants in ‘wild nature’ in the Scottish Highlands and South Africa. The role of nature in peacebuilding activities has been underexplored. Through the continuous monitoring of the experiences of the over 100 individuals who participated in ‘the Journey through Conflict’ over the years, however, this paper gives a fascinating insight into the role of nature-based activities in peacebuilding. This joint intellectual effort between Hamber and the practitioners from Beyond Walls once again demonstrates how strong and sustainable ties between academia and practice create fertile ground for innovative contributions to scholarship.
The collection’s just been issued by Edward Elgar Publishing, which writes:
“This volume provides a comprehensive overview of children’s human rights, collecting the works of leading authorities as well as new scholars grappling with emerging ideas of ‘children’ and ‘rights.’ Beginning with the Convention on the Rights of the Child, the most widely ratified human rights treaty in the world, this book explores the theory, doctrine, and implementation of the legal frameworks addressing child labor, child soldiers, and child trafficking, as well as children’s socio-economic rights, including their rights to education.”
My own contribution is listed in this compendium as: “Diane Marie Amann (2013), ‘A Review of Reimagining Child Soldiers in International Law and Policy in Mark A. Drumbl, Oxford University Press’, American Journal of International Law…” On my SSRN page, I describe this book review as follows:
“This essay reviews ‘Reimagining Child Soldiers in International Law and Policy’ (2012), in which author Mark Drumbl examines legal doctrine, global activism, and social science research respecting underaged combatants.”
Additional contributors to this collection who have also contributed to IntLawGrrls include, besides Professor Stark and me, Mark A. Drumbl and Nienke Grossman. The balance of contributors are as follows: Philip Alston, Jo Becker, Maria Bouverne-De Bie, Claire Breen, Geert Cappelaere, Cynthia Price Cohen, Katherine Covell, Mac Darrow, Martha F. Davis, Michael J. Dennis, Janelle M. Diller, Sara A. Dillon, Martin Guggenheim, Stuart N. Hart, Kamran Hashemi, R. Brian Howe, David A. Levy, Janet McKnight, Tendai Charity Nhenga-Chakarisa, Paulo Sérgio Pinheiro, Roslyn Powell, Alison Dundes Renteln, Marilia Sardenberg, William A. Schabas, David M. Smolin, Murray A. Straus, Laura Thetaz-Bergman, John Tobin, Jonathan Todres, Geraldine Van Bueren, Wouter Vandenhole, Eugeen Verhellen, and Barbara Bennett Woodhouse.
(Cross-posted from Diane Marie Amann blog)
The celebrated military historian, John Keegan, once wrote that ‘Soldiers are not as other men’. This sentiment certainly holds true in international law. The foundations of international humanitarian law rest on the premise that there is a distinction between combatants and civilians, with the former being liable to attack (unless hors de combat) and the latter being protected (unless directly participating in hostilities).
In human rights law, the European Court of Human Rights has held that the interpretation and application of the European Convention of Human Rights can be different when being applied to members of state armed forces than to civilians (Engel v The Netherlands (No 1) (1976) 1 ECtHR 647).
In international criminal law too, the fact that someone has been fighting has implications. In the Erdemović case, for example, Judges McDonald and Vohrah found that a soldier who had taken part in a firing squad under threat to his own life could not plead duress because ‘soldiers or combatants are expected to exercise fortitude and a greater degree of resistance to a threat than civilians, at least when it is their own lives that are being threatened.’
In my new book, Fighting and Victimhood in International Criminal Law (Routledge, 2018), I explore how the act of fighting, or having been involved in fighting, makes a difference in the context of when an individual can qualify as a victim of an international crime.
Issues explored include: how have international criminal courts and tribunals untangled lawful casualties of war from victims of war crimes? How have they determined who is a member of a non-state armed group and who is not? What crimes can those who fight be victims of during hostilities? When does it become relevant in international criminal law that an alleged victim of crime was a person hors de combat rather than a civilian? Can war crimes be committed against members of non-opposing forces? Can persons hors de combat be victims of crimes against humanity? Can those who fight be victims of genocide? What special considerations surround peacekeepers and child soldiers as victims of international crimes?
I argue that while those who fight can be victims of war crimes, crimes against humanity and genocide, the fact that they have been fighting can have implications concerning their victimhood, and these implications have not always been adequately taken into account by international criminal courts and tribunals.
LONDON – Building on yesterday’s post about the magical London conference launching Arcs of Global Justice: Essays in Honour of William A. Schabas (Margaret M. deGuzman and Diane Marie Amann eds.), today’s post profiles the book itself, which, thanks to excellent assistance from John Louth, Blake Ratcliff, and their staff, has just been published by Oxford University Press. (The hardback may be ordered via OUP or Amazon, and the book’s also available on Kindle.)
Very pleased to have coedited this volume with my colleague Meg, another longtime IntLawGrrls contributr. The concept, in our words:
“Martin Luther King, Jr. once said ‘the arc of the moral universe is long, but it bends toward justice.’ Testing the optimism of that claim were the many fits and starts in the struggle for human rights that King helped to catalyze. The same is true of other events in the last half-century, from resistance to apartheid and genocide to equal and fair treatment in domestic criminal justice systems, to the formation of entities to prevent atrocities and to bring their perpetrators to justice. Within this display of myriad arcs may be found the many persons who helped shape this half-century of global justice-and prominent among them is William A. Schabas. His panoramic scholarship includes dozens of books and hundreds of articles, and he also has served as an influential policymaker, advocate, and mentor.”
“This work honours William A. Schabas and his career with essays by luminary scholars and jurists from Africa, Asia, Europe, and the Americas. The essays examine contemporary, historical, cultural, and theoretical aspects of the many arcs of global justice with which Professor Schabas has engaged, in fields including public international law, human rights, transitional justice, international criminal law, and capital punishment.
In all, the book includes 29 contributions by 35 academics, advocates, and jurists, as detailed in the table of contents below (the several who also have contributed to IntLawGrrls are marked by asterisk). Providing jacket-cover testimonials were Steven Kay QC, Philippe Sands QC, Professor and former Ambassador David Scheffer, and Judge Christine Van den Wyngaert. We hope that you’ll follow their recommendations and give these important, substantive essays a very good read.
Arcs of Global Justice:
Essays in Honour of William A. Schabas
► Foreword by Diane Marie Amann* and Margaret M. deGuzman,* coeditors
► Introduction: William Schabas: Portrait of a Scholar/Activist Extraordinaire by Roger S. Clark, Board of Governors Professor of Law, Rutgers University School of Law
► Human Rights and International Criminal Justice in the Twenty First Century: The End of the Post-WWII Phase and the Beginning of an Uncertain New Era by M. Cherif Bassiouni (He died at age 79 in September, just weeks after he completed final changes on this essay; as posted, our conference included a memorial to him. At the time of his death, he was Emeritus Professor of Law, DePaul University College of Law; Honorary President, Siracusa Institute for Criminal Justice and Human Rights; and Honorary President, L’Association internationale de droit pénal.)
► William Schabas, the Canadian Charter of Rights and Freedoms and International Human Rights Law by Justice Thomas A. Cromwell, Supreme Court of Canada, and Bruno Gélinas-Faucher, formerly a law clerk on that court and now a Cambridge PhD candidate
► The International Convention on the Protection of All Persons from Enforced Disappearance, as a Victim-Oriented Treaty by Emmanuel Decaux, Professor Emeritus, Université Paris 2 (Panthéon-Assas), and former President, Committee on Enforced Disappearances
► The Politics of Sectarianism and its Reflection in Questions of International Law & State Formation in The Middle East by Kathleen Cavanaugh, Senior Lecturer at the Irish Centre for Human Rights, National University of Ireland Galway, and Joshua Castellino, Professor of Law & Dean of the School of Law, as well as the Business School, at Middlesex University, London
► International Law and the Death Penalty: A Toothless Tiger, or a Meaningful Force for Change? by Sandra L. Babcock,* Clinical Professor of Law at Cornell Law School and Faculty Director of the Cornell Center on the Death Penalty Worldwide
► The UN Optional Protocol on the Abolition of the Death Penalty by Marc Bossuyt, Fellow at the Stellenbosch Institute for Advanced Study, Emeritus Professor of the University of Antwerp, Emeritus President of the Constitutional Court of Belgium, and former Chairman of the UN Commission on Human Rights
► The Right to Life and the Progressive Abolition of the Death Penalty by Christof Heyns, formerly the UN Special Rapporteur on extrajudicial, summary or arbitrary executions from 2010 through 2016, and now a member of the UN Human Rights Committee and Professor of Human Rights Law at the University of Pretoria, Thomas Probert, Research Associate, Centre of Governance & Human Rights, University of Cambridge, and Tess Borden, Aryeh Neier Fellow at Human Rights Watch and the American Civil Liberties Union, and former researcher for the UN Special Rapporteur on extrajudicial, summary or arbitrary execution
► Progress and Trend of the Reform of the Death Penalty in China by Zhao Bingzhi, Dean of the College for Criminal Law Science of Beijing Normal University, President of the Criminal Law Research Association of China, Vice-President of the International Association of Penal Law, and President of that association’s Chinese National Group
International Criminal Law
► Criminal Law Philosophy in William Schabas’ Scholarship by Margaret M. deGuzman,* Professor of Law at Temple University’s Beasley School of Law
► Is the ICC Focusing too Much on Non-State Actors? by Frédéric Mégret, Associate Professor and Dawson Scholar, Faculty of Law, McGill University
► The Principle of Legality at the Crossroads of Human Rights and International Criminal Law by Shane Darcy, Senior Lecturer at the Irish Centre for Human Rights, National University of Ireland Galway
► Revisiting the Sources of Applicable Law Before the ICC by Alain Pellet, Emeritus Professor at the University of Paris Nanterre, former Chairperson of the UN International Law Commission, President of the French Society for International Law, Member of the Institut de droit international, as well as Counsel and Advocate before the International Court of Justice, the International Tribunal for the Law of the Sea, and other forums
► The ICC as a Work in Progress, for a World in Process by Mireille Delmas-Marty,* Member, Institut de France, and Professor Emerita, Collège de France de Paris
► Legacy in International Criminal Justice by Carsten Stahn, Professor of International Criminal Law and Global Justice, Leiden University
► Torture by Private Actors and ‘Gold Plating’ the Offence in National Law: An Exchange of Emails in Honour of William Schabas by Andrew Clapham, Professor of Public International Law at the Graduate Institute of International and Development Studies in Geneva, and Paola Gaeta, Professor of International Law and International Criminal Law at the Graduate Institute of International and Development Studies, Geneva
Genocide and Crimes Against Humanity
► Secrets and Surprises in the Travaux Préparatoires of the Genocide Convention by Hirad Abtahi, First Legal Adviser, Head of the Legal and Enforcement Unit, at the Presidency of the International Criminal Court, and Philippa Webb, Reader (Associate Professor) in Public International Law at King’s College London and a barrister at 20 Essex Street Chambers
► Perspectives on Cultural Genocide: From Criminal Law to Cultural Diversity by Jérémie Gilbert, Professor of International and Comparative Law, University of East London
► Crimes Against Humanity: Repairing Title 18’s Blind Spots by Beth Van Schaack,* Leah Kaplan Visiting Professor in Human Rights at Stanford Law School and Visiting Scholar at the Center for International Security & Cooperation at Stanford University
► A New Global Treaty on Crimes Against Humanity: Future Prospects by Leila Nadya Sadat,* James Carr Professor of International Criminal Law and Director of the Whitney R. Harris World Law Institute at Washington University School of Law, Special Adviser to the ICC Prosecutor on Crimes Against Humanity, and Director of the Crimes Against Humanity Initiative
Transitional Justice and Atrocity Prevention
► Justice Outside of Criminal Courtrooms and Jailhouses by Mark A. Drumbl,* Class of 1975 Alumni Professor of Law and Director, Transnational Law Institute, Washington and Lee University School of Law
► Toward Greater Synergy between Courts and Truth Commissions in Post-Conflict Contexts: Lessons from Sierra Leone by Charles Chernor Jalloh, Professor of Law, Florida International University, and a member of the International Law Commission
► International Criminal Tribunals and Cooperation with States: Serbia and the provision of evidence for the Slobodan Milosevic Trial at the ICTY by Geoffrey Nice QC, a barrister since 1971, formerly at the International Criminal Tribunal for the Former Yugoslavia, and Nevenka Tromp, Lecturer in East European Studies at the University of Amsterdam and former member of the ICTY Leadership Research Team
► The Arc toward Justice and Peace by Mary Ellen O’Connell,* the Robert and Marion Short Chair in Law at the University of Notre Dame Law School
► The Maintenance of International Peace and Security through Prevention of Atrocity Crimes: The Question of Co-operation between the UN and regional Arrangements by Adama Dieng, UN Under-Secretary-General and Special Adviser on the Prevention of Genocide, as well as former Registrar of the International Criminal Tribunal for Rwanda and former Secretary-General of the International Commission of Jurists
Justice in Culture and Practice
► Law and Film: Curating Rights Cinema by Emma Sandon, Senior Lecturer in Film and Television at Birkbeck, University of London, and a Research Fellow to the Chair for Social Change, University of Johannesburg
► The Role of Advocates in Developing International Law by Wayne Jordash QC, international human rights and humanitarian lawyer and founding partner of Global Rights Compliance
► Bill the Blogger by Diane Marie Amann,* Emily and Ernest Woodruff Chair in International Law and Faculty Co-Director of the Dean Rusk International Law Center at the University of Georgia School of Law
(Cross-posted from Diane Marie Amann)
Catherine O’Rourke and Elise Ketelaars
We are pleased to announce the publication of a new issue of the Ulster University Transitional Justice Institute Research Paper Series on the Social Sciences Research Network. This exciting new issue engages both with highly-topical contemporary questions, as well as long-standing challenges in international law, peace, human rights and gender equality. First off, Thomas Obel Hansen considers the Policy Paper of the ICC on preliminary examinations and its potential to advance ‘positive complementarity’ between the operation of the court and the domestic pursuit of justice for conflict victims. At a time of apparent crisis for the court, scholarship such as Hansen’s that addresses this critical relationship between its operation and broader domestic impacts is critical. Aisling Swaine, the leading global expert in National Action Plans (NAPs) for Women, Peace and Security, examines relevant practice to date in the Asia-Pacific region. She demonstrates an exciting new methodology for gender-responsive planning, which has relevance well beyond the specifics of Asia Pacific, namely the ‘Gender Needs Analysis Tool’. Likewise, the findings, conclusions and recommendations offer immediate policy relevance to the current 63 UN member states with NAPs on Women, Peace and Security, as well as those currently developing or reviewing NAPs.
Contributions by Catherine O’Rourke and the joint article by Anne Smith, Monica McWilliams and Priyamvada Yarnell both address the question of international human rights obligations and their current and potential impact on Northern Ireland. Catherine O’Rourke, in research from the DFID-funded Political Settlements Research Programme, considers the recent report of the UN Special Rapporteur on Truth, Justice, Reparations and Guarantees of Non-recurrence on his country visit to Northern Ireland. She identifies the potential for the report to positively re-shape both the diagnostic (defining the problem) and prognostic (identifying the solutions) framing of the vexed issue of how to deliver accountability for past conflict killings and harms in Northern Ireland. Finally, Anne Smith, Monica McWilliams and Priyamvada Yarnell engage with the highly topical challenges of protecting human rights in Northern Ireland as the UK advances its withdrawal from the European Union. In a timely and important contribution, the authors consider how the long-promised Bill of Rights for Northern Ireland might finally be advanced as part of broader efforts to ensure continued human rights protections in the midst of Brexit.
Debates about conflict, crime and accountability often center on the victims and the perpetrators — protection of victims; search for, prosecution and punishment of perpetrators; compensation, restitution and acknowledgement for victims. These are, of course, essential questions and issues. But any situation of violence, from random street crime to the largest atrocities, involves a more complex cast of characters than the two main protagonists. Examining the roles, potential and obligations of that vast space between victim and perpetrator offers an opportunity to explore challenging questions about human security, responsibility, and the intersection between law, morality and the social contract.
I had the great privilege of participating in just such a conversation last Friday at the University of Utah Law Review symposium on The Bystander Dilemma: The Holocaust, War Crimes, and Sexual Assaults. The symposium was inspired by Utah Law Professor Amos Guiora’s remarkable new book, The Crime of Complicity: The Bystander in the Holocaust. Professor Guiora’s book is an intellectually challenging and deeply personal exploration of the legal and moral obligations of bystanders, based on the experiences of his parents, Holocaust survivors from Hungary.
Over the course of three panels — on the Holocaust, situations of conflict and mass atrocities, and sexual assault — and a keynote, the symposium wove together old and new conversations about several critical thematic questions. Who is a bystander? Where is the line between bystander and perpetrator or between bystander and potential victim? How do these lines affect how we view a bystander’s obligations — or perhaps how the bystander him- or herself views any such obligations? Why does the bystander matter and, most directly linked to Professor Guiora’s book, why is there a disconnect between the bystander’s moral and legal obligations?
Particularly interesting was the breadth of ways in which one might consider the bystander and for what reasons, all of which matter to any consideration of moral or legal obligations and consequences. First, and perhaps most instinctive, we think of the bystander in the context of protecting the victim of a crime — someone who can alert the authorities or even stop the violence in some way. This links directly to the second — preventing violence and crimes. If a bystander speaks up in some way, the attack or crime is less likely to happen.
But the discussions and exploration of the bystander dilemma ranged far beyond this direct relationship. A third component focuses on assigning responsibility to act, whether moral or legal responsibility. The central call of Professor Guiora’s new book is for a legal obligation for bystanders to alert authorities or otherwise intervene to protect the victim of a crime. Fourth, the bystander conversation is also about identifying capability — who has the capability to act to help a victim, to stop a crime, to prevent violence, and how does the nature of that capability affect the content of any such obligation?
This installment of Write On!, our periodic compilation of calls for papers, includes calls to present at the American Society of Internaitonal Law’s Annual Meeting, as follows:
- The Migration Law Interest Group of the American Society of International Law will host a works-in-progress session, to be held from April 12-15, 2017 at Washington DC. The theme is dedicated to original and on-going research on global migration law. Deadline is February 15, 2017. At least three papers will be selected on the basis of the submitted abstracts. Abstracts must not exceed 500 words, and must be submitted to the following email address: firstname.lastname@example.org. In addition to the abstract, each submission should contain the author’s name and affiliation and a brief cv. The deadline for the submission of the abstracts is February 15, 2017. Authors of selected papers will be notified by March 1, 2017. Authors of selected papers are requested to submit drafts of their works-in-progress by March 15, 2017.
Please note that you must be a member of the American Society of International Law, and join the Migration Law Interest Group, in order to participate in the workshop. You must also register for the ASIL Annual Meeting to participate; the early-bird registration discount period for the Annual Meeting ends January 31.
- Women in International Security Canada Annual Workshop, to be held 17-19 May, 2017 at the Centre for Sustainable Development, Montreal, Quebec. The theme is “Next generation of women leaders”. Deadline is 28 February 2017.