Inhumane Proposal to Separate Women and Children Fleeing Violence Will Cost U.S. Taxpayers

Earlier this week, U.S. Homeland Security Secretary John Kelly confirmed reports that he was considering a policy that would separate women and children who cross the U.S.-Mexico border illegally. If enacted, the policy would be both devastating for women and their children—many fleeing violence in Central America— and costly for the American taxpayer.  Under the proposal women would be kept in detention while applying for asylum and children would be put in protective custody. Currently, women and children are released from detention quickly as they wait for a decision on their case, in part, because of a federal appeals court ruling that prohibits keeping children in prolonged detention.

Last year, however, there was an increase in the number of unaccompanied minors and families with children fleeing Guatemala, El Salvador, and Honduras. From October 2016 to January 2017, 54,147 families (typically defined as mothers traveling with their children) arrived at the U.S.-Mexico border with a vast majority from those three Central American nations. The three countries have continued to experience a surge in gang violence and organized crime along with impunity for perpetrators. Over the last three years on average, 88 percent of families passed their credible fear screening—a screening that determines if an asylum seeker has a credible fear of prosecution. Women and girls in these countries  increasingly face the threat of sexual violence, forced prostitution, and gender-based violence by organized crime and gangs.

Women and children fleeing Central America have faced violence in their home country and along their journey. Separating traumatized mothers and children from one another will add to that trauma. In addition, placing children in protective custody will place more of a burden on our child welfare system. Plus, keeping women detained for the duration of their case will increase the number of people kept in detention, which poses increased costs for U.S. taxpayers. During FY2016, the United States spent on average $123 per day on an adult bed in detention and $342 per family unit per day with an annual budget of around $3 billion for detentions.  Maintaining the current policy—which keeps families together—is not only the right course of action, it’s the smart, fiscally prudent course to follow.

The potential policy comes as the Trump Administration pursues more aggressive immigration enforcement policies, including, for example, through new administrative directives. On Monday, President Trump signed a revised executive order (EO) on “Protecting the Nation from Foreign Terrorist Entry into the United States” replacing the earlier controversial executive order on immigration, signed in January, that was blocked by a federal appeals court. The new order continues the ban for ninety days on travelers from Iran, Libya, Somalia, Sudan, Syria, and Yemen but Iraq is no longer included. Iraq’s removal from the list was requested by Defense Secretary Jim Mattis, along with Secretary of State Rex Tillerson and National Security Advisor Gen. H.R. McMaster. It also replaced the indefinite ban on Syrian refugees with a 120-day ban. However, the new order retains a core element of the old one— slashing the total number of refugees to be admitted to the United States per year from around 110,000 to 50,000. As I have written before, since the United States is the largest resettlement country in the world, the decision to cut the total of number of refugees will both adversely affect women and have destabilizing effects globally, as it affects not only the U.S. resettlement infrastructure, but the refugee resettlement landscape worldwide.

*This post is cross-posted at cfr.org.

New research tool (includes blog posts); OUP welcomes feedback

Thanks to our colleague John Louth, Editor-in-Chief for Academic Law at Oxford University Press, for alerting us to the Press’ new, and free, online research tool.

Called ResearchTrack,  it’s designed to help scholars stay abreast of works in their fields, produced not just by OUP but by all publishers. Catalogued are books and journal articles, plus as well as blog posts that treat substantive legal issues.

The beta, which concentrates on Public International Law and International Relations, made its debut here.  It’s well worth a look, and OUP welcomes feedback.

The bare knuckled fight for rights

The past year has been the bleakest of years. At least, for those of us, who believe we are stronger together. And in invoking that particular slogan, I speak more broadly than the US election.  Today many of those acts of international and regional solidarity born and crystallised by war are under threat, or seem so. Under threat by seeming disregard for their ‘founding impulse’ and the laws they constituted. Therein, I invoke, the micro aggressions unleashed by transatlantic  electoral processes, and the macro aggressions enacted in the town lands of constituent members of the UN, most luminously Syria, but not exclusively. Held there are acts of international lawlessness: violations of the laws international human rights and armed conflict, as documented by the Independent International Commission of Inquiry on the Syrian Arab Republic, among others. Those acts, then, have laid bare the omnipresent forces of regression, and in doing so, exposed previously supposed certitudes about international law and its protective capacity as tenuous.

Yet the phoenix will rise, is already rising. Engagement and re-engagement with law has already begun. And this will be as Gina Miller  and Sally Yates both know to their cost, ‘a bare knuckled fight’.  And there I quote Zeid Ra’ad Al Hussein.  It may seem a paradoxical metaphor for High Commissioner for Human Rights. And yet it has always been so: rights have seldom been gifted; they have always been fought for. Still this is a twenty-first century fight few imagined; a battle seemingly to safeguard rather than demand more from the laws of international human rights and armed conflict.  And, if it is to prevail, the fight must be broader and deeper than ever before. It was after all, born, at least in part of a failure of those circles of solidarity, and their constituent members, to embody the precious pledges of their foremothers and forefathers, intra and inter state. Continue reading

Registration Open for Spaces and Places of the Journey to the UK Conference

The Conflict and Disasters Research Group (CONDIS), Lincoln Law School, and Birmingham City University are pleased to announce that their collaborative conference, ‘Spaces and Places of the Journey to the UK: Assessing the Legal Framework for People Fleeing Conflict,’ will be held on 10th April 2017 at the University of Lincoln.  Registration and the full programme are available at the Online Store.
We have a number of academics, including Keynote Speaker Professor Satvinder Juss (King’s College London), presenting their research into the movement of people into Europe, particularly the UK. We are also joined by delegates of the British Red Cross and Newcastle City Council who will talk about human trafficking. In addition, Catriona Jarvis (former Judge) and Syd Bolton will be joining us from Last Rights to talk about their ongoing work.
For any further queries, please contact Dr Christy Shucksmith (cshucksmith@lincoln.ac.uk).

The Alt-One Percent—And Growing

IMG_6561Around the world today, thousands took action in various forms to highlight the ongoing struggle for gender equality while marking the social, economic, cultural, and political achievements of women. These demonstrations in recognition of International Women’s Day served as one positive indication of the sustained collective action that will be necessary to define, build, and carry on the legacy of January’s Women’s March on Washington. Let us not forget that just six weeks ago three to four million people, about one percent of the U.S. population, participated in the largest demonstration in American history. We are a new and growing one percent, defined not by the power we derive from material wealth, but from the power of the people, of democracy in action.

As evidenced today, many have continued to use protests and demonstrations as a core method for promoting a progressive agenda that upholds core American tenets of equality, freedom, and human dignity, views we see in direct contrast to the priorities of our 45th President. Despite this very active form of engagement, a growing disaffection is palpable among a subset of this population, which struggles to articulate a platform beyond mere “resistance.” After all, we have seen other young movements languish when they were unable to articulate an action-oriented platform motivated by specific policy goals.

Perhaps this struggle to define ourselves owes in part to the notion that promoting such fundamental values seems too rudimentary to be a movement in 2017. But this concern must be balanced with the fact that many find strength in an inclusive agenda. After all, our collective voice finds accord in such visions as standing for the “protection of our rights, our safety, our health, and our families,” diminished greed and corruption among the political and corporate elite, and a nation where segments of the population “are no longer systematically and intentionally targeted for demise.” Continue reading

Intlawgrrls 10th Birthday Conference: A Transformative Experience

Last week, I had the pleasure of participating in the 10th Birthday Conference of Intlawgrrls (our direct predecessor) at the University of Georgia.   The conference was organized by Intlawgrrls founder, Professor Diane Marie Amann, without whom this blog (www.ilg2.org) would not be in existence today.  Today is March 8th, International Women’s Day, and in honor of this international holiday, Professor Amann, Intlawgrrls, and all of my female colleagues I wanted to share the following thoughts regarding my experience at the conference. 

 First, the conference was academic in nature.  Although it was a celebration of the blog, its mission and its legacy, every participant was an academic or an aspiring academic, and all presentations focused on scholarship in the field of international law.  I presented a paper on the Karadzic conviction entitled “The Karadzic Genocide Conviction: Inferences, Knowledge and Intent.”  I had previously written about this paper, which will be published in the Emory International Law Review, but in a nutshell, this paper focuses on the judicial reasoning behind the International Criminal Tribunal for Yugoslavia (ICTY) Trial Chamber’s decision to convict Karadzic of genocide.  Karadzic, the former Bosnian Serb leader during the 1990s civil war, was accused, under a joint criminal enterprise theory of liability, of having participated in a plan to murder thousands of Bosnian Muslim males at Srebrenica in July 1995.  Karadzic had also been accused of and convicted of other crimes but my article focuses solely on the genocide conviction.  In order to achieve a conviction on the genocide count, prosecutors needed to establish that Karadzic not only participated, through a JCE, in the common plan to kill Bosnian Muslims, but that he also possessed the special intent or mens rea to do so.  The Trial Chamber concluded that Karadzic had the special intent to commit genocide at Srebrenica by first inferring that Karadzic must have known about what had been going on at Srebrenica, based on a conversation that Karadzic had with another civilian administrator of the region of which there is no direct evidence or testimony, and by then inferring intent from the inference of knowledge.  According the ICTY Trial Chamber, Karadzic must have known that Bosnian Males were about to be killed and he must have intended for this to happen because this was the “only reasonable inference” based on all the evidence.  My article argues that the Trial Chamber performed judicial gymnastics in order to arrive at this conclusion, because other inferences were clearly available based on the evidence on record, such as that Karadzic could have known and agreed to forcibly transfer Bosnian Muslims out of the Srebrenica area (this would amount to ethnic cleansing), but not to actually kill.  My article then argues that the current definition of genocide under the Genocide Convention, and the statutes of the ad hoc tribunals some of which have adopted this definition verbatim, is too narrow, and that, in order to meaningfully use genocide as a crime of international criminal law, we should think about closing the gap between the intent requirements behind ethnic cleansing and genocide.  The intent to ethnically cleanse an area, by forcibly removing a protected group, is in some instances synonymous with the intent to destroy a protected group.  Reconceptualizing genocide would allow tribunals to more easily convict of genocide – in a world where attaching the genocide label to a specific defendant, crime or region has deeper political and historical meaning.

Continue reading

Write On! AsianSIL Interest Group on International Law in Domestic Courts

asiansil-ig-ildc-logoThe Asian Society of International Law’s Interest Group on International Law in Domestic Courts has issued a call for papers for a workshop to be held on 24 August 2017 at Yonsei University, Seoul, South Korea.

The workshop will be held on the occasion of the Sixth Biennial Conference of the Asian Society of International Law (which takes place on 25-26 August). The Interest Group will organize a half-day workshop on the ways Asian courts invoke, interpret and apply international law. For decades, judiciaries across Asia have turned to international treaties, and customary international law, to resolve disputes between private actors on the one hand, and between individuals and the states on the other. Despite this widespread practice, insufficient attention has been paid to the Asian countries’ reception of international law. We hope to use this opportunity to spur scholarly reflection on state practice from any Asian jurisdiction.

Participants may wish to address the following topics:
interpretive methods used by courts to enforce obligations under international human rights treaties;
why courts enforce (or refuse) arbitral awards under the New York Convention;
direct and indirect applications of the Convention on Contracts for the International Sale of Goods;
the rights of prisoners of war under the Geneva and Hague Conventions, or other sources of international humanitarian law;
courts’ citation to reports, recommendations and comments issued by treaty-monitoring bodies and international organizations; and
invocation of unincorporated treaties.
This is by no means an exhaustive list; interested participants are encouraged to reflect on these, and other, topics that would fall within this general category.

Interested researchers and practitioners should send a 500-word abstract and a short bio to the convenors of the IG-ILDC: m.kanetake@uu.nl (Machiko Kanetake) and tjw71@case.edu (Tim Webster). The deadline is 23 April 2017.

Selected participants will be informed by 15 May 2017. Preference will be given to current members of the Asian Society of International Law. Each participant must submit a short paper (5-10 pages) by 15 August 2017 for distribution to the other participants. Panelists will be expected to cover their own travel and lodging costs.