International law

Toward a Feminist Jus Cogens

/ Mary Hansel / Leave a comment

In the wake of recent reporting on jus cogens by the U.N. International Law Commission (ILC), I thought I would share two feminist critiques of the doctrine.

First, “Magic” or Smoke and Mirrors? The Gendered Illusion of Jus Cogens seeks to demystify and debunk the ILC’s positivist methodology for identifying jus cogens norms and reveals the entrenched gender bias of this approach — instantiated by the baseless exclusion of the prohibition on gender discrimination from jus cogens status.

Abstract: International law scholars have referred to the “magic” of jus cogens norms: their exalted status in terms of legal effects, symbolic impact and ability to shape the international legal order. The doctrine’s “magic,” however, is belied by the smoke and mirrors of the prevailing approach to norm identification. This paper explores how the positivist identification process creates an illusion of methodological soundness that serves to marginalize gender.

The paper begins by demonstrating that the positivist approach to jus cogens identification, epitomized by the recent work of the ILC, is irredeemably lacking in the rigor and objectivity to which positivism lays claim. The ILC’s methodology fails to set forth clear benchmarks for attaining jus cogens status; cherry-picks evidentiary items relevant to each norm, in lieu of comprehensive assessments; provides minimal guidance regarding how evidentiary items are to be weighted; and draws from an unreliable pool of evidence. Next, the paper reveals that, as a result of these methodological deficiencies, judicial and non-judicial decision-makers have unfettered discretion in selecting which norms do and do not qualify as jus cogens. They may elect to make decisions based on instinct (“I know it when I see it”), assorted normativist theories (including natural law) or self-interest (as State actors are wont to do). The true bases of their decision-making are unknown, and a sense of jus cogens agnosticism is appropriate. The paper then explains how the discretionary selection process is cloaked and obscured by the positivist promise of an objective, rigorous evaluation — such is the illusion of jus cogens. This illusion facilitates the marginalization of gender, consistent with structural and pervasive biases within international law. The paper concludes with a reflection on potential alternatives to positivism that could yield a more inclusive jus cogens.

The novelty of this paper is three-fold. First, although not the first to lament the methodological failings of jus cogens positivism, it seems to be the first to identify and detail these failings. Second, the paper exposes the discretionary basis of jus cogens decision-making, which is obfuscated by the promise of a rigorous evidentiary calculus. This understanding disrupts the positivism-normativism binary that characterizes much of jus cogens scholarship. Third, the paper shows how the positivist illusion results in the exclusion of feminist priorities. Despite the voluminous scholarship on jus cogens, there appears to be a stunning paucity of feminist literature addressing the doctrine; the paper seeks to fill this lacuna.

Published in: Peremptory Norms of General International Law (Jus Cogens): Disquisitions and Disputations (Dire Tladi ed., Brill 2021)

Second, From Crisis to Quotidian: Countering the Temporal Myopia of Jus Cogens surfaces the doctrine’s temporal bias, which favors (seemingly) discrete crises at the expense of systemic inequalities and other “everyday” issues that most impact women, girls and those with marginalized genders.

Abstract: International law’s tendency to prioritize crises is well-trodden ground in the legal literature. What seems to be missing from the crisis discourse, however, is a nuanced understanding of what these crises are that dominate international law’s attention and resources — the criteria by which crises are defined and identified. This paper seeks to address this gap in the literature and asserts that crises are determined by their temporal character. Situations are considered crises when there is a perceived (or even manufactured) dearth of time; accordingly, international law operates pursuant to “emergency time.” This temporal scheme underpins the selection of jus cogens norms, as demonstrated by the ILC’s recent reports identifying norms that have and have not attained jus cogens status. Indeed, most of the norms confirmed as jus cogens directly relate to crisis, while the norms excluded from this status do not. To redress this temporal bias, this paper proposes alternative temporal approaches derived from feminist literature. The application of these temporalities would result in a set of jus cogens norms untethered from crisis and linked instead to systemic, quotidian issues that most impact women, girls and people with marginalized genders; these issues include discrimination, poverty, domestic violence, environmental protection, access to education and healthcare.

Published in: The Times and Temporality of International Human Rights (Ben Warwick and Kathryn McNeilly eds., Hart Publishing 2022)

Please do not hesitate to reach out with questions, comments or thoughts on future work in this area.

Twitter/X: @maryhhansel

LinkedIn: https://www.linkedin.com/in/maryhhansel/

The Roxham Road saga in Canada, and what it tells us about the popular feeling about migrants worldwide

/ Camille Marquis Bissonnette / Leave a comment

After years of negotiations, Joe Biden and Justin Trudeau have come to an agreement on the expansion of the Third Safe Country Agreement (TSCA) between the United States and Canada to irregular entry points, on March 24th, 2023. This led to the closure of Roxham Road at midnight on the following day. To summarize the legal context, until then, if asylum seekers were to cross the land border between the US and Canada they would be returned to whichever of these two countries they were in first. That is, however, unless they entered the second State through irregular entry points, which were not included in the previous version of the TSCA, adopted in 2002.

The new version of the TSCA, which is not yet publicly available and from which all the details have not yet been unveiled, applies to all crossings, by land or internal waters, including, and this is what is new, those between the regular points of entry. On both sides of the border, this expansion of the TSCA seems to obey public pressure to stop irregular entries into the country. Because people entering irregularly were mainly coming from the US to Canada, Canada agreed to welcome an additional 15,000 migrants from the Western hemisphere, a very mysterious formula, on a humanitarian basis in the upcoming year, to compensate partially.

For me, there is no well-founded argument to support the expansion, and even the upholding of the TSCA, as well as the closure of Roxham Road (see migration law experts on the matter here, here and here). Note, in particular, the TSCA is currently under judicial review by the Supreme Court of Canada for its conformity with the Canadian Charter of Rights and Freedoms.

Even if it would not violate human rights of human seekers per se, there are no measures adopted by States that have ever stopped migration, even the highest and most-sophisticated wall. In addition to being costly for States, obstacles to migration re-locate migration to other borders or to other points of irregular entry, often more dangerous ones. Additionally, they reinforce organized crime at the border by increasing recourse to falsified documents and smugglers, thus increasing security concerns for migrants and at the border. Ultimately, obstacles to migration increase the number of undocumented migrants within the country. Indeed, even though some asylum seekers used to enter the Canadian territory through an irregular entry point such as Roxham Road, they were screened by the RCMP – including on security grounds – and entered the regular asylum system by depositing a demand for asylum as soon as they arrived. It won’t be the case now that Roxham Road is closed since they will enter via clandestine means or paths and will thus not be identified and screened upon entry.

Yet the narrative that brought the Canadian government to negotiate to expand the TSCA and close Roxham Road is strong and deeply rooted in the political and popular discourses. Indeed, there has been a torrent of political and editorial calls for the closure of Roxham Road in Canada (see, for example, the public letter of Quebec’s Prime Minister and the comparison of a crossing of Roxham board with an all-inclusive trip by a federal opposition party on its social media). In January 2023, there were 68% of the population in the province of Quebec in favour of closing Roxham Road. 

To be fair, people in Quebec feeled that, because Roxham Road, the main irregular entry point between the US and Canada, is on their soil, they beared a disproportionate responsibility towards asylum seekers within Canada. If it may be true that Quebec used to bear an important part of the “burden” of asylum seekers in Canada, the mere repeal of the TSCA was a valid option; expanding it and closing Roxham Road cannot be the right solution. 

In any case, the number of entries has to be nuanced; in 2022, only 40,000 persons have entered Canada through Roxham Road. In comparison, on the American continent, approximately 340,000 asylum seekers present themselves on the southern border of the United States each year. Brazil and Costa Rica have received more than 200,000 claims each in 2022, and Peru 537,000. There are currently, according to the UNHCR, 4.9 million asylum seekers worldwide.

Be it as it may, my aim here is not to focus on the federal disputes between Quebec and the rest of Canada regarding migration. Rather, I now wish to briefly explore what the massive popular and political mobilization against Roxham Road in the past few months tells us about the global perception of migrants. Indeed, mistrust towards migrants, refugees, and asylum seekers, and a tendency to border closure is not unique to Canada. New border walls are built every year in the hope of preventing migration; from six fences at the fall of the Berlin wall, this number has grown to somewhere between seventy and eighty, most of them erected after the turn of the millennium. This is without mentioning the various externalization practices of States, especially Western States, such as pushback, non-rescue of migrants at sea, offshore detention, abroad processing, etc. Economic, social, political, cultural and security considerations motivate such practices. Canada is no exception. But there is also, underlying these initiatives, a fundamental mistrust of humankind towards the «other», the «stranger», no matter how they have been defined throughout history. 

More specifically, this strong tendency of fear towards the «other», the «stranger», has been reinforced after 9/11, through frequent equations between the “migrant” and the “terrorist”, even more so between the “refugee” and the “terrorist”. This has been vehiculated by populist parties and movements, by media, but also through international legal instruments (see, for example, UN Security Council Resolution 1373, para 2(c) and  3(f) and the 2006 UN Global Counter-Terrorism Strategy adopted by the General Assembly, para 2 and 7 of the second pillar (similar provisions still figure is the latest updated version of the UN Global Counter-Terrorism Strategy of 2021, see para. 32 and 38)). Yet the amalgam of terrorism with asylum seekers or refugees has never been supported by scientific data. Indeed, it cannot be demonstrated that the welcoming of refugees or asylum seekers puts a country at higher security risks, even in the case of massive displacements (which was not the case through the Roxham Road in Canada). Indeed, the sole correlation that has been established between refugees and terrorism is the increase of hate crimes by homegrown right-wing movements or individuals towards migrants in countries that welcome a high number of migrants.

Indeed, I find it very shocking that Quebec and Canada respectively pushed towards and adopted measures leading to the closure of Roxham Road. This obeys the popular favour, but counters all logic, where there should be a public responsibility to educate and inform the population. Such a political decision not only goes counter to reasonable thinking (let’s not forget, if it needs to be added, that Canada is under a severe labour shortage, with more than one million vacant positions in Canada, this currently being the most severe challenge for businesses in the country) but contradicts also the most elementary considerations of humanity. It must be kept in mind, indeed, that contrarily to the widespread belief, asylum seekers who used to cross through Roxham Road were not coming for vacations nor to benefit from our public services, but were fleeing for their lives, security, liberty and most fundamental human rights, leaving everything they love, as well as friends and part of their families behind. This was everything but an easy journey, and, even for those who were to be granted asylum, it was very far from being finished when they entered Canada.

COVID-19 hate crimes: Identifying the Real Virus that infects us [Part – II]

/ Tejaswini Kaushal / Leave a comment

Actions taken by the USA to control COVID-19 hate crimes

COVID-19 hate crimes act in the US

To address the nationwide spike in hate crimes against Asian Americans in 2022, US President Joe Biden signed the COVID-19 Hate Crimes Act in May 2022. Following expert testimony about the spike in crime and grassroots pressure to defend Asian-American neighborhoods, the bipartisan measure was signed. The new Bill aims to enhance law enforcement’s ability to deal with hate crimes through public education campaigns, hate crime hotlines, and training for recognizing hate crimes. The Justice Department will quicken investigations and improve data gathering. The legislation aims to increase public awareness and accessibility of hate crime reporting at local levels.

Overview of the Act

The Congressional Research Service’s description of the Act lists five important provisions:

  1. A designated DOJ officer must expedite the review of hate crimes and related reports.
  2. State, local, and tribal law enforcement must receive DOJ guidance on setting up reporting procedures for online hate crimes and gathering information on protected characteristics.
  3. The DOJ and HHS must release recommendations to increase awareness of hate crimes during the COVID-19 pandemic.
  4. The Act creates funds for state-run hotlines, crime reduction initiatives, law enforcement programs, and the National Incident-Based Reporting System.
  5. Judges may impose community service or educational requirements as a condition of supervised release for those found guilty of a hate crime charge on probation.

Criticism of the Act

Stop AAPI Hate criticized the new law for giving law enforcement more authority, saying that it will only address hate crimes rather than significant hate incidents since it focuses on criminal law enforcement authorities in its remedies. They urged the federal government to address systemic racism and oppression through funding community-based organizations, enhancing civil rights laws, investing in mental health and immigration services, and supporting all communities’ voices and historical events.

Activities undertaken post the Act’s enactment

On the first anniversary of the COVID-19 Hate Crimes Act, the Department of Justice launched initiatives to prevent and address hate crimes and bias-related occurrences. They released new guidelines in collaboration with the HHS to increase understanding of COVID-19-related hate crimes, distributed grant requests for state-run hotlines and neighborhood-based strategies, and hired their first Language Access Coordinator.

Law enforcement systems for reporting, tracking and tackling hate crimes

The COVID-19 Hate Crimes Act was passed to enhance hate crime reporting, response, and prevention at the federal level. However, there is a trust issue between Asian American communities and the police. Some states, such as New York City, have acted to improve this relationship by creating specialized teams to respond to pandemic-related violence and harassment and to educate people about their rights.

Furthermore, many Asian Americans lack confidence that local police will treat them with respect and courtesy, with only 24% feeling very confident. 73% support training law enforcement to recognize anti-Asian American and Pacific Islander bias should be given. Additionally, there is a need to increase the number of Asian American police officers in locations with large Asian American populations since they make up 6% of the US workforce but only 2% of police officers.

As a positive intervention, states like New York City have established special response teams to address pandemic-related hate crimes and improve trust with the Asian-American community by providing education, referrals, and investigations.

Provision of health care facilities, especially mental health services

Health systems need to be prepared to provide culturally and linguistically suitable services (CLAS) to Asian American patients who may have experienced trauma. Clinicians of Asian American origins may need to establish trust with patients who have experienced violence and discrimination. Online services like the Asian Mental Health Project and the National Asian American Pacific Islander Mental Health Association can link Asian Americans with culturally sensitive practitioners. Medical education should emphasize cultural sensitivity, and providers should inquire about prejudice, violence, and mental health issues with patients, as well as be aware of the social isolation and financial difficulties brought on by the pandemic. A responsive mental health workforce is critical, as many Americans of Asian origin may be hesitant to seek treatment.

Devoted research and funding

Only 0.17% of the National Institutes of Health’s research budget is allocated to studying the health requirements of AANHPI despite making up 7.0% of the US population. The Asian American Foundation has pledged significant multimillion-dollar community investments to address bullying in schools and engage interfaith leaders and journalists.

Education in schools

DOJ and the Department of Education offer resources to combat COVID-19-related harassment in schools, while school-based interventions can reduce racism and hate speech. 73% of Asian Americans support initiatives to educate the public on recognizing anti-AAPI bias to address their historical underrepresentation in society. AANHPI’s historical contributions to the US must be recognized, and more awareness is needed to combat entrenched prejudice and conflicts.

Removing public health reporting of bias

WHO and CDCP had cautioned that racially discriminatory rhetoric during COVID-19 can result in victimization, stigmatization, and division of people. President Biden signed an executive order directing agencies to prevent racism and xenophobia against AANHPIs. Furthermore, the new White House Initiative on Asian Americans, Native Hawaiians, and Pacific Islanders, co-chaired by Xavier Becerra and Katherine Tai, aims to resolve bullying and discrimination, improve quality and fragmentation, expand language translation, and better understand multigenerational household needs. Some local governments have approved resolutions condemning xenophobia.

INTERNATIONAL OBLIGATIONS

1.      International Convention on the Elimination of All Forms of Racial Discrimination

This convention requires nations to “condemn” and eradicate racial discrimination and improve tolerance among all races.

2.      Committee on the Elimination of Racial Discrimination

The Committee on the Elimination of Racial Discrimination (CERD) calls for governments to formally reject hate speech and launch awareness programs and educational policies to combat racism. Training for the police and legal systems is also important to ensure familiarity with international obligations protecting free speech and expression while safeguarding against hate speech. Human Rights Watch recommends that all governments establish action plans to address new forms of discrimination and xenophobia, with the UN High Commissioner for Human Rights providing guidelines for best practices.

Analysis and Conclusion

The incidents of brutality that are pursued in a developed, liberal and tolerant country like the United States put the whole world in a terrible shock. Though change has been brought across the nation to curb the discrimination and hatred towards the Asian-American community, future steps are required to address the growing public health concern of violence against Asian Americans, eradicate prejudice and hatred against Asian Americans, assess new tactics, and determine the future’s most effective methods of health and healing.

COVID-19 Hate Crimes: Identifying the Real Virus that infects us [Part – I]

/ Tejaswini Kaushal / Leave a comment

Asian Americans have reported a surge in hate crimes, including physical violence and harassment, since the outbreak of COVID-19. Health crises such as pandemics have historically been linked to stigmatization and discrimination against Asian people. From their arrival in America in the late 1700s, Asian Americans have faced verbal and physical abuse driven by personal racism and xenophobia. Discriminatory rhetoric and exclusionary policies have also been supported by the state, sustaining this violence at the institutional level. Insecurity and fear of foreigners have been exacerbated by COVID-19, leading to an increase in anti-Asian hate crimes, perpetuating inequality at individual and institutional levels.

What does one mean by a hate crime?

Hate crimes are a pernicious form of violence that target individuals or groups based on their membership or perceived membership in certain social or racial categories, such as ethnicity, religion, gender identity, sexual orientation, and disability, in the form of physical violence, property damage, harassment, and even murder. Hate crimes are distinct from hate speech, which refers to specific types of language that incite hatred or discrimination. Furthermore, while a hate crime is a criminal act, a ‘hate incident’ is noncriminal behavior driven by prejudice, which can potentially culminate into a hate crime.

The rippling consequences of hate crimes

The psychological effects of hate crimes can be profound and far-reaching, not just for the individuals who are directly affected but also for others. Victims of hate crimes that were motivated by hate and prejudice have been shown to have higher levels of psychological distress, including symptoms of despair and anxiety, than those of crimes not perpetuated due to xenophobia or racism. The following reasons for such an evaluation were addressed in a 1999 study:

  1. Hate crimes cause psychological and emotional harm as well as self-esteem issues to the individual victim.
  2. Hate crimes create a generalized fear among the targeted group.
  3. Hate crimes have a ripple effect on other vulnerable groups who associate with the targeted population.
  4. Hate crimes cause severe melancholy and stress in the entire community.

Hate crimes witnessed during the pandemic

The manifestation of the “Othering” theory

“Othering” is a process of marginalization and exclusion that occurs when a dominant group stigmatizes and excludes non-dominant groups who are racially different or lack a sense of “civic belonging”. This process is rooted in prejudice and fear and strengthens the dominant group’s perception of their own “normalcy” while categorizing those who are different as “abnormal.” This historical and ongoing process results in the disempowerment and social exclusion of marginalized groups.

Historical experiences of “othering” by Asian Americans

The projected immigration population of Asians in the US has grown dramatically yet prejudice and hate against them have been ongoing and they are frequently blamed for spreading disease during pandemics, and Asian Americans have historically been “othered” as an edifice and falsely portrayed as a model minority. This has resulted in microaggressions, hate crimes, and other forms of discrimination, like being labeled ‘dirty’ or ‘sickly’ during the pandemic. Asian Americans have been targeted regardless of their multiethnic identity, especially during times of economic instability, adversity, insurgency, or epidemic.

Burgeoning Anti-Asian hate crimes during the COVID-19 pandemic

In addition to prosecuting racial assaults against Asians and individuals of Asian origin, governments should take immediate action to stop racist and xenophobic violence and prejudice associated with the COVID-19 outbreak, according to a statement released by Human Rights Watch. Antonio Guterres stated that a “tsunami of hate and xenophobia, scapegoating and scaremongering around the world” and he asked states to “act now to strengthen the immunity of our societies against the virus of hate“. Government officials and political parties in various countries have used the COVID-19 pandemic to spread anti-immigrant, xenophobic, and white supremacist beliefs. This has resulted in an increase in hate crimes against minorities, including Asians.

Recent COVID-19 hate crime incidents in the US

Over the past year, more than 6,600 hate crimes have been reported against Asian-Americans, according to the advocacy group Stop AAPI Hate. Over the two years that the COVID-19 virus was widespread, several cases of violence and hate crimes in public spaces came up in the US. Some of the most preposterous attacks include homicide of an 84-year-old Thai immigrant on his daily walk in San Francisco, a 91-year-old senior being pushed to the ground in Oakland, assault and setting on fire an 89-year-old Chinese woman in Brooklyn, six Asian-American women being were shot at work in Atlanta, stabbing of two Asian American ladies at a bus stand in San Francisco,  among countless others.

Asian-American community lacked timely and sufficient support during the rise of hate speech in the US, possibly influenced by Trump and Pompeo’s use of “Chinese virus” and “Wuhan virus” in 2020. While Trump later stopped doing so, he did not call for government action either. In contrast, President Biden did bring out reforms to protect the Asian-American community in 2021.

Related issues with COVID-19 hate crimes in the US

Hate crimes often go unreported due to obstacles that hinder victims from reporting to local police, resulting in underreporting and a partial picture of the prevalence of hate crimes. Language barriers can also prevent Asian immigrants from reporting victimization. Additionally, mistrust of law enforcement and concerns about immigration status may deter victims from reporting hate crimes.

International Law and International Human Rights Law Programming at the 2023 AALS

/ Milena Sterio / Leave a comment

For those attending the 2023 AALS Annual Meeting in San Diego, California, here is a list of all International Law and International Human Rights Law-related programming.

  1. Conflict in Ukraine: Can Prosecuting Atrocity Crimes Make a Difference? (organizer/moderator Leila Sadat)

Cosponsors: Section on Comparative Law, Section on International Human Rights, Section on Global Engagement

Friday, January 6, 2023, 10:00 – 11:40 AM 

This program will focus on the atrocities committed during the conflict in Ukraine, from 2013 to the present time, as well as state responses to those actions. We will explore the actions of the International Criminal Court (ICC) and other justice mechanisms, including national systems, and the steps needed to investigate and prosecute atrocity crimes, as well as the political and diplomatic challenges to those prosecutions. We will also explore the reluctance of the United States to embrace the ICC as a global institution and the implications of that hesitancy for the legal academy and the Court. Finally, the panel will ask whether and how prosecuting atrocity crimes can make a difference either in Ukraine or elsewhere.

  • Second Program: Global War and Conflict in Ukraine and Beyond:  An Effective and Balanced Response? (Organizers/Moderators Craig Martin & Sahar Aziz)

Cosponsored by the Section on Comparative Law, the Section on Global Engagement, the Section on Litigation, and the Section on International Human Rights

Saturday, January 7, 2023, 8:30 – 10:10 AM 

The conflict in Ukraine, almost more than any other, has brought a host of international institutions and mechanisms to the fore and sparked litigation all over the globe. The United Nations Security Council, General Assembly, International Court of Justice, Committee on the Elimination of Racial Discrimination, Human Rights Council, European Court of Human Rights, World Trade Organization, and International Criminal Court are among the institutions that have acted or been engaged in addition to national courts.  Have national and international institutions been effective?  And why has the response in Ukraine seemingly been so different than the response in Syria, Yemen, Sudan, Israel/Palestine and a host of other “hot spots” around the world? This panel will take a look back at the events of 2022 and take stock of how well our international institutions have handled (or weathered) the events that unfolded.

  • Pedagogy Program: How Can Students and Faculty Make a Difference via Teaching and Clinical Work in Times of Crisis? (Organizers/Moderators Cindy Buys, Charlotte Ku & Milena Sterio)

Cosponsored by the Section on Global Engagement, Section on International Human Rights, and Section on Comparative Law. (Also cosponsored by teaching international law committee of ABILA.)

Friday, January 6, 2023, 3:00 – 4:40 PM

In light of conflicts around the globe, refugee flows, and human rights crises, this discussion will explore creative ways for faculty and students to make a positive difference and contribute to the development of international law through clinics, pro bono work, internships, externships, and other activities.

  • Discussion Group: Russia v. Ukraine: Implications for a New Global Order (organizer/moderator: Milena Sterio)

Thursday, January 5, 8:00 – 9:40 AM

This program will be a discussion group composed of experts who have studied the role of international law and international institutions in world affairs. The overall goal of this program will be to assess whether the ongoing conflict in Ukraine has the potential to disrupt the existing global order and our understanding of the role which international institutions play in global affairs. In addition, the panelists will focus on what role law schools will be able to play in terms of shaping such a possible new world order.

  • New Voices in International Human Rights (organizer/moderator: Milena Sterio)

Saturday, January 7, 1:00- 2:40 PM

This program will feature presentations by emerging scholars in the field of International Human Rights.

  • (organizer Tom McDonnell) 

Co-sponsored by the International Law Section.  

Friday, January 6, 1-2:40 PM

This Program covers the following: (a) To recognize that sanctions may advance the right to life; condemn Russia’s aggression, war crimes, and gross human rights violations against Ukraine; and may deter other states from violating international humanitarian law and human rights, and (b) To examine the intended and unintended consequences of general rather than smart sanctions; to acknowledge that few civilians bear responsibility for Russia’s aggressive war, war crimes, or gross human rights violations; and to analyze whether general sanctions violate the economic, social and cultural rights of the most vulnerable of the Russian civilian population.

Launching a Global Campaign Against Gender Apartheid in Afghanistan

/ Stephanie Farrior / Leave a comment

Three items to share on this, the one-year anniversary of the Taliban takeover of Afghanistan:

Register and attend what promises to be a riveting discussion on Global Strategies for Countering Gender Apartheid in Afghanistan on Friday 19 August 2022, with courageous Afghan women human rights defenders like Shaharzad Akbar and Zarqa Yaftali and international partners like the University of Michigan’s Professor Karima Bennoune and Human Rights Watch’s Heather Barr. Register here.

View filmmaker Ramita Navai’s documentary Afghanistan Undercover, about which noted interviewer Terry Gross of the program Fresh Air remarked in her interview with Navai: “I feel like the world isn’t watching as carefully anymore. And your documentary was a wake-up call to me. . . . things have gotten so dire for women there.”

Read Professor Bennoune’s powerful analysis The Best Way to Mark the Anniversary of Taliban Takeover? Launch a Global Campaign Against Gender Apartheid in Afghanistan, which explains why “it is critical to commit to a more effective and principled global response, and to do so by recognizing this grave set of abuses for exactly what it is: gender apartheid.”

Feminist methods in international law 

/ Cochav Elkayam-Levy / Leave a comment

Feminist methods in international law understood– A path to transformation: Asking “The Woman Question” in International Law / Cochav Elkayam-Levy


Methods matter and the discussion over feminist methods in international law is an important one. As Kathrine Bartlett famously noted, “thinking about method is empowering.” It makes us more aware of the nature of what we do and what we aim to improve in the law. Consequently, we can act more effectively when we examine legal structures and do it with a stronger sense of commitment to our feminist work. Methods are also the fundamental means by which we produce “valid knowing.” The discussion of feminist methods in international law is one that engages with the combination of rules and assumptions that shape and delimit our views about the exclusion of women’s experiences from this doctrine. Despite their significance, feminist methods in international law have been deserted. They seem neglected in ways that have weakened the sense of discipline that nurtures our feminist knowing. The prospect of clarifying some of the vagueness is the primary motivation for this new article. The article is dedicated to identifying, explaining and differentiating feminist methods in international law.
It then introduces the potential contribution of the method of asking the woman question – or what can be also termed as the gender question for broader inquiries about people of all genders – as a transformative question – for the work of many international lawyers on their path to developing feminist consciousness. It encourages a bold ambition to tackle structural barriers, embracing a commitment to transformative equality.
While this question seeks to highlight and address the continuing injustice that
women experience, it also allows scholars to see beyond the gender binary in ways that take into consideration a spectrum of genders and the impact of the law on people of all genders. It proposes clarity and promises a feminist sensitivity to any analysis of international law. Based on this method, the article develops a unique analytical model that tackles the distinctive structural ways in which the international legal system perpetuates women’s inequality.

The model is predicated on the evolving global idea of transformative equality – which I further develop in my research – asking us to reimagine the rules by which our society operates. It urges scholars to undertake a transformative reconstruction endeavor asking –

How would the law look like in a gender-just society? What rules would we have had women had a part in the design of the law? How would the law look like if women had equal social power? (pages 473-5).

It is intended to encourage transformative processes that confront entrenched social and legal gendered structures within the international legal system. It requires a complicated intellectual effort to reimagine the future as means to move toward a gender-just global system. Hopefully, reimagining the future will be the most empowering, fulfilling, and transformative result of this work.

Recommended Citation
Cochav Elkayam-Levy, A Path to Transformation: Asking “The Woman Question” in International Law, 42
MICH. J. INT’L L. 429 (2021).
Available at: https://repository.law.umich.edu/mjil/vol42/iss3/2
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3543189

Prosecution of Environmental War Crimes at the ICC: Exalted Thresholds

/ Ananya Mukherjee / Leave a comment

This post traces the history of Article 8(2)(b)(iv) (“Article”) of the Rome Statute (“Statute”) – the codification of the first international environmental war crime. The author argues that the Article’s exacting standard renders it toothless.

Countries today are in agreement that the environment is a ‘global common’; a resource shared by one and all, not limited by sovereign boundaries. Time and again, the international community has entered into agreements to motivate member state(s) to protect and reinvigorate the environment. For instance the Paris Agreement, Kyoto Protocol and the UN Framework Convention on Climate Change are all aspirational frameworks pushing states to rethink their relationship with the environment. However, there are no real legal ramifications for the non-performance of these agreements, and their observance has largely been left open to the whims of politics and diplomacy. Moreover, these agreements are limited to state responsibility and do not percolate down to actions of individuals or other non-state actors.

International frameworks with legal consequences, such as the AP-1 to the Geneva Convention, (“AP-1”) are traditional in nature. These frameworks recognize international responsibility of states for ‘environmental destruction’ only in the backdrop of internationally recognized crimes perpetrated against ‘mankind’, such as genocide, crimes against humanity, or recently, crimes of aggression. International conventions such as the UN Convention on the Prohibition of Military or Any Other Hostile use of Environmental Modification Techniques, 1976 (“ENMOD”), removed the need to situate environmental destruction in the backdrop of a concomitant international crime. Notwithstanding, the thrust of ENMOD depends on “damage, destruction or injury” caused to the state. The terms “damage, destruction or injury” have canonically been interpreted in an anthropocentric form, meaning consequent damage to the civilian population.

Eclipsed by climate change and environmental destruction, with rising temperatures and sinking cities, mankind today has been brought face to face with a harsh reality. The environment, as a victim ofcorporate negligence, wanton human behaviour, and silent sufferers of armed conflict, has borne countless losses. The repercussions of such prolonged environmental neglect and degradation are both far ranging and immutable. Recognizing the need for inter-generational equity; the international community through its collective duty to preserve and secure the environment conferred it with independent legal protection. With the Statute in force, and the establishment of the ICC in 2002, the world saw the advent of the first ecocentric war crime.

Ingredients of Article 8(2)(b)(iv)

Successful prosecution under this Article requires that conjunctive benchmarks of “widespread, long term, and severe” damage to the environment be met in the context of an international armed conflict. The meanings of these terms are not defined within this Article, the Statute, or in secondary sources of interpretation as per the Vienna Convention on the Law of Treaties, 1969. The lack of a definition is exacerbated by Article 22 of the Statute which states that “ambiguity” should be interpreted favourably towards the accused.

The preparatory material of the Statute refers heavily to ENMOD and AP-1. Under these conventions the term “widespread” has a geographical bearing, and typically a damage of 100 square kilometres or upwards satisfies the element of “widespread” damage.

The term “long-term”, as the ordinary meaning suggests, has a temporal connotation. It refers to the continued effects of an attack. “Long-term” under AP-1 means negative environmental effects lasting a minimum of 10 years. Given the difficulty in evaluating lasting environmental damage at the time of the attack, it is likely that the drafters of the Statute viewed the quantum of 10 years as a range for understanding the term “long-term” and not a minimum threshold. Environmental impact assessments need to be carried out to gauge long-term effects of an attack. These involve significant costs and questionable efficacy.

Similarly one may look to AP-1 to understand the term “severe”, which refers to the potency of damage on the human and non-human environment. This interpretation takes us back to an anthropocentric approach; an otherwise progressive provision once again ties itself to civilian damage as a crucial factor in affixing international criminal responsibility.

Mens Rea and Military Objectives

The environment has often been the subject of wartime military attack, be it the scorched earth policy of the Napoleonic Wars to the use of  “Agent Orange” during the Vietnam War. The Article seeks to recognize the military’s strategic needs in conducting an offensive against the environment; it rationalizes that the damage being “widespread, long-term and severe” should also be “clearly excessive to the concrete and direct overall military advantage.” The Office of the Prosecutor, ICC opined that “clearly excessive” does not pertain to instances of collateral damage, which is purely a function of the proximity between civilians and military targets. Similarly in Prosecutor v Milan Martic, the ICTY held that any ensuing harm to civilian objects, such as the environment, cannot be justified in the “absence of closeness” between such objects and the legitimate military target.

Additionally, liability under this Article is confined to wrongdoings by military operatives in leadership positions. It provides a safe harbour to individuals without decision making powers in the military chain of command. “Leadership positions” are determined on the basis of an individuals’ say on the nature, timing, type, extent, and the general scope of the military attack. The military advantage is also qualified by the terms “concrete and direct”. The International Committee of the Red Cross has reflected that these terms do not justify “barely perceptible” military advantages. A military officer ordering an attack is required to demonstrate the potential military advantage and its nexus with the environmental attack.

Conclusion

Environmental crimes had been codified prior to 2002 under several international treaties in an anthropocentric fashion. This approach detracted from the damage caused to the environment, an object worthy of protection in and of itself. While the Article is certainly a harbinger in delinking environmental protection and damage from civilian harms, its exacting standard renders it toothless.      

Unsurprisingly, we are yet to see a single prosecution or investigation launched under this provision. Particularly in the context of gross environmental damage during recent day international armed conflicts, such as the Syrian War and the Ukraine War which are plagued by indiscriminate bombing, non-differentiation between military and civilian objects, and chemical warfare, which has the potential to pollute the lands and waterways of the country for generations to come. The ICC, as the only international court equipped to prosecute and convict individuals for crimes of international magnitude is wanting in realizing its potential.

April 18 – Ukraine Panel

/ Milena Sterio / Leave a comment

Please join us for this upcoming panel on the conflict in Ukraine – organized by the American Society of International Law, Transitional Justice and the Rule of Law Interest Group, and co-sponsored by the AALS International Law and International Human Rights Law Sections.

April 18, 2022

12:00 p.m. – 1:00 p.m. EST

The Ukraine Conflict: Expert Roundtable on Transitional Justice and International Criminal Law Issues

Organized by the Transitional Justice and Rule of Law Interest Group, American Society of International Law; co-sponsored by the AALS International Law and International Human Rights Law Sections

Panelists:

Milena Sterio, The Charles R. Emrick Jr. – Calfee Halter & Griswold Professor of Law, Cleveland-Marshall College of Law (moderator)

Vladyslav Lanovoy, Professor, Law Faculty, Universite Laval (Canada)

Pavlo Pushkar, Head of Division, Department for the Execution of Judgments, European Court of Human Rights

Margaret deGuzman, James E. Beasley Professor of Law, Temple University Beasley School of Law and Judge of the Residual Mechanism for International Criminal Tribunals

Rebecca Hamilton, Associate Professor, Washington College of Law, American University

Leila Sadat, James Carr Professor of International Criminal Law, Washington University School of Law and  Special Advisor on Crimes Against Humanity to the ICC Prosecutor

Milena Sterio is inviting you to a scheduled Zoom meeting.

Zoom Information:

Join Zoom Meeting

https://csuohio.zoom.us/j/84851000100

Meeting ID: 848 5100 0100

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Towards a Decoupled Peace

/ Cecilia Marcela Bailliet / Leave a comment

President Zelensky made an impassioned plea to the United States in his address to the US Congress on March 16th- “To be the leader of the world means to be the leader of peace”.[1]  The same day China’s Ambassador to the United States, Qin Gang, authored an Op Ed in the Washington Post titled “Where we stand in the Ukraine” in which he insisted that China did not have prior knowledge of the invasion of the Ukraine, that Taiwan is not the same as the Ukraine (which it views as a sovereign a state, while Taiwan is considered to be an inseparable part of China), that China remains interested in promoting a cease fire and providing protection to civilians, and that China is committed to an independent foreign policy of peace.[2]  He states that China supports regional and global stability. Qin Gang defines a type of regional peace that is based on security, and ironically correlates with the conception of peace as linked to security in the German Constitution, Article 24.2, which itself is increasing its defense budget significantly[3]: “The long-term peace and stability of Europe relies on the principle of indivisible security.” This signals a recognition of the relevance of regions or “neighborhoods” in which stability or peace is dependent on security.

In 2021, the US National Intelligence Council published a report on Global Trends 2040: A More Contested World that offered five scenarios for what they estimated the geopolitical context would look like by 2040.[4]  Scenario 4 is called Separate Silos, the summary explains:

“In 2040, the world is fragmented into several economic and security blocs of varying size and strength, centered on the United States, China, the European Union (EU), Russia, and a few regional powers, and focused on self-sufficiency, resiliency, and defense. Information flows within separate cyber-sovereign enclaves, supply chains are reoriented, and international trade is disrupted. Vulnerable developing countries are caught in the middle with some on the verge of becoming failed states. Global problems, notably climate change, are spottily addressed, if at all … By the early 2030s, cascading global challenges from decades of job losses in some countries in part because of globalization, heated trade disputes, and health and terrorist threats crossing borders prompted states to raise barriers and impose trade restrictions to conserve resources, protect citizens, and preserve domestic industries. Many economists thought that economic decoupling or separation could not really happen because of the extensive interdependence of supply chains, economies, and technology, but security concerns and governance disputes helped drive countries to do the unthinkable, despite the extraordinary costs.”[5]

This scenario is indicative of increased regionalism characterized by a decoupling of the networks that Mark Leonard described as essential elements of The Age of UnPeace– information, trade, etc. that led to the persistent state of competition and conflict before the war in the Ukraine.  In short, this is a movement towards a “Decoupled Peace” in which the connections that increased conflict through competition are deliberately severed. Russia has been isolated by disinvestment and sanctions and it left the Council of Europe after being suspended. The European Union seeks to decouple its energy dependence on Russia by a contradictory bifurcated resort to alternative sources of oil and coal, even from governments subject to sanctions previously, and increase investment in renewable energy and nuclear energy.[6]  Nevertheless, the international community appears unable to prevent the global hunger crisis that will devastate the African continent due to the blocking of wheat, corn, barley, and fertilizer from Russia, Belarus, and the Ukraine.[7] The path from war to Decoupled Peace is undeniably tragic.

[1] Text of Ukrainian President Zelensky’s address to Congress – The Washington Post

[2] Opinion | Chinese ambassador Qin Gang: Where China stands on Ukraine – The Washington Post

[4] GlobalTrends_2040.pdf (dni.gov)

[5] P. 116

[6] Renewable energy targets (europa.eu) Europe wants more renewables to increase its energy security | EURACTIV PR European Commission declares nuclear and gas to be green | Europe | News and current affairs from around the continent | DW | 02.02.2022  Are Iran and Venezuela viable alternatives to Russian gas? — Quartz (qz.com)

[7]https://www.nytimes.com/2022/03/20/world/americas/ukraine-war-global-food-crisis.html