united states

La possibilité tangible de l’amorce d’une enquête relative aux crimes internationaux commis sur le territoire afghan

/ Jessica Dufresne / 1 Comment

À l’aube de l’ouverture de la 15e session de l’Assemblée des États parties au Statut de Rome de la Cour pénale internationale (AÉP), la Procureure la Cour pénale internationale (CPI), Fatou Bensouda, a annoncé publiquement que l’examen préliminaire de son Bureau concernant la situation en Afghanistan pourrait déboucher de façon imminente sur l’ouverture d’une enquête relative aux allégations de crimes contre l’humanité et crimes de guerres qui auraient été commis par les Talibans, les services de sécurité afghans et le personnel des forces armées américaines dans le cadre du conflit armé opposant les forces progouvernementales et antigouvernementales.

Quelques jours plus tard, le Bureau du Procureur a publié le Rapport sur les enquêtes menées en 2016 en matière d’examen préliminaire (« Rapport 2016 ») dans lequel la Procureure Bensouda réitère que toutes les conditions requises pour ouvrir une enquête sont présentes et indique que « le Bureau [étant arrivé] au terme de son évaluation des facteurs énoncés aux alinéas a à c de l’article 53-1 du Statut, [il] s’apprête à décider, de façon imminente, de demander ou non à la Chambre préliminaire l’autorisation d’ouvrir une enquête sur la situation en République islamique d’Afghanistan à compter du 1er mai 2003 ».

Le premier Procureur de la CPI, Louis Moreno Ocampo, avait annoncé publiquement en 2007 l’ouverture d’un examen préliminaire en Afghanistan, qui a ratifié le Statut de Rome le 10 février 2003, donnant ainsi à la CPI une compétence sur les faits commis sur le territoire afghan ou par des ressortissants de ce pays à compter de 2003 pouvant constituer des crimes au sens de ce traité international.

Elle s’insérait alors dans le contexte du conflit en Afghanistan, amorcé dans la foulée des attaques terroristes du 11 septembre 2001, aux États-Unis. À la suite à ces attaques, une coalition de pays dirigée par les États-Unis a procédé à des frappes aériennes et à de multiples opérations terrestres en Afghanistan afin de déloger les Talibans, associés au réseau d’Al Qaeda. Ces opérations ont permis d’évincer les Talibans du pouvoir et de former un gouvernement provisoire en décembre 2001 sous les auspices de l’ONU, avant d’être remplacé en 2002 par un nouveau gouvernement afghan de transition. Les affrontements se sont néanmoins poursuivis et les Talibans et autres groupes armés opposés aux forces gouvernementales ainsi qu’à leurs alliés occidentaux ont regagné du terrain dans le sud et l’est du pays. Le conflit armé s’est par la suite intensifié et s’est étendu au nord et à l’ouest, alors qu’ont persisté de violents combats qui, entre 2007 et juin 2015, ont causé la mort de plus de 23 000 civils conformément aux chiffres révélés par la Mission d’assistance des Nations Unies en Afghanistan (MANUA)[1].

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Announcements

/ Osazenoriuwa Ebose / Leave a comment

New Grants Available

Two EU grants advertised for work relating to children’s rights, specifically focusing on children’s rights in the context of migration/asylum and children-centred approaches to child victims of violence. Please forward on to European colleagues you think might be interested. For a link to the grants, click here.

Jobs

Manager, Ferencz International Justice Initiative

The United States Holocaust Memorial Museum is looking for a dedicated and passionate individual to join the Museum’s team and help support our mission. The Simon-Skjodt Center for the Prevention of Genocide works to ensure that the United States government, governments around the world, and multilateral organizations institutionalize structures, tools, and policies to effectively prevent and respond to genocide and mass atrocities.

The Simon-Skjodt Center is seeking a Manager, Ferencz International Justice Initiative whom will work under the supervision of the Simon-Skjodt Center’s Deputy Director and work with the Ferencz International Justice Initiative Senior Consultant on a day-to-day basis in developing and implementing the Initiative’s objectives. The purpose of this position is to provide leadership in planning and implementing the work of the newly established Benjamin Ferencz International Justice Initiative. This initiative was established by a gift from Benjamin Ferencz, the last surviving prosecutor from the Nuremberg Tribunal, to strengthen the rule of law and the legal architecture for atrocity prevention and response; promote justice and accountability for atrocities committed in countries of concern; and establish a significant new locus for policy and research on the use of international justice mechanisms to deter, prevent, and respond to mass atrocities.

This is a full-time donated position (non-Federal) paid with the Museum’s donated funds. Salary is commensurate with experience.

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On the Job! Attorney Advisor position at U.S. Foreign Claims Settlement Commission

/ Karen Hoffmann / Leave a comment
The United States Foreign Claims Settlement Commission, an independent quasi-judicial agency in the U.S. government that determines the validity and monetary value of claims of U.S. nationals for losses caused by foreign governments, is searching for an attorney advisor. For more information on the position, visit  http://www.justice.gov/legal-careers/job/attorney-advisor-international.

The 2nd Circuit’s Disclosure Order: A Fresh Opportunity to Revive the Imminence Debate?

/ Kinga Tibori-Szabó / Leave a comment

On 21 April 2014, the 2nd Circuit Court of Appeals reversed a lower court decision and ordered the US Department of Justice to disclose portions of a classified memorandum written by the Office of Legal Counsel around June 2010, providing legal justification for the targeted killing of Anwar al-Awlaki, an American citizen.

The court decided that the government waived its right to secrecy by publishing a Justice Department White Paper in 2011 and by making repeated public statements on the legality of targeted killings.

At the time of writing, it is unclear when the memorandum might be made public, or whether the government will seek review of the decision.

Although the plaintiffs had not challenged the legality of targeted killings, and the operational details in the memorandum were not affected by the disclosure order, the decision is a clear rejection of the policy of secrecy surrounding the US government’s targeted killings program.

Allegedly, the classified memorandum concluded that al-Awlaki could be lawfully killed, if he could not be captured, because there were reports that he was involved in the war between the US and al-Qaida and posed a significant threat to US citizens, as well as because Yemeni authorities were unable or unwilling to stop him. The sparse details left many wondering about the particular mechanism followed and the laws applied to reach the decision to kill him. Subsequent public statements, the White Paper (WP) and a Fact Sheet released by the White House in May 2013 tried to fill the gap and provide a domestic and international legal framework for the targeted killings of US citizens (and others) abroad. As regards domestic law, while President Obama acknowledged the paramount importance of due process, the WP trivialized (on pp. 5-6) the Mathews v. Eldridge (1976) test through a cursory weighing of private and public interests against each other. As regards international law, while official references to the law of self-defense and the law of armed conflict have been manifold, their applicability and inter-relationship has not been clarified.

It remains to be seen whether the partial disclosure of the memorandum, if effected, will revive the debate and bolster the scrutiny on the US government’s targeted killings program.

Among many concerns of the program, the concept of imminence in itself, and its schizophrenic association with both due process and the law of self-defense merit thorough review and discussion. Continue reading →

The US Takes on Antiquities Trafficking (And Why You Should Care)

/ Tess Davis / Leave a comment
Image

A Cambodian boy looks across the Mekong Delta to the temple of Phnom Da.

As the World Economic Forum concludes, in an editorial on the Huffington Post, my colleague Mark Vlasic and I have urged the political leaders attending Davos to pay heed to an international criminal industry that is costing the world billions in financial losses, and more irreparably, destroying something with no price tag: our cultural heritage.

Right now looters are reducing countless ancient sites to rubble in their search for buried treasures to sell on the art market. The ensuing trafficking of antiquities and other stolen cultural objects reaches every corner of the globe, and experts fear, may be funding organized crime and terrorist groups. It is also a very attractive way to clean “dirty” assets in the face of otherwise strengthened anti-money laundering and counter-terrorism financing laws, which as former United States prosecutor Rick St. Hilaire notes, “are often limited when it comes to the trade in cultural property.”

For these very practical reasons, the U.S. Homeland Security Investigations (HSI), Department of Justice (DOJ), and Federal Bureau of Investigation (FBI) — as well as foreign and international law enforcement such as Scotland Yard and Interpol — are now prioritizing their efforts to fight antiquities trafficking. U.S. agents and attorneys in particular have had a recent string of successes on this front. Just this month the federal government returned $1.5 million worth of plundered statues to India. And last month, it celebrated another victory when Sotheby’s Auction House agreed to repatriate a $3 million masterpiece to Cambodia, which had been hacked by thieves from a sacred temple during the country’s bloody civil war (both stories were reported by Tom Mashberg in the New York Times here and here).

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A $15 Million Dollar Torture Partnership

/ Brian Citro / Leave a comment

Poland CIA Prison

By Amrit Singh

It has been common knowledge for a while that Poland hosted a secret CIA prison where Abd al Rahim al Nashiri and other prisoners now held in Guantánamo were detained and tortured.  As Warsaw and Washington struggle in vain to hide this truth from the public, fresh revelations from the Washington Post now confirm that the CIA paid Poland $15 milllion to host that prison. In early 2003, two senior CIA officers delivered the cash in large cardboard boxes to Col. Andrzej Derlatka, the deputy chief of Polish intelligence, and two of his associates.

This is significant news for many reasons. First, Europe’s top human rights court justheard oral arguments in two companion cases brought on behalf of al Nashiri and another Guantánamo prisoner, Abu Zubaydah. The cases challenge Poland’s participation in the CIA’s secret detention program. The fact that Poland received $15 million in cash as reward for its participation further confirms the overwhelming evidence the Court has already received in support of the applicants’ claims in these pending cases.

Second, news of the $15 million payment has created a public uproar in Poland. Even skeptics of the Guantánamo prisoners’ claims are now persuaded of Poland’s complicity in torture; and those who until now clung to the idea that this complicity was driven by lofty Polish ideals cynically recognize the power of money. It will be interesting to see how the Polish authorities decide to respond. Since 2008, they have been dragging out a pending (and ineffective) investigation into the CIA prison. The new revelations raise the question of whether domestic pressure, combined with the pending European Court proceedings, will compel the authorities to stand up to Washington and fess up to the truth. Fifteen million dollars seems a paltry amount for a country like Poland to receive for sacrificing its own constitutional ideals and facing potential censure before Europe’s highest human rights court. (Significantly, in December 2012, the court held that Macedonia had violated the European Convention through its participation in the secret detention and rendition of German national Khaled el Masri).

Meanwhile, in Washington, a 6,000 page Senate intelligence committee report on CIA secret detention and interrogation continues to be withheld from the public, despite the fact that the majority of the committee believes the CIA’s secret prisons and torture techniques were “terrible mistakes.”  It is not clear when this report will see the light of day and in what form. What is clear, however, is that the truth will come out one way or another, no matter how hard the Obama administration, the intelligence community’s allies, and Republican lawmakers try to cover it up.

Yesterday the news was about Macedonia’s complicity in CIA torture; today the news is about Poland; tomorrow it will be about Romania and Lithuania, which also hosted secret CIA prisons and also face litigation before the European Court.

Indeed, that the United States co-opted as many as 54 countries into unlawful CIA secret detention and extraordinary rendition operations may ultimately mean that there is only so much the administration can do to cover up the truth.  In the face of snowballing disclosures, the U.S. and its partners in torture would be well advised to own up to their responsibility before the truth emerges by other means to embarrass them.

(Crossposted from Just Security: A Forum on Law, Rights, and U.S. National Security)

Bringing Disability Rights Home: How U.S. Senate Hearings on the Disabilities Convention Point the Way to Ratification

/ Aminta Ossom / 1 Comment

7556591142_98ed835e05Last week, the Senate Foreign Relations Committee held the second hearing this month on U.S. ratification of the Convention on the Right of Persons with Disabilities (CRPD). A year ago, when the Committee first scheduled hearings on the CRPD, a Senate vote that followed fell just a few yeas shy of the 2/3 majority needed to ratify the treaty.  At the time, opponents asserted that ratifying the treaty would give UN experts unfettered authority to change U.S. law, particularly in relation to homeschooling and reproductive health. Similar arguments re-emerged in hearings on November 5th of this year, along with federalism concerns.

Yet, a number of rationales for ratification remain. As Senator Bob Dole, Representative Tammy Duckworth and former U.S. Attorney General Dick Thornburgh indicated two weeks ago, and as Secretary of State Kerry reinforced last week, ratification would allow the United States to act as a global leader on this issue by exporting U.S. constitutional values and by guaranteeing the credibility of the United States in promoting disability rights abroad. Although opponents have argued that ratification is unnecessary since the Americans with Disabilities Act served as a model for the Convention’s provisions, in fact participation in the treaty would allow the United States to more tangibly act as a leading voice on equality. Indeed, international law professor Timothy Meyer testified that ratification would provide the United States an opportunity to nominate a U.S. citizen to serve as one of the Committee members tasked with monitoring treaty compliance. In addition, ratification would allow the United States to share the U.S. perspective on the treaty’s provisions in colloquy with the CRPD Committee. (To be clear, as a matter of law, treaty body members serve in their personal capacities and do not advocate the policies of their home states. Nevertheless, states whose citizens are appointed to treaty-monitoring committees are sometimes looked to as leaders on that particular human rights issue.)

Second, by strengthening the treaty, ratification would increase Americans with disabilities’ opportunities to live, work and travel abroad. While ratification proponents have focused on the travel concerns of veterans with disabilities (a timely concern after over a decade at war), in fact increased global accessibility would benefit all citizens venturing abroad. Opponents have argued that the United States’ own treaty ratification would not affect the practice of other states, the majority of which are already bound to the treaty. However, as the Rome Statue demonstrates, U.S. nonparticipation can weaken a treaty’s impact even among its own states parties by implying that the treaty’s provisions are not universally accepted or that they do not apply to powerful states.  Continue reading →

P5+1: The international agreement where all parties are happy

/ Azin Tadjdini / 6 Comments

Sunday 24 November 2013, it was announced that the P5+1 (the United States, United Kingdom, Germany, France, Russia and China, facilitated by the European Union) had reached an agreement with Iran regarding the latter’s nuclear program. According to each country’s statements the agreement is a success and everyone is a winner. But when have we ever witnessed an agreement of such kind?

Although the agreement is not officially published in full, we get a glimpse of some of its important features from the points that have been released in media. The least interesting thing about the “Nuclear agreement” is the nuclear issue.

For a non-democratic regime that faces strong opposition from within and which has been severely crippled by economic sanctions, the agreement proves to be a life-saving last solution- at least for six months. Under the agreement, a few of the economic sanctions are lifted. In return the regime will stay a live and in power as a de facto protectorate with minimal economic sovereignty still intact. The agreement places the major income source- the oil trade- under the control of the P5+1, by providing that Iran’s crude oil sales cannot increase in a six-month period, resulting in what is estimated to be about $30 billion  in lost revenues to the country. Further restrictions are placed on Iran’s access to its oil sales; on its foreign exchange holdings and on a number of other financial services. A regime that preaches fight against imperialism and “the West”, now finds itself in the peculiar situation where its survival rests precisely on “the West” and a new kind of economic imperialism resulting from the country’s lack of acknowledgement of international law and the rules of the game.

On the bright side, the agreement might have prevented a more serious conflict. But here we can only guess. What we can be certain about, however, is that any agreement where the world’s major powers are involved and where all are smiling has wider geopolitical significance than the nuclear issue.

IntLawGrrls at SEALS

/ Elizabeth Ludwin King / Leave a comment

sealslogo2The increasingly popular Southeastern Association of Law Schools annual conference is underway in beautiful Palm Beach, FL this week. Though not a conference focused on international law, there are a few panels with international topics, as well as several IntLawGrrls presenting. One of the great things about this conference is the focus on diversity in participants; because there are so many women listed in the program, we’re highlighting only those on panels focusing on international law and IntLawGrrls contributors. If we’ve missed anyone, please let one of us know!

Sunday, Aug. 4:

Naomi_Cahn_2008_lowres

Naomi Cahn

“Discussion Group: Children’s Issues” – Naomi Cahn (The George Washington University Law School) (photo credit)

“Arbitration of Internal Trust Disputes: Bold New Frontier or Disaster in the Making?” – Stacie I. Strong (University of Missouri School of Law) (photo credit)

Stacie I. Strong

Stacie I. Strong

“The Intersection of Reproductive Rights and Class” – Naomi Cahn (The George Washington University Law School)

“Experiential Legal Education: Assessing the Present and Imagining the Future” – Johanna Bond (Washington and Lee University School of Law) (photo credit)

Johanna Bond

Johanna Bond

Monday, Aug. 7:

“Experiential Legal Education: Imagining the Future and Integrated Education” – Johanna Bond (Washington and Lee University School of Law) (photo credit)

Tuesday, Aug. 6:

“The Rise and Fall of the Wagner Model: An International and Comparative Perspective” – Charlotte Garden (Seattle University School of Law) (photo credit), Orly Lobel (San Diego University School of Law) (photo credit)

Orly Lobel

Orly Lobel

Charlotte Garden

Charlotte Garden

Wednesday, Aug. 7:

“New Scholars Colloquia: Justice/International” – Rachel VanLandingham (Stetson University College of Law) (photo credit)

Rachel VanLandingham

Rachel VanLandingham

Thursday, Aug. 8:

“New Scholars Colloquia: Constitutional Law: Federal Courts” – Yvonne Dutton (Indiana University, Robert H. McKinney School of Law) (photo credit)

Yvonne Dutton

Yvonne Dutton

Friday, Aug. 9:

“Building New Democracies: Lessons from the Third Wave for the Arab Spring” – Rachel Rebouché (University of Florida Levin College of Law) (photo credit)

Rachel Rebouche

Rachel Rebouche

“New Scholars Colloquia: Insurance/Business Associations” – Elizabeth Ludwin King (Wake Forest University School of Law) (photo credit)Elizabeth Ludwin King

“The Law and Politics of International Prosecutions” – Elizabeth Ludwin King (Wake Forest University School of Law) (photo credit), Milena Sterio (Cleveland State University, Cleveland-Marshall College of Law) (photo credit), Margaret Spicer (Florida State University College of Law)

Margaret Spicer

Margaret Spicer

Milena Sterio

Milena Sterio

‘Yesterday I lost a country’: Kathleen Cavanaugh on Iraq

/ Karen Hoffmann / Leave a comment

Since 2003, Iraq has experienced significant political unrest and the emergence of ethno-religious divisions, writes Kathleen Cavanaugh of the National University of Ireland, Galway, over at OUPblog:

The ‘fear of sectarianism’ has undoubtedly shaped and formed how protest movements in Iraq (and indeed regionally) are constituted. There is a rootedness in the identity politics of the region, a ready-made framework within which these divisions are articulated. …

Politically, Prime Minister Nouri al-Maliki has used the past seven years to consolidate his power. … Yet there are cracks in al-Maliki’s power base and despite significant popular support in the polls, political challenges to his increasingly authoritarian rule and his Baghdad-centered governance (and policies) are growing. Within the legal landscape, despite notions of equality and rights embedded in the 2005 Iraqi Constitution and its accession to the UN Convention Against Torture in 2011, serious human rights violations remain, including the arrest and detention of persons “for prolonged periods without being charged and without access to legal counsel [as well as] prisoner and detainee abuse and torture.” …

[T]en years after the US invasion, what remains is not just a democratic deficit in Iraq, but a society and political system that is fractured and bruised. … Whatever leadership emerges in 2014, shedding historical hangovers and reimagining a political community that counter and undo the politics of sectarianism, in practice and discourse, will be a formidable task.

More at OUPblog.

(Image credit: Cross by Caroline Jaine)