IntLawGrrls

Feminizing the Asylum Process in France

2009-07-10T07:00:00.014-04:00

Last month, Dr. Jane Freedman, Marie Curie Professor of Politics at the Sorbonne, (pictured below right) published a report for UNHCR on the situation of female asylum-seekers and refugees in France. Responding to a gap in the literature and in the statistical data collected by the French government on the treatment of female asylum-seekers, Dr. Freedman's study offers troubling and fascinating findings. While women are more likely to be granted asylum in France than men and also more likely to be granted subsidiary protection, female asylum seekers still face significant discrimination in the asylum process.
The proportion of female asylum seekers in France has grown every year since L'Office Français de Protection des Réfugiés et Apatrides (OFPRA) began collecting data in 2001; increasing from under 30% in that year, females constituted over 36% of asylum seekers by 2007. Dr. Freedman notes that OFPRA's response is to offer subsidiary protection in many gender-based asylum cases -- such as claims of FGM, forced marriage or prostitution -- that could have been eligible for asylum. (Subsidiary p rotection status must be renewed annually, while asylum status is granted for at least three years.) Even more concerning, in response to increasing numbers of asylum claims from Mali based on female genital mutilation, OFPRA restricted its protection policy such that only women who have recently entered France can apply for asylum based on the fear that their daughter will be forced to undergo FGM.
Dr. Freedman identifies as a serious problem the ad hoc approach to gender issues in the asylum process and recommends that these issues instead be addressed comprehensively and systematically. So, for example, while French jurisprudence on gender-based asylum claims is advancing, decision-makers don't apply the caselaw consistently, such that asylum applicants with very similar claims may be awarded different statuses for no apparent reason. This problem might be resolved through the publication of guidelines on gender-based claims to asylum (which exist in Canada, the USA, Australia, South Africa, Sweden and the UK). Even NGOs that assist asylum seekers fail to approach gender issues comprehensively. Though one NGO, Group Asile Femmes, has created a guide for NGOs on issues particular to the reception of female asylum seekers, this effort needs more resources and support to ensure its success.
So what are the gender issues that arise in the asylum process in France? Dr. Freedman provides several important examples. First, female asylum seekers have the right to request a female officer and interpreter in France, but none of the female asylum seekers she interviewed knew about this right. Second, unlike the practice in some other European countries, no childcare is offered for asylum seekers undergoing interviews at the asylum office. While this may seem a utopian expectation, the reality is harsh: one mother's asylum interview was cut short after 10 minutes because her baby was crying; she expected to be scheduled for a second interview but instead received a rejection letter. Even more disturbing, the French government provides no specific medical attention for pregnant women in the Zone d'Attente (the detention area at ports of entry for asylum seekers who apply at the border). Pregnant women detained in these areas are not admitted to the hospital or even allowed access to medical treatment; as a result, several have given birth in the Zone d'Attente at Roissy-Charles de Gaulle airport. Finally, the study discusses the specific issues faced by trafficked women who apply for asylum. These women are often forced to leave their home because of ethnic or religious-based violence and then fall into the hands of traffickers in another part of their country. Traffickers use this history of persecution to draft and file asylum claims on behalf of trafficked women, controlling the process tightly so the trafficking issues don't surface. Women who are then able tell the full story of their trafficking are denied asylum because they have changed their claim. Kudos to Dr. Freedman for shedding light on these significant problems and for taking on this important study in a meticulous and thoughtful fashion.

On July 10

2009-07-10T05:59:00.006-04:00

On this day in ...
… 1875, Mary McLeod Bethune, American educator and civil rights leader, was born to former slaves in Mayesville, South Carolina. She established the Daytona Literary and Industrial School for Training Negro Girls in an era when most African-American children received little or no education. In addition, she founded the National Council of Negro Women, which to this day works to improve the quality of life for women and their communities. Bethune was also president of the National Association of Colored Women when it became the first black-controlled organization represented in Washington, D.C. She became a member of the "Black Cabinet" that advised President Franklin D. Roosevelt on issues facing African Americans in America. She was the only African-American woman at the 1945 San Francisco Conference that launched the United Nations. The statue of her above right was the first statue depicting any woman or African American in any park in Washington, D.C. (image credit)
… 1978, Moktar Ould Daddah, President of Mauritania, was ousted in a bloodless coup d'état. In 1975, Daddah had led Mauritania into a long and costly guerrilla war in Western Sahara (prior IntLawGrrls post) against the Polisario Front, an indigenous movement fighting against the Moroccan-Mauritanian attempt to annex the territory. By the end of 1977, amid economic collapse in Mauritania (in orange at left), Daddah faced growing opposition to the war and to his administration. That set the stage for military takeover on this day, following by Daddah's exile to France a year later.

(Prior July 10 posts are here and here.)

Good question

2009-07-09T06:00:00.004-04:00

There was a third option: In addition to the first two courses of action, we could detain people who had not actually committed any crime, but whom we thought might commit some terrorist act or harm the national security of America. These would be people we considered 'too dangerous' to release or even transfer to the custody of another country and who we could not charge and try in court due to lack of evidence or other related problems. ... This course of action -- preventive detention -- was, in fact, what we were doing under the Bush Administration! Would Obama continue such a policy, just more humanely and in accordance with domestic and international laws?

-- IntLawGrrl Kristine A. Huskey, on p. 275 of her superb new book, Justice at Guantánamo (2009), on which IntLawGrrl Naomi Cahn recently posted here, and about which I'll be posting a full Read On! review very soon.
Kristine's question was aimed at the Executive Order that President Barack Obama issued just days after his inauguration. Here at IntLawGrrls she'd posted about that order at the time. As yesterday's post by guest/alumna Monica Hakimi, and my own New York Times blog post this spring indicate, the question remains very much an open one half a year later.

On July 9

2009-07-09T05:59:00.002-04:00

On this day in ...
… 1816, an assembly of representatives from the provinces met in the Congress of Tucumán and declared the full independence of the United Provinces of South America (present-day Argentina, flag at right) from the Spanish Crown. Prior to this, Argentina had been part of the Spanish Viceroyalty of the Río de la Plata, whose limits also roughly contained the territories of present-day Bolivia, Paraguay, and Uruguay. It was ruled by a viceroy appointed by the Spanish Crown and guarded by the Spanish royal army. Part of the conflict between the settlers and the crown can be traced to the traditional, full prohibition of trading with all countries except Spain. After the Napoleonic invasion of Spain and the consequent imprisonment of Spain's king, a revolutionary wave broke out in the colony, leading to the declaration of independence on this day. Bolivia and Uruguay subsequently declared independence in 1825 and 1828, respectively. Argentine Independence Day is celebrated annually on July 9 to commemorate this event.
… 1932, the Consti tutionalist Revolution of 1932 (sometimes also referred to as the Paulista War), the uprising of part of the population of the Brazilian state of São Paulo against the federal government, began. A response to the Revolution of 1930, which ended the autonomy that São Paulo had enjoyed under the constitution of 1891, the uprising started after 5 protesting students were killed by government troops. A movement then formed; it advocated the overthrow of the federal government and even the secession of São Paulo from the Brazilian federation. Although the São Paulo revolt would be crushed militarily in October, the end of the constitutionalist revolution marked the beginning of the democratization process. The Constitutionalist Revolution is celebrated on this day in the city of São Paulo. (left, a Paulista propaganda poster during the Constitutionalist Revolution; image credit)

(Prior July 9 posts are here and here.)

Breaking News...

2009-07-08T19:40:00.008-04:00

President Obama announced two key nominations yesterday:

Michael H. Posner: Assistant Secretary of State for Democracy, Human Rights, and Labor, Department of State
Stephen J. Rapp: Ambassador at Large for War Crimes Issues, Department of State

The bios of both excellent candidates are below. Congrats! Let's hope these nominations are confirmed with more alacrity than some of the earlier posts (namely Dawn Johnsen and Harold Koh).
Michael Posner (below left) currently serves as the President of Human Rights First (formerly the Lawyers Committee for Human Rights) and has been at the forefront of the international human rights movement for more than 30 years. Posner has traveled to more than 50 countries in all regions of the world on behalf of Human Rights First and other organizations. He has worked to support human rights defenders in countries as diverse as Russia, Zimbabwe, Iran, Cuba, China, Uganda, Haiti, the Philippines, El Salvador and Egypt. He also has been actively involved in promoting the rights of refugees and displaced people, and has taken a leading role in promoting stronger industry standards to ensure fair labor conditions in global manufacturing supply chains. Posner is a frequent public commentator and his opinion essays have appeared in newspapers and magazines around the country. He also has testified dozens of times before the U.S. Congress on a wide range of human rights and refugee topics. Before joining Human Rights First, Posner was a lawyer with Sonnenschein, Nath & Rosenthal in Chicago. Posner lectured at Yale Law School from 1981 to 1984, and again in 2009. He has been a visiting lecturer at Columbia University Law School since 1984. A member of the California and Illinois Bars, as well as the Council on Foreign Relations, he received his J.D. from the University of California, Berkeley Law School (Boalt Hall) and a B.A. from the University of Michigan.
Stephen Rapp (below right) has served as Prosecutor of the Special Court for Sierra Leone since January 2007, leading the prosecutions of former Liberian President Charles Taylor and other persons alleged to bear the greatest responsibility for the atrocities committed during the civil war in Sierra Leone. From 2001 to 2007, Rapp served as Senior Trial Attorney and Chief of Prosecutions at the International Criminal Tribunal for Rwanda, personally heading the trial team that achieved convictions of the principals of RTLM radio and Kangura newspaper—the first in history for leaders of the mass media for the crime of Incitement to Commit Genocide. Previously, he was United States Attorney for the Northern District of Iowa from 1993 to 2001. Prior to his tenure as U.S. Attorney, he had worked as an attorney in private practice and had served as Staff Director of the U.S. Senate Judiciary Subcommittee on Juvenile Delinquency and as an elected member of the Iowa Legislature. He received his JD degree from Drake University and his BA from Harvard College.
Congrats to both!

Guest Blogger: Monica Hakimi

2009-07-08T06:02:00.002-04:00

It's IntLawGrrls' great pleasure to welcome Monica Hakimi (left) as today's guest blogger.
Monica's an Assistant Professor of Law at the University of Michigan Law School. Her teaching and scholarship focus on public international law, international human rights law, the law of armed conflict, and U.S. foreign relations law. A graduate of Yale Law School, she clerked for U.S. District Judge Kimba Wood of the Southern District of New York. As a Attorney-Adviser in the Office of the Legal Adviser at the U.S. Department of State, Monica worked on matters relating to nonproliferation, Iraqi reconstruction, international civil aviation, and international claims and investment disputes. She also served as counsel for the United States before the Iran-U.S. Claims Tribunal.
In her guest post below Monica discusses an issue about which she's recently published an article and been quoted in the New York Times; that is, reports of an Obama Administration plan to implement policy of prolonged detention for persons who, though they have been convicted of no crime, are presumed to present security threats.

A lawful security detention template

2009-07-08T06:01:00.003-04:00

(Thanks to IntLawGrrls for inviting me to guest post on the issue of terrorism-related detention. I am a regular reader and fan of the blog so am delighted to be here!)

President Barack Obama hasn’t yet announced the details of his plans to revamp post-September 11 counterterrorism policy. But preliminary indications are that the final plan will be both retrospective and prospective:

► Retrospective in that it would close and try to resolve many of the problems associated with the facility at Guantánamo Bay.

► Prospective in that it may anticipate detaining administratively persons captured in the future — irrespective of whether they are captured on or off a traditional battlefield. (Obama seemed to be backing away this week from his earlier statement favoring "prolonged detention.")

The retrospective, Guantánamo-related aspects have been addressed at length.

I want to focus here on the prospective aspect, asking:

Does international law permit the United States to detain future terrorism suspects without criminal process?

Those who answer that question in the affirmative usually focus on the armed-conflict nature of our fight. They assert that we are at war with Islamist terrorist groups, and so may detain their members under humanitarian law, the law that governs armed conflicts. That doesn’t quite resolve the question, for a number of reasons:

► First, though we are engaged in an armed conflict in some parts of the world, it’s questionable to assert that we are engaged in a global armed conflict such that humanitarian law governs our counterterrorism measures worldwide. (This is one reason the Bush Administration’s “Global War on Terror” rhetoric was so divisive.) If we are not engaged in a global armed conflict, then humanitarian law cannot justify terrorism-related detentions outside “hot zones” of conflict. Many of the “high-value” detainees captured during the administration of President George W. Bush were not captured in traditional war zones. That’s likely to be the case in the future, as well.

► Second and more important, even if humanitarian law governs all terrorism-related detentions, it does not answer the question posed above. The humanitarian legal rules for this sort of conflict are silent with respect to detention. They assume that noncriminal detention is permissible, but do not establish any procedural or substantive constraints. The dominant modern position is that human rights law fills those gaps.

The question, then, is whether human rights law permits noncriminal, security-based detention.

Many human rights lawyers assert that it does not; human rights law requires terrorism suspects to be criminally prosecuted or released.

I disagree.

As I have detailed in my recent article, International Standards for Detaining Terrorism Suspects: Moving Beyond the Armed Conflict-Criminal Divide, most human rights instruments establish procedural constraints on detention and a substantive requirement of non-arbitrariness. (The European Convention on Human Rights is notably distinct.) International actors broadly accept that security-based administrative detention is sometimes non-arbitrary, or lawful. But they have failed to articulate when that’s the case. This leaves room for interpretation. Interpreting human rights law to permit noncriminal, security-based detention is an aggressive but legally sustainable approach.

Is it a good idea?

In my view, that depends on the alternatives. They are not appealing:

► I have already alluded to one alternative — that states will assert that humanitarian law governs without the benefit of human rights law. This usually means detention without procedural or substantive constraint. That was the Bush Administration’s approach before the U.S. Supreme Court redirected it.

► A second alternative is that states will outsource their dirty work to other states. Or deport terrorism suspects despite the risk of mistreatment. Or kill suspects instead of trying to capture them.

Western liberal democracies — which face a real threat from terrorism but also are committed to human rights — have employed all of those tactics.

They have also been experimenting with security-based administrative detention. In Europe and Canada, these experiments have hooked into criminal or immigration proceedings. Terrorism suspects are detained on the (often disingenuous) supposition that the suspect will soon be criminally charged or deported. Those experiments have sometimes been flawed. But because pursued openly and with legislative and judicial participation, they indicate that states are groping for a new legal framework for detaining terrorism suspects. Refining human rights law to provide that framework would serve two functions:

► It would enable states to detain based on a lawful template that satisfies their security needs; and

► It would reduce the appeal of other, uncontrolled measures that undermine human rights.

It is, at the very least, an option worth considering.

Court in India outlaws sodomy law ...

2009-07-08T06:00:00.002-04:00

... and IntLawGrrls guest/alumna Ruthann Robson has details here.

On July 8

2009-07-08T05:59:00.005-04:00

On this day in ...
… 1992, The Organization for Security and Co-operation in Europe (logo at right) created the office of High Commissioner on National Minorities. According to the OSCE website,

The post of the OSCE High Commissioner on National Minorities was established in 1992 to identify and seek early resolution of ethnic tensions that might endanger peace, stability or friendly relations between OSCE participating States.

High Commissioner Knut Vollebaek, former Norwegian ambassador to the United States, began a 3-year term in 2007.
… 1970, U.S. President Richard Nixon (below left) delivered a sp ecial congressional message enunciating Native American self-determination as official U.S. policy. Previously, it had been the stated policy objective of the federal government eventually to terminate the trusteeship relation between the federal government and tribal nations. (photo credit) In his address, "Message from the President of the United States Transmitting Recommendations for Indian Policy," Nixon contended that such termination policies did not work, and called instead for broad-sweeping self-determination legislation. Five years later, Congress would pass the Indian Self-Determination and Education Assistance Act.

(Prior July 8 posts are here and here.)

Seeking Truth, Justice & Reconciliation in Kenya

2009-07-07T09:44:00.013-04:00

The Government of Kenya (flag right) recently announced the nominees for the proposed Truth, Justice and Reconciliation Commission (TJRC) established last year to study human rights violations committed since Independence, including the inter-ethnic violence that followed the disputed elections in December 2007.

I am delighted to report that our friend and colleague, Ron Slye from Seattle University School of Law (left), is among the foreign nominees to serve on the Commission. Prof Slye served as a legal consultant to the South African Truth and Reconciliation Commission from 1996 to 2000. He is currently writing a book on the South African Truth and Reconciliation Commission and its amnesty process. Ron, who will be the only non-African commissioner, is also an honorary professor at University of Witswatersrand.

By way of background, in the wake of the inter-ethnic violence following the contested elections of December 2007, the African Union’s Panel of Eminent African Personalities (chaired by former U.N. Secretary General Kofi Annan) intervened to negotiate a power sharing relationship between Mwai Kibaki’s Party of National Unity and Raila Odinga’s Orange Democratic Movement. The Panel hosted a series of sessions, called the National Dialogue and Reconciliation, to deliberate on the root causes of the post-election violence. This process resulted in the recommendation that Kenya establish the TJRC to examine human rights abuses committed since independence through February 2008. This long time frame is the result of conclusions that the post-election violence stemmed at least in part from unresolved historical injustices (such as unequal distribution of land) and alleged human rights violations by previous governments. Those found guilty of serious rights violations will not be eligible for amnesty; however, those who committed corruption or other economic crimes for personal gain can apply for amnesty under the legislation. For more details see here and the website of the International Center for Transitional Justice, which has served as a consultant to the government. The Kenyan Parliament passed a final bill to establish the TJRC on October 23, 2008. The Commission will consist of six Kenyans and three foreigners. The latter were identified by the Eminent African Personalities. Nine Kenyans have also been nominated, of which six will be chosen by the government.

A separate Commission of Inquiry on Post-Election Violence, headed by Justice Phillip Waki, recommended the establishment of a special tribunal to prosecute specific individuals responsible for the post-election violence. The commission gave a sealed list of suspected perpetrators to Annan on the understanding that he would forward them to the ICC in the event that Kenya did not move forward with prosecutions.

The proposed tribunal has yet to be established; however, a delegation from Kenya met on July 3, 2009 with ICC Prosecutor Luis Moreno-Ocampo (left), who opened his own investigation into the situation in February 2008. The two sides discussed the legal and other steps needed to bring a special tribunal to fruition. In “agreed minutes” of the meeting, the Kenyan delegation pledged that if these steps fail, Kenya will refer the situation to the Prosecutor in accordance with Article 14 of the Rome Statute. This article states:

1. A State Party may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed requesting the Prosecutor to investigate the situation for the purpose of determining whether one or more specific persons should be charged with the commission of such crimes.

The delegation also agreed to provide to Ocampo by the end of September 2009 the following:

a report on the status of investigations

information on measures to ensure the safety of victims and witnesses

an update on prosecutorial modalities with benchmarks

Stay tuned…

As a TJRC Commission, Ron joins an august group. The Kenyan appointees have been narrowed to nine individuals, who include:

Bethwel Kiplagat (right), a career diplomat and renowned peace negotiator, expert on conflict management, former permanent secretary in the Ministry of Foreign Affairs (1983-1991), and the special envoy to the Somalia peace talks. He was also the Executive Director of the African Peace Forum and has worked on de-mining and demobilization issues in the horn of Africa.

Betty Murungi (left) is co-founder and former executive director of Urgent Action Fund for Women’s Human Rights, which supports innovative and rapid initiatives on women’s leadership in peace building and access to justice in Africa, and an expert on international human rights and transitional justice. Ms. Murungi received the national honour of the Moran of the Order of the Burning Spear in December 2003 for her work in human rights. She is currently an advocate of the High Court of Kenya and has been affiliated with the International Criminal Court, the Truth and Reconciliation Commission in Sierra Leone, the Kenya Human Rights Commission and the East African Centre for Constitutional Development in Uganda. In her words:

My activism is motivated by the resilience and strength of African women who have endured struggles including armed conflicts, exile, disease and impoverishment. Yet through all of this, their spirit remains resilient and renews itself at every turn. They know that women’s rights are human rights.

Dr. Timothy Njoya (right), a retired Presbyterian cleric and outspoken government critic.

Thomas Letangule is a human rights lawyer who has represented victims of government violence, including lawsuits against retired President Moi, his son Jonathan, and aide Joshua Kulei.

Margaret Shava (left), also a lawyer, is the chairperson of Women in Law and Development in Africa and a peace builder with International Alert, an independent organisation working in over 20 countries and territories around the world.

Abubakar Zein Abubakar has served as the spokesperson of the People’s Commission of Kenya (PCK), a consultation committee under the multi-faith Ufungamano Initiative launched to promote unity following the Kenyan elections.

Tom Ojienda is a former Chair of the Law Society of Kenya and the former East Africa Law Society president. Mr. Ojienda has consulted for the Njonjo and the Ndung’u Land Commissions, which aim to establish more equitable land distribution and rights in Kenya and served on a national task force on HIV and Aids.

The other two foreign appointees are Judge Gertrude Chawatama from Zambia and Berhanu Dinka from Ethiopia (left).

Chawatama, a High Court judge, served on a special commission of inquiry into torture claims made by apparent coup plotters in 1997.

Dinka served as U.N. Special Representative for Burundi and is formerly the Secretary-General’s Special Representative and Regional Humanitarian Adviser for the Great Lakes Region. Dinka was also a former United Nations envoy for his native Ethiopia, but was recalled by Lieut. Col. Mengistu Haile Mariam in the mid-1980’s and immediately imprisoned. He was released in 1989 along with other political prisoners in a deal brokered by the international community.

With this group, some measure of truth, justice and reconciliation in Kenya may actually be possible...

'Nuff said

2009-07-07T06:01:00.002-04:00

(Taking context-optional note of thought-provoking quotes)

'We have never before been so keenly aware that in this world of ours we need cooperation as intimate as that among the cells of one body.'

-- Queen Juliana of the Netherlands, in an April 3, 1952, speech before Congress (right), as quoted in ch. 66 of Present at the Creation (1st ed. 1969), the memoir of Dean Acheson, former U.S. Secretary of State (prior post). The Dutch monarch was the 2d woman to address a joint session of Congress. (credit for Life magazine photo) The 1st had been her mother, Queen Wilhelmina, in 1942. Juliana's statement serves to remind that neither global interdependence, nor globalization, is a new phenomenon. Nor, indeed, resistance to same. For Juliana's speech fell short of its intended purpose, to persuade a protectionist Congress to aid Europe's postwar reconstruction by easing U.S. restrictions on international trade. As Acheson put it:

[H]er words did not soften opposition to imports of Dutch cheese.

On July 7

2009-07-07T05:59:00.001-04:00

On this day in ...
... 1907, Susie Marshall Sharp was born in Rocky Mount, North Carolina. The only woman in her Class of 1929 at the law school of the University of North Carolina, Sharp joined her father's law practice upon graduation. Her appointment as a Superior Court judge in 1949 prompted the following exchange:

... Tom Bost of the Greensboro Daily News questioned 'what would happen if Sharp was faced with trying a case of rape? Wouldn't that be too much for a woman?' Judge Sharp wrote back that 'In the first place, there could have been no rape had not a woman been present, and I consider it eminently fitting that one be in on the "pay-off".'

In 1974 Sharp became the 1st woman chosen by the electorate to serve as Chief Justice of her state's Supreme Court. As IntLawGrrls guest/alumna Mary Dudziak recently posted at her Legal History Blog, the life of this pathbreaking jurist is the subject of the new biography depicted above right, Without Precedent: The Life of Susie Marshall Sharp by attorney/author Anna R. Hayes. Sharp retired from the bench in 1979 and died in 1996.
... 1960, via Resolution 142, the U.N. Security Council unanimously recommended admission as a member state to the United Nations for the country then known as Republic of Congo, with the city then known as Léopoldville as its capital. Both the country and the capital would undergo name changes: today the former is the Democratic Republic of Congo (known as Zaire for an interim period); the latter, Kinshasa. (credit for Congo coat of arms circa 1960)

(Prior July 7 posts are here and here.)

Write On! Lawyers & money laundering

2009-07-06T06:01:00.001-04:00

(Write On! is an occasional item about notable calls for papers.) The Section of Professional Responsibility of the Association of American Law Schools is calling for papers so that it may select a speaker for its program of the at AALS' 2010 Annual Meeting -- themed "Transformative Law" -- this January in New Orleans, Louisiana.
The Section's session will examine the 2008 Guidance for Legal Professionals, anti-money laundering principles also known as the "Lawyer Guidance," recently issued by a Paris-based, 20-year-old, 34-member intergovernmental organization, the Financial Action Task Force (FATF) (logo below right). Entitled "The Transformative Effect of International Initiatives on Lawyer Practice and Regulation: A Case Study Focusing on the FATF & Its 2008 Lawyer Guidance," it will be held from 10:30 a.m.-12:15 p.m. on Friday, January 8, 2009.
Already confirmed speakers include: attorneys Kevin L. Shepherd and Colin Tyre, who will address the history, negotiating dynamics, and implementation of the 2008 FATF Lawyer Guidance, as well as Law Professors Ellen S. Podgor (Stetson), James Thuo Gathii (Albany), and Thomas D. Morgan (George Washington). The Section's Chair, Professor Laurel S. Terry of Penn State Dickinson School of Law, will moderate the panel.
Here's an excerpt of Laurel's call for papers:

Even if you have never heard of the FATF or its October 2008 Lawyer Guidance and even if you do not specialize in professional responsibility issues, please don’t rule yourself out of this call for papers -- you are in good company! One reason why we selected this topic for the Annual Meeting program is our belief that few scholars are aware of the FATF’s legal profession gatekeeper initiatives, even though they have the potential to implicate the lawyer-client relationship in significant practice areas and are likely to change, in some significant ways, the manner in which these U.S.
lawyers practice.
The 2008 FATF Lawyer Guidance applies to U.S transactional lawyers whenever
they are involved in one of five areas of activity:
► helping their clients buy or sell real estate,
► helping them create, operate, or manage legal persons, such as corporations,
► helping them buy or sell business entities, or
► helping manage client money, securities or other assets or bank, savings or securities accounts.
The 2008 FATF Lawyer Guidance requires these lawyers to comply with certain recordkeeping requirements and conduct client due diligence (sometimes referred
to as “know your client” rules). But it does not include any suspicious transaction reporting obligations, which was viewed as a victory for the legal profession. A number of countries already have implemented the FATF principles by amending their laws or ethics rules; the United States is considering how to implement them.

Abstracts of 3 to 5 double-spaced pages, describing papers unpublished as of the session date, should be submitted by the deadline of September 1, 2009, to Section Chair Laurel Terry at LTerry@psu.edu. Laurel also welcomes e-mails seeking more information about the call or the program.

On July 6

2009-07-06T05:59:00.002-04:00

On this day in ...
... 2005, the House of Representatives of Malta unanimously approved a Motion for the Ratification of the European Constitutional Treaty, thus making the Mediterranean island nation the 12th state party to that European Union pact. But as we've posted, the treaty failed to take effect on account of "No" votes in referenda held earlier the same year in France and the Netherlands. As a consequence the EU then shifted, seeking member states' OK of the Lisbon Treaty, an agreement that includes much of its predecessor but eschews any claim to being a Constitution. The future of this treaty too is in doubt, on 2 fronts: 1st, the electorate in Ireland, having received certain new assurances from the EU since its 2008 "No to Lisbon" vote, will stage a do-over referendum in October; and 2d, a national court has just ruled that Germany's ratification is not yet valid. (credit for map at left, prepared before German court ruling, which shows Ireland, in red, as the lone Lisbon Treaty holdout among EU member states, otherwise in green)
... 1934 (75 years ago today), amid an uprising (right) that had begun the month before, Chilean troops killed hundreds of campesinos -- the exact number is disputed -- around Fundo Ranquil, an area at the Biobío River near Chile's midpoint. (photo credit) A detailed account, in Spanish, of this unsuccessful movement by the Mapuche people to establish a "República Indígena" is available here.

(Prior July 6 posts are here and here.)

'Nuff said

2009-07-05T06:00:00.006-04:00

(Taking context-optional note of thought-provoking quotes)

'We don't have enough water for a brewery, and IBM ain't exactly knocking at the door. What else were we gonna do?'

-- A small-town mayor on why his community wanted a prison built there, quoted in an op-ed by Eric J. Williams, Professor of Criminal Justice at California's Sonoma State University. The quote captures in a nutshell why Williams makes a prediction that contradicts claims of the Republican leadership. In Williams' view, if rural communities in the United States were asked to house persons now detained at Guantánamo, there'd be far more YIMBYs (Yes, In My Backyard) than NIMBYs. It's a question that my colleague at the University of California, Davis, School of Law, Professor Lisa R. Pruitt, has explored at her Legal Ruralism blog, a daily feature in our "connections" list at right. Her post's enticingly entitled "Are cowboys wimpy? Perhaps only when it comes to alleged terrorists."

(credit for photo of federal "Supermax" prison in Florence, Colorado)

On July 5

2009-07-05T05:59:00.003-04:00

On this day in ...
... 1934 (75 years ago today), on what was known as San Francisco's Bloody Thursday, rioting involving thousands of persons along the waterfront resulted in 3 deaths and a score of inj uries. Police clashed with striking union members, and bystanders were caught in the melee as strikers hurled tear gas canisters thrown at them back at police. (photo credit) The governor called out the National Guard on this day, nearly 2 months after labor protests had begun in the city. The day ended with International Longshoremen's Association leader Harry Bridges -- later the victor in immigration and false statements cases before the U.S. Supreme Court -- going to City Hall to protest police actions.
... 1944 (65 years ago today), Leni Björklund (right) was born in Sweden. Following her childhood in the community of Örebro, she earned a bachelor's degree at Uppsala University, and then entered politics. A member of the Social Democratic Party, from 2002 to 2006 Björklund served as Sweden's Minister for Defence -- the 1st woman, and the 1st person who'd not served in the military -- to hold that post.

(Prior July 5 posts are here and here.)

International law & Liberty

2009-07-04T06:01:00.014-04:00

By now many will have read that on this Independence Day Liberty's crown reopens to tourists willing to walk the 168 steps to the top of the 125-year-old Statue about which we've posted. It's the 1st day since September 11, 2001, that visitors will be permitted in this part of the statue.
But few may know that there's another off-limits part of the statue. It's the torch -- it too was closed on account of a terrorist act, and long before 9/11.
On the night of July 30, 1916, land in and around New York's harbor was rocked by "massive explosions, in quick succession." The devastation is evident in photos available here. What came to be known as the Black Tom blasts could be felt in Philadelphia 90 miles away, and shattered nearly all windows in Manhattan and New Jersey. The island on which Liberty stands was shaken, and her torch closed. (credit for Works Progress Administration poster)
There're 2 international law twists to this story:
► The bombing, which occurred as war raged in Europe, was attributed to agents of Imperial Germany. But by the time the American-German Mixed Claims Commission formed after World War I found Germany liable for $21 million plus interest, Hitler-led Germany refused to pay. (p. 500)
► Following the end of World War II, one German on whom suspicion for the Black Tom disaster had settled, Franz von Papen, was charged based on other conduct with crimes against peace and tried before the International Military Trial at Nuremberg, which acquitted him in the Trial of the Major War Criminals.
And the closed-off part of the statue? Later replaced and now on museum display, Liberty's original torch never reopened.

1/2 a year & no vote

2009-07-04T06:00:00.001-04:00

Our timer has reached the 180th day since our colleague Dawn Johnsen was nominated to become Assistant Attorney General in charge of the Office of Legal Counsel at the Department of Justice. A new Democratic Senator, presumptively a "Yes" vote, is a good thing; a couple who are ill and a couple more who say "No," not so good. We keep counting.

On July 4

2009-07-04T05:59:00.001-04:00

On this day in ...
... 1960, the 50th and final star was placed on the current U.S. flag in commemoration of Hawaii having become the 50th state on August 21, 1959, nearly 8 months after its closest predecessor, Alaska.
... 1971, a lowland gorilla named Koko was born at the zoo in San Francisco, California. As detailed here, since Koko was an infant Dr. Penny Patterson (right, with Koko) and colleagues have studied the language abilities of this member of an endangered species. They say that Koko has learned more than 1,000 American Sign Language signs.

(Prior July 4 posts are here and here.)

On Art! Unveiling Gender and Ethnic Identity

2009-07-03T07:00:00.011-04:00

(On Art! is an occasional item on artifacts of transnational culture)

The eve of our nation's birthday seems an appropriate time to reflect on the numerous dimensions of American identity, particularly those that are not often brought to the fore. “The Seen and the Hidden: [Dis]Covering the Veil,” an exhibit at the Austrian Cultural Forum in Manhattan through August 29, offers an excellent opportunity for readers to do just that. While I must admit that I've not yet seen the show, I am a great fan of one of the artists, Negar Ahkami (below right), who was profiled in the N.Y. Times last month. Negar is not only an artist, but also an IntLawGrrl; I met her over ten years ago when she was an associate at Simpson, Thacher, and Bartlett and, luckily for me, my mentor as a summer associate. She soon moved to the legal department of the MOMA, at the same time beginning her "Lipstick Revolution" series of portraits of veiled Iranian women created using only lipstick and paper.
Negar's work seeks not only to express the complexities of Iranian-American identity but also to push back against the male chauvinism inherent in the depictions of women by leading modern artists from Picasso to Gaugin. One of her earliest paintings portrayed several men eating at a steakhouse, smoking cigars, with footballs in place of their heads. Negar's more recent work has made striking use of phallic symbols to express her discomfort with misogyny and sexual violence. Her current art aims to convey a more nuanced image of Iranian women than that presented in the mainstream media, and at the same time to critique the sexism prevalent in popular portrayals of women both Iran and the United States.
As she narrates in more detail in this interactive version of her painting "The Fall" (left), Negar's art grapples with the "way that the culture she love[s is] 'degraded, demonized and reduced to a cartoon' both here and in Iran." Her work incorporates the exquisite, refined detail and elaborate narrative of Persian tradition with the open emotional angst of Western art, and in doing so, packs a powerful punch. It will certainly leave the viewer with plenty of food for thought about gender and ethnic identity in America.

Go On! WILIG Networking Breakfast

2009-07-03T06:00:00.000-04:00

(Go On! is an occasional item on events of interest) We are delighted to announce that WILIG, the Women in Law Interest Group of the American Society of International Law, will sponsor a Women in International Law Networking Breakfast on Thursday, July 9, from 8:30-10 a.m. at ASIL's Tillar House headquarters, 2223 Massachusetts Avenue, N.W., Washington, D.C.

The program features accomplished professionals in law practice and academia, who will discuss their career paths and offer insights to women interested in pursuing careers in international law. The panel presentation will be followed by small-group discussions to foster networking opportunities. The panelists include our own IntLawGrrl Kristine A. Huskey, National Security Clinic, University of Texas School of Law, as well as: Laura Black, Office of the Assistant General Counsel for International Affairs at the Treasury Department; Andrea J. Menaker, White & Case; and Andrea J. Prasow, Office of the Chief Defense Counsel, Office of Military Commissions.

We hope to see many IntLawGrrls at this event! You can find more information about the program and registration here.

And heartfelt congratulations to Kristine and to IntLawGrrl Janie Chua ng for organizing this wonderful event!

On July 3

2009-07-03T05:59:00.001-04:00

On this day in ...
... 1927, during a local plebiscite, Uruguay became the 1st South American country to permit women to vote. (photo credit) As described and depicted in this essay, suffrage was extended so that Uruguayan women could vote in a referendum on how to organize government in the area known as Cerro Chato. Women would not be permitted to vote in national elections in Uruguay until 1938.
... 1940, Nayla Moawad (below right) was born into a "prominent" family in Bsharri, Lebanon. (photo credit) Following education in Lebanon and at Cambridge University in England, she worked as a journalist, then married René Moawad, who would serve as President of Lebanon for 17 days before being assassinated on November 22, 1989. Thereafter Nayla Moawad herself ran for office. She's served as a member of Lebanon's National Assembly since 1991, and as Minister for Social Affairs since 2005. As stated in this sidebar to her 2008 Spiegel Online interview, "She is known for her outspoken criticism of Hezbollah and Syrian hegemony over Lebanon."

(Prior July 3 posts are here and here.)

Guest Blogger: Carmen Márquez Carrasco

2009-07-02T06:06:00.003-04:00

It's IntLawGrrls' great pleasure to welcome Dr. Carmen Márquez Carrasco (left) as today's guest blogger.
The Professor holding the Chair in International Law and International Relations at Spain's University of Seville, Carmen is the Chairperson of the Executive Committee of the European Master's Degree in Human Rights and Democratisation at the European Inter-University Centre for Human Rights in Venice, Italy. Having directed the program in 2005-2006, in 2007 she became the 1st woman elected as Chairperson, the position that had been held by Dr. Manfred Nowak, currently the U.N. Special Rapporteur on torture. Centre projects that Carmen has spearheaded include a photo competition, "visualising democracy," and an international conference on human rights diplomacy.
Carmen earned her Ph.D. in law from the University of Seville, and she also holds diplomas from the Research Centre of the Hague Academy of International Law and the Erik Castrén Institute on Human Rights at the University of Helsinki, Finland. She has been a Visiting Professor at the University of Coimbra in Portugal and Pontificia Universidad Católica del Perú.
She received the Award Rafel Martínez Emperador, Consejo General del Poder Judicial (Madrid), for her contribution to a book entitled La criminalización de la barbarie (2000). Her publications concentrate on human rights, peace and security, and the codification and development of international law and international criminal law. In her guest post below, Carmen analyzes proposed legislation that would cut back on Spain's universal jurisdiction law.
For reasons she explains in a 2d post below, Carmen dedicates her work to the Spanish essayist and philosopher María Zambrano Alarcón. Zambrano joins other IntLawGrrls transnational foremothers in our list just below the "visiting from ..." map at right.
Heartfelt welcome!

In Spain, jurisdiction won't be truly universal

2009-07-02T06:04:00.006-04:00

(Thanks to IntLawGrrls for giving me this opportunity to contribute this guest post and my transnational foremother dedication.)

The bill that would restrict universal jurisdiction in Spain, about which IntLawGrrls have posted here and here, constitutes an important setback in the Spanish contribution to the fight against impunity.
Why the setback?

A number of factors that have paved the way for the reform of Spanish legislation:

► The concerns of some about the ongoing dozen cases being investigated by Spain's Audiencia Nacional, cases through which it plays a role as, effectively, a universal court;

► Political pressure from states like China and Israel; and

► The path taken by the European Union to come to terms with the African Union, as reflected in the April 2009 AU-EU Expert Report on the Principle of Universal Jurisdiction -- about these regional organizations' respective understandings on the principle of universal jurisdiction.

This bill (text in English here) would move away from the “pure” universal jurisdiction allowed in Spain's current law, codified at Articles 23 and 24 of Ley Orgánica 6/1985, de 1 de julio, del Poder Judicial. As IntLawGrrl guest/alumna Pamela Merchant has noted, the proposed legislation has many flaws. By way of example, it would introduce:

► Extremely demanding conditions -- even a reverse interpretation of the principle of complementarity that is a cornerstone of the Statute of the International Criminal Court.

► Limitations on the exercise of universal jurisdiction that resemble a doctrine repudiated by Spain's highest court. The limitations resemble the doctrine that Spain's Tribunal Supremo advanced in 2003, in an appeal against the Audiencia Nacional decision in the Guatemala Genocide Case mentioned in Merchant's post. By an 8-7 vote Spain's supreme court maintained in 2003 that only cases with a “legitimating connection,” such as the nationality of the victim or the presence of the offender, could proceed; moreover, the connection was said to have to be present in the principal charges, not just in related or ancillary charges against the defendant. But a higher court in Spain, the Tribunal Constitucional, annulled that ruling two years later. The constitutional court (left) held that the physical presence of the suspect is not required to initiate an investigation based on universal jurisdiction. It also held that territorial courts and an international court have priority over Spanish courts exercising universal jurisdiction; however, universal jurisdiction could be exercised by Spanish courts if a party to the case submitted demonstrated that courts in the territorial state were unwilling or unable to investigate and prosecute effectively the crimes alleged in the complaint. Thus it established that the law did not require the showing of a link between the prosecution of a universal jurisdiction crime and Spain's national interest; indeed, the Tribunal Constitucional considered requirement of such a link to be "contrary to the spirit" of the principle of universal jurisdiction. (photo credit)

It is one thing is to limit abuse and subject the exercise of universal jurisdiction to reasonable limits, such as those envisaged in the Princeton Principles on Universal Jurisdiction (2001) or in some of the provisions of the Krakow Resolution on "universal criminal jurisdiction with regard to the crime of genocide, crimes against humanity and war crimes," adopted in 2005 by the Institut de Droit International. But it is very different thing to adopt limitations so far-reaching that the defeat the purpose of the principle of universal jurisdiction.

As Lloyd Axworthy, formerly Canada's Foreign Minister and now President and Vice Chancellor of the University of Winnipeg, put it in this 2006 essay:

The application of universal jurisdiction does not entail a diminution of state sovereignty but rather the enforcement of a collective and fundamental system of criminal justice.

Dedicated to María Zambrano

2009-07-02T06:02:00.009-04:00

I wish to dedicate my guest contribution to IntLawGrrls, posted above, to María Zambrano Alarcón (left), a Spanish essayist and phenomenological philosopher.

Despite the rarity of Spanish women essayists and philosophers, she chose as her vehicle the philosophical essay. She left more than one hundred articles and twenty-eight books, particularly impressive considering the gender and culture barriers that she faced in pre-Civil War Spain and postwar exile in Cuba, Mexico, Puerto Rico, Italy, and France. Exile and her affiliation with Spain's anti-Franco Republicans, combined with her essentially esoteric work, long kept Zambrano relatively unknown. When she finally returned to Spain in 1984, she received great honors and recognitions. However, they seemed to be more related to her Republican affiliation than with the originality and quality of her work.

Born on April 22, 1904, in Vélez-Málaga, Zambrano had a long academic career, and was affiliated with major universities in South and Central America and Europe, before her death in Madrid on February 6, 1991. Her work is characterised by the theoretical exploration of poetry's relation with epistemological epiphanies. She rejected philosophical rationalism and scientific reason and upheld the notion of “being-in-the world,” “dwelling,” letting things speak. She called that “the poetic reason.”