Book Review: North American Genocides: Indigenous Nations, Settler Colonialism, and International Law

By Sue Silverman

Laurelyn Whitt & Alan W. Clarke, North American Genocides: Indigenous Nations, Settler Colonialism, and International Law (Cambridge Univ. Press 2019).

Book Cover is pink abstract background with text: North American Genocides: Indigenous Nations, Settler Colonialism, and International Law, Laurelyn Whitt & Alan W. Clarke, CambridgeIn the Introduction to An Indigenous People’s History of the United States, Dunbar-Ortiz quotes Willie Johns of the Brighton Seminole Reservation in Florida: “We are here to educate, not forgive.  We are here to enlighten, not accuse.” [1] Laurelyn Whitt and Alan Clarke set out to educate and enlighten readers on the exterminatory efforts levied against Indigenous peoples in North America by settler-colonists by examining two cases that occurred on Indigenous lands in Canada and the United States: the Beothuk Nation on what is now Newfoundland and the Powhatan Tsenacommacah in the region known as the Virginia Colony.  By applying the elements of genocide laid out in a conservative reading of the UN Genocide Convention to the historical evidence found in recorded accounts of what occurred between settler-colonists and Indigenous peoples, North American Genocides: Indigenous Nations, Settler Colonialism, and International Law demonstrates how a hypothetical prosecutor may secure a finding of genocide against specific colonial actors in the two cases.

Whitt and Clarke begin by summarizing the various grounds on which genocides of North American Indigenous populations have been denied or dismissed and dismantle arguments that what happened to Indigenous peoples at the hands of settler-colonists did not constitute genocide.  In so doing, they clarify misconceptions about what is required to establish genocide under the Genocide Convention.  For example, genocide does not require actual destruction of the group nor even a systemic or widespread attack on the group. [2] In Chapter 4, Whitt and Clarke explain in detail the elements of genocide and note that acts committed with the requisite intent (to destroy, in whole or in part, a national, ethnical, racial or religious group[3]) need not be homicidal – forced removal and transfer of children from the victim group may constitute genocide[4] – nor is it necessary to establish an organized plan, policy or governmental sponsorship.[5]  Large numbers are not a requirement either. If the group is small, even a small number killed may constitute a substantial part of that group for purposes of establishing an intent to destroy a protected group.[6]

After the authors give a “legal primer” on the Genocide Convention, they closely examine the cases of the Beothuk Nation and the Powhattan Tsenacommacah, focusing on specific actors and witness accounts of violence committed against Indigenous peoples, including statements and circumstantial evidence indicating genocidal intent. Through a methodical application of the Genocide Convention’s elements, the authors advance compelling legal arguments that what happened to the Beothuk and the Powhattan Tsenacommacah constituted genocide under the Convention. One notable actor is Nathaniel Bacon Jr., the so-called American patriot whose rebellion led the way to the American revolution. Bacon’s ruthless attack on the Occanneechee Nation provides the requisite actus reus of genocide, and his virulent anti-Indian rhetoric provides evidence of the requisite mens rea.[7]

North American Genocides dispels any myth[8] that settler-colonialism was a predominantly benign exercise with some unfortunate outcomes or that it was a discrete event that occurred in the distant past. Settler-colonists came to stay and their principle object was the land itself; as stated by the Select Committee formed by the British House of Commons to examine relations with Indigenous peoples, “the new occupants of America…regard the natives as an irreclaimable race…whom it was desirable ultimately to remove.”[9] In other words, it was the objective of settler-colonists to eliminate Indigenous populations. The Select Committee noted that in the span of only 30-40 years, the settlers in the British colonies studied had reduced the population from 8,000-10,000 to about 200-300.[10]  Moreover, Whitt and Clarke point out that “settler colonization is a structure, not an event…it changes shape, endures policy realignments, and transformations of legal systems without relinquishing its hold on the land and on what remains of the land’s inhabitants…”[11] As such, Indigenous peoples refuse to accept that we’re in a postcolonial society – settler colonialism is a structure that endures.[12]

The final chapters of North American Genocides argue for a more expansive interpretation of the Genocide Convention that includes cultural destruction.[13]  That the Genocide Convention listed the forcible removal of children as an act of genocide indicates that the drafters intended to preserve cultural destruction as a form of genocide, when such destruction takes the form of forcible removal of children. This, the authors contend, is the correct interpretation of the Genocide Convention.  However, the broader interpretation that the authors argue should be the law is that the intent to destroy a group culturally could be read more expansively to include other genocidal acts that constitute cultural destruction.[14]

The authors note that “to develop an adequate approach to genocide prevention – we must first develop a comprehensive and detailed understanding of how genocide arises and unfolds in various contexts including settler-colonialism.”[15] North American Genocides: Indigenous Nations, Settler Colonialism and International Law provides a robust legal examination of past genocides and illuminates the deficiencies in the Genocide Convention in describing (and thus potentially preventing) genocide.  For anyone who is interested in Indigenous history, settler-colonialism, or genocide studies, this book is a valuable and insightful resource.

[1] Roxanne Dunbar-Ortiz, Introduction to An Indigenous Peoples’ History of the United States 1 (Beacon Press 2014).

[2] Laurelyn Whitt & Alan W. Clarke, North American Genocides: Indigenous Nations, Settler Colonialism, and International Law 21 (Cambridge Univ. Press 2019).

[3] Convention on the Prevention and Punishment of the Crime of Genocide art. 2, Dec.9, 1948, 78 U.N.T.S. 277.

[4] Whitt & Clarke, supra at 74.

[5] Id. at 88.

[6] Id. at 80-81.

[7] Id. at 153-54.

[8] Id. at 45.

[9] Id.

[10] Id.

[11] Id. at 48.

[12] Id. at 51.

[13] Id. at 175.

[14] Id. at 175.

[15] Id. at 228.

Researching International Women’s Rights in the Time of COVID-19

By Alyssa Thurston

Various international and regional instruments address sex-based discrimination or guarantee women rights related to personal liberty and security, equality, family life, health, religion, property, education, employment, political participation, and more. Already fragile or not prioritized in a number of places, many of these rights have become even more jeopardized due to the substantial worldwide social, political, and economic disruption caused by the COVID-19 pandemic. Recent media reports have highlighted, for example, the “shadow pandemic” of higher rates of domestic violence resulting from required sheltering-in-place; impacts on access to sexual and reproductive health services; and increased financial inequality between men and women due to unprecedented rates of job loss or reductions, particularly in industries that tend to have higher percentages of female workers. On April 9, the United Nations published a policy brief, “The Impact of COVID-19 on Women”, underscoring these and other concerns in discussing how “the pandemic is deepening existing inequalities, exposing vulnerabilities in social, political and economic systems which are in term amplifying the impacts of the pandemic”. Consequently, “even the limited gains made in the past decades” on gender equality “are at risk of being rolled back”.

Against this backdrop, this blog post highlights selected resources for researching international women’s rights. It will emphasize online resources given the current imposition of social distancing guidelines and shelter-in-place orders in many jurisdictions.

photo of globe on top of books

Photo by Polina Zimmerman on Pexels.com

For those just getting started, an introductory source, such as the UN Human Rights Office of the High Commissioner publication Women’s Rights are Human Rights, provides a helpful overview of the underlying legal basics and central concepts. Another resource is the subscription-based Max Planck Encyclopedia of International Law, which offers a number of relevant articles found by browsing the subject menu under “Human rights à Rights holders à Women, rights”.

Speciality legal research guides on this topic include International Women’s Human Rights and Humanitarian Law by the University of Toronto Bora Laskin Law Library and Women’s Human Rights by the International Justice Resource Center. There are also guides that focus on narrower issues within international women’s rights, such as the Pace Law School Library’s guide on Domestic Violence Law: International Law. Conversely, research guides covering broader areas that cover international women’s rights, such as international human rights law, international humanitarian law, and international criminal law, can also provide a good (albeit more general) starting point. GlobaLex and the American Society of International Law are just two examples of quality sources for the latter type of guide. Do not overlook non-legal research guides, such as the Georgia Tech Library’s guide on Women and International Affairs or the University at Buffalo Libraries International Human Rights of Women guide.

As an alternative to a research guide and depending on your area of interest, refer to the websites of relevant IGOs or NGOs. These sites are often particularly valuable as current awareness resources, and many also publish statistics and research reports or provide links to relevant primary law such as cases and treaties. For example: UN Women, the United Nations organization “dedicated to gender equality and the empowerment of women”, maintains a digital library of UN publications, multimedia, and documents, and its Guiding Documents page summarizes and links to international agreements such as the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and its optional protocol. The Office of the United Nations High Commissioner for Human Rights has a page devoted to CEDAW, as well as several other resources on women’s rights listed on its Issues page. Other potential agencies and organizations to track include the United Nations Population Fund, the World Economic Forum, Amnesty International, Human Rights Watch, Equality Now, and the International Center for Research on Women. Or, you could begin with an organization working within specific regions or on particular women’s rights issues. For instance, if you are interested in researching women’s rights in Asia, consult the websites of the Asia Pacific Forum and International Women’s Rights Action Watch Asia Pacific. The Center for Reproductive Rights is a global organization focused on women’s reproductive health and rights, and Stop Violence Against Women works to end global domestic violence, sexual harassment and assault, and human trafficking.

There are also free online databases that partially or primarily contain primary and secondary sources relevant to international women’s rights.  RefWorld, a website of the UN High Commissioner for Refugees, maintains a database of country and policy reports, case law, and other documents published by governments and IGOs on issues such as human trafficking and gender-based violence. The Cornell Center for Women, Justice, Economy & Technology hosts the Women & Justice Collection on Cornell Law School’s Legal Information Institute website. This collection “provides access to international, regional, and domestic caselaw and legislation from around the world related to promoting gender justice and ending gender-based violence.”

As the UN writes:

“COVID-19 is not only a challenge for global health systems, but also a test of our human spirit. Recovery must lead to a more equal world that is more resilient to future crises…. It is crucial that all national responses place women and girls – their inclusion, representation, rights, social and economic outcomes, equality and protection – at their centre if they are to have the necessary impacts. This is not just about rectifying long-standing inequalities but also about building a more just and resilient world.”

 

IALL 2019 Recap: Mary Crock, Refugee Law in Australia: The Protection of Migrant Children

By Rachel Green

Professor Mary Crock, Professor of Public Law at the University of Sydney Law School, taught “Refugee Law in Australia: The Protection of Migrant Children” at the IALL Annual Course on October 29, 2019.  Prof. Crock has co-authored two books relevant to this topic: Protecting Migrant Children: In Search of Best Practice (2018) and The Legal Protection of Refugees with Disabilities: Forgotten and Invisible? (2017).

The overarching takeaway was just how vulnerable migrant children are throughout the world.  According to 2015 UNICEF statistics, children accounted for 31% of the world’s population but 51% of the global refugee population.  The number of child refugees doubled from 2005 to 2015, particularly between 2011 to 2015 (likely due to the Syrian crisis).CROCK2019IALLPresentation - slide 1

Significantly, refugees do not typically begin by attempting international border crossing.  Instead, refugees fleeing their communities usually attempt internal migration first.  These “Internally Displaced Persons” (IDPs) numbered 41 million in 2015 (up from 28 million in 2010); 17 million (41%) were children.  It is only when IDPs are unable to find safety anywhere within their home countries that they risk seeking refuge across international lines.

Unaccompanied asylum seeking children are especially vulnerable to exploitation and abuse.  According to the UN Office on Drugs and Crime’s 2016 TIP Report, children represented 25-30% of trafficking victims (second to women).  The research underlying this report showed that conflict can drive trafficking, because traffickers “leverage [refugees’] desperation to deceive them into exploitation.”  Research also suggests that children are at greatest risk when moving along routes where they have to pay different smugglers for different legs of the journey.

Prof. Crock outlined international law agreements that are especially relevant to migrant children.  The International Covenant on Economic, Social, and Cultural Rights, Article 12, recognizes “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.”  The Convention on the Rights of the Child (CRC) offers one of the strongest protections for children and is the most subscribed of all human rights conventions, although Prof. Crock noted that the U.S. has not ratified it, and many countries are not complying with it.  Traditional human rights treaties, as well as the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (1995), also play a significant role.

The CRC is critically important for understanding the rights of migrant children.  Of particular note, the CRC does not contain derogation clauses for emergencies, thus ensuring that migrant children retain their rights under all circumstances.  Some of the most pertinent articles are: Article 3, establishing that “best interests of the child shall be a primary consideration”; Article 19, requiring that State Parties protect children “from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse . . .”; Article 22, requiring “appropriate protection and humanitarian assistance” to refugee (or refugee status-seeking) children; and Article 38, requiring State Parties to “take all feasible measures to ensure protection and care of children who are affected by an armed conflict.”

Unfortunately, while mechanisms exist to protect children in theory, in reality, there are major gaps.  In Australia, an interest in deterrence has often prevailed over the need to protect children.  Examples include the use of prolonged detention onshore, the establishment of detention centers offshore, forced separation of children from their families, and the denial of family reunification after separation.

Prof. Crock emphasized the important role lawyers play, as they will always find a way to fight, even looking outside of immigration law.  For example, lawyers have made tort law claims on behalf of immigrants in detention camps.

Overall, this session was extremely informative, and Prof. Crock was a compelling speaker.  The subject of migrant children is particularly meaningful to me, as I do pro bono work on behalf of minors seeking legal status in the United States.  I wanted to be able to share this session with other FCIL members because I believe that it is a subject that resonates universally.  While the stories and information were difficult to hear at times, I was inspired by Prof. Crock’s positive attitude and hopefulness for change.  The lecture slides are available on the IALL website.

 

Book Review: Comparative Human Rights Law

By Christine Bowersox

Fredman, Sandra. Comparative Human Rights Law. (Oxford University Press, 2018) 476 p. Softcover $65.00

Book cover: Comparative Human Rights Law, Sandra FredmanComparative human rights law is a deeply complex subject, with no direct course of action to find a solution to these global humanitarian issues. In Comparative Human Rights Law, author Sandra Fredman delves into these complexities and offers readers a deep dive into the multi-layered approaches judges and countries take to remedy injustices and uphold human rights. Fredman states that, after having been a student of the topic herself, her exposure to this area of law in this class “fundamentally shaped [her] thinking on the subject ever since.” (Acknowledgments page, Fredman S.) Fredman brings her experience and knowledge forth to give a concise background on the last 70 years of the study and practice of this area of law, particularly focusing on the countries of the United States, Canada, South Africa, and India for primary comparative sources.

Fredman divides her treatise into two major parts of study. The first part of the treatise focuses primarily on cross-cutting themes, with a focus on judicial reactions and responses to the challenges of issues of human rights. The second part of the treatise takes the themes of cross-cutting to make assessments of human rights across specific substantive topics. Readers explore crucial roles of textual mandates as well as interpretive theories, finishing with a conclusion threading together the themes discussed and drawing parallels to the decisions of judges across multiple countries attempting to answer different human rights narratives.

Human rights law complexities are explored further in the first five chapters. Chapter 1 begins exploring the “broadly similar common core of human rights” globally. (p. 4) Judicial approaches using comparative laws are discussed, using precedent in their own country of origin as well as abroad. Chapter 2 seeks to answer the question of what is considered a human right? The Universal Declaration of Human Rights attempted to answer this question, yet there is no consensus this document is a primary source for rights. Principles of “rationality and autonomy are among the most commonly cited principles,” (p. 30) but still others argue that dignity is a key right. Chapter 3 explores the idea that socio-economic rights are human rights, separate and “apart from civil and political rights” of the individual and layer the relationship of the State with liberty. (p. 60) Rights and duties are also discussed in the context of the Fourteenth Amendment of the Constitution of the United States. Chapter 4 takes a closer look into the judicial roles in human rights and the paradoxical take of human rights as being something solved by humans, aka collective society, or by elected representatives “interpret[ing] and apply[ing] human rights on the basis of majority voting.” (p. 79) Chapter 5 questions the judgments made on human rights laws and the interpretations and values which are applied to the laws in question. Interpretations are varied amongst judges, as are values applied to the law. In the United States, original intent versus relativity, explored in this final section of part one.

The second part of this treatise explores specific human rights topics by chapter. Chapter 6 focuses on capital punishment, and whether or not this is a violation of human rights. Is this considered cruel and unusual punishment, or a due process of law? Discussions on the topics of capital punishment as procedural, as reference to “penological goals,” or as substantive issues (p. 155.) Chapter 7 covers “one of the most contested issues in the human rights arena,” abortion. (p. 187.) Issues such as right to life, right to privacy, right to equality, and right to reproductive freedom are brought into focus throughout this chapter. Chapter 8 brings forth the question “is health a human right?” and discusses causes and causations of health and healthcare, of human versus State actions, and trying to define this right for all. (p. 231) Chapter 9 explores housing as a human right. While many view housing as a basic human right, there isn’t any defining law or charter in the countries focused on in this treatise making it required for all. The EU comes closest to defining housing in their European Social Charter. (p. 265.) Chapter 10 provides the statement “unlike the rights to housing and health, there is a universal consensus that speech is a fundamental right.” (p. 305.) Theories behind why freedom of speech is such a universal right are discussed in detail. Following freedom of speech is the right to education in Chapter 11, considered a “multiplier” or springboard for other rights such as freedoms of speech, employment, and democratic participation. (p. 355.) Rounding up our rights discussed is freedom of religion in Chapter 12. Religious freedoms in practice become contaminated with sources such as “politics, power, community identities, custom, and tradition,” making the right of religion all the more complex to define. (p. 401)

At the conclusion of the treatise, readers will have a better understanding of the difficulties faced in defining what these rights are and how to judiciously find meaning and application. Fredman allows the reader to reach their own conclusions on these rights while providing a narrative of past judicial interpretation concerning these global issues. While not promising solutions to such contemporary problems, careful analysis and review help to assist in understanding the complexities and goals in identifying human rights globally.

 

From the Reference Desk: Using Treaty Body Websites to Find Implementing Legislation

By Amy Flick

A student working as a research assistant for a professor came to me looking for help finding information on implementation of the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity. He had a list of Caribbean and Latin American countries, and he wanted to find legislation and regulations of each country implementing the provisions on digital sequence information on genetic resources from the Nagoya Protocol. He had attended the library’s orientation for summer research assistants, so he had been using resources I mentioned at the orientation (Foreign Law Guide and the Law Library of Congress’ Guide to Law Online) to go country by country searching for legislation.

Major multilateral conventions usually have governing or supervisory bodies that track status and implementation of the treaty. The best known treaty bodies are for the core human rights instruments under the Office of the High Commissioner for Human Rights, but other important conventions have them as well. For example, Heidi Frostestad Kuehl and Megan O’Brien’s textbook International Legal Research in a Global Community uses the Kyoto Protocol as an example of treaty research at pages 47-49, recommending the official homepage of the UN Framework Convention as a starting point for research on developments related to the Kyoto Protocol.

Treaty body websites are a great resource pulling together all kinds of information on the treaty, including the text, parties, status, and history. For treaties in force, they may include reports and other information on implementation and progress meeting the treaty’s objectives. They may include publications on the work of the treaty body and on projects related to the convention, and they usually include news and press releases for recent developments. If there is a dispute resolution or complaint procedure in the treaty, those cases or jurisprudence may be on the treaty’s website.

An easy Google search led to the webpage for the Nagoya Protocol on the treaty body website for the Convention on Biological Diversity. We found digital sequence information listed as a key issue on the navigation bar; digital sequence information on genetic resources was not mentioned in the protocol’s text, but was addressed at the Second Meeting of the Parties to the Nagoya Protocol in December 2016. We also found the list of parties to the protocol, where we found that some of the countries on the student’s list are not yet parties to the Nagoya Protocol. The country profiles on the site were a great resource. For parties to the Protocol, the Access and Benefit-Sharing Clearing-House listed and provided text for legislative, administrative or policy measures on access and benefit-sharing, even providing English translations for some. Reports on implementation of the Nagoya Protocol were available for many of the parties. For non-party signatories and some other non-parties, National Reports and the National Biodiversity Strategy and Action Plans on the country profile pages had some information on progress toward ratification of the Nagoya Protocol and towards meeting its targets. And many of the country profiles, including some for the non-parties, included an ABS National Focal Point, contact information for a government environment minister who might respond to questions about the country’s implementation of the Nagoya Protocol.

Although we didn’t find any mention of digital sequence information in the national reports, the CBD website did have pages on Digital Sequence Information on Genetic Resources in the Key Protocol Issues. These included submissions of views and information on Digital Sequence Information, listed by party or organization. And the “relevant decisions and documents” included a Survey on Domestic Measures Addressing Benefit-Sharing from Digital Sequence Information on Genetic Resources, sent out on June 19, 2019 with return requested by July 1, 2019, so the student will be watching for survey results to be reported.

Knowing that the professor the student is working for does a lot of research on issues of intellectual property and genetic resources, I also recommended a few other resources to the student for finding national laws more broadly on genetic resources. WIPO Lex collects national laws and regulations on intellectual property topics, and one of the topics listed is “genetic resources.” ECOLEX has legislation on environmental law, with keyword filters including “genetic resources” and “biodiversity.” And Foreign Law Guide, although not the student’s best source for this treaty question, does have “genetic engineering” as a subheading under the subject Intellectual Property for some countries, with citations to legislation.

Once the student left, I was left still wondering “What is digital sequence information?”  The Food and Agriculture Organization has a topic page on digital sequence information. It says that “the term “DSI” currently has no agreed definition.” But the page explains that DSI is a “critical tool in the conservation and sustainable use of genetic resources for food and agriculture,” and it noted that the implications of DSI are being discussed under instruments including the Convention on Biological Diversity.

ASIL 2019 Recap: Litigating Climate Change: New Legal Challenges

Climate_change_icon.pngBy Mariana Newman

At 9:00am on Friday, March 29, 2019, Judith Levine, Senior Legal Counsel at the Permanent Court of Arbitration in The Hague, moderated a panel discussion which addressed, in her words, the role for lawyers to address climate change when political leaders do not. Joining Levine were Michael Gerrard, Andrew Sabin Professor of Professional Practice at Columbia Law School and director of the Sabin Center for Climate Change Law; Kristin Casper, Senior Legal Counsel for Strategic Litigation at Greenpeace International; and Paula Henin, a senior associate at Freshfields in New York working in the international arbitration group. In her opening remarks, Levine said that litigation in this area is an opportunity for lawyers to demonstrate “courage, creativity, and innovation.”

Gerrard highlighted a number of areas of litigation. Around 1300 climate lawsuits have been filed around the world, with the United States leading the way in the number of suits, followed by Australia and the United Kingdom.

In the United States, the largest number of cases filed have been under the National Environmental Policy Act, claiming an insufficient consideration of climate change in environmental impact reports.

Gerrard mentioned that public nuisance doctrine cases have reemerged under state common law, since the Supreme Court had held in American Electric Power v. Connecticut that the Clean Air Act displaced any federal common law claims.  There have also been securities fraud lawsuits, mostly against Exxon.

Gerrard discussed an ongoing case brought under public trust doctrine and substantive due process theories, Juliana v. United States. In that case, young people sued the United States government arguing that it has an obligation to protect the atmosphere and seeking an order that would force the government to aggressively cut back on greenhouse gas emissions. Currently the 9th Circuit interlocutory appeal is being briefed.

He then turned to cases from outside the United States, including Urgenda Foundation v. State of the Netherlands. In that case, a Dutch environmental group and 800 Dutch citizens sued their government, arguing that it was not doing enough to reduce its greenhouse gas emissions. The trial court ruled that the government had violated their duty of care under Dutch law to take climate change mitigation measures. The appellate court affirmed the judgment for the plaintiffs under different grounds: that the government had an obligation under Articles II and IX of the European Convention on Human Rights to do more to fight climate change. This case is now being appealed to the highest court in the Netherlands.  Gerrard also discussed cases in Pakistan and Peru.

Next, Kristin Casper from Greenpeace International took to the podium. She described climate change as a “human rights crisis” and highlighted three of Greenpeace’s cases where local communities are using legal tools to “seek climate justice.”

In Norway, Greenpeace Nordic partnered with a Norwegian organization that sued the government, arguing that the issuance of oil and gas leases in Arctic waters was in contradiction with Norway’s international commitments and a breach of constitutional protections for future generations, the right to a healthy environment, and other human rights standards. The lower court found that the right to a healthy environment was, as Casper called it, a “claimable right with teeth,” but it did not find that the right was violated in this particular factual scenario. The case has been appealed.

In Switzerland, Greenpeace Switzerland supported a group of over 1000 senior citizen women who brought a case arguing that the government’s inadequate climate change policies contributed to heatwaves, putting their lives and health at risk. The decision in the lower court was not favorable, but the case is now on appeal.

In the Philippines, a group of Typhoon Haiyan survivors joined by Greenpeace Southeast Asia-Philippines and other organizations filed a legal petition with the Commission on Human Rights, seeking to hold major carbon-producing companies accountable for climate impacts that result in human rights harms. There have been 12 hearings, 26 community witnesses, and 52 experts who have given evidence, all of which can be viewed online.  The Commission has the ability to issue a report with recommendations and to continue to monitor the human rights situation in the Philippines with respect to climate change.

Finally, it was Paula Henin’s turn to share her insights.  First, she discussed mechanisms for interstate disputes arising out of substantive obligations of the Paris Agreement.

Article 14 of the United Nations Framework Convention on Climate Change is incorporated by reference in Article 24 of the Paris Agreement. Article 14-1 allows parties to settle disputes through negotiation and the peaceful means of their own choice, which could include arbitration or mediation. Article 14-2 states that contracting parties may consent by a separate written instrument to the compulsory submission of disputes to the International Court of Justice and/or to arbitration in accordance with procedures to be provided in an arbitration annex to be adopted by the Conference of the Parties “as soon as possible.” However, no arbitration annex has yet been adopted.

Henin also described the possibility for the UN General Assembly to refer legal questions to the International Court of Justice for advisory opinions. There has been discussion of using that mechanism for climate change issues.

Next Henin turned to disputes involving private actors. Most investor-state disputes go to arbitration under treaties or under investment contracts. In the arena of treaty-based arbitration, Henin said that there have been over 40 claims brought against Spain, Italy, and the Czech Republic after those states backpedaled on incentive schemes put in place to promote renewable energy levels. She said that some recent arbitral decisions have opened the door for a new mechanism in investor-state arbitration: environmental counterclaims against investors brought by states. Investment contracts may incorporate specific emission reduction obligations or arbitration clauses may be included in contractual commitments that arise directly out of Kyoto Protocol mechanisms like carbon emission trading or climate finance.

To conclude the panel, Casper exhorted the attendees to devote their intelligence and resources to working to make progress on climate change.

ASIL 2019 Recap: The Law (and Politics) of Displacement

By Meredith Capps

ASILdisplacement.jpg
On Thursday, March 28, Jill Goldenziel of Marine Corps University moderated a discussion on legal and political challenges surrounding forced displacement, which is at an all-time high. Panelists included Itamar Mann of the University of Haifa; Daniel P. Sullivan of Refugees International; Alice Farmer, the Legal Officer for UN Office of the High Commissioner for Refugees (UNHCR)in Washington, D.C.; and Kristina Campbell, a clinical faculty member at the University of the District of Columbia.

Mann discussed some history of international law governing displaced persons, including the 1923 Treaty of Lausanne, which, in part, facilitated population exchange and redistribution between Greece and Turkey. In the human rights era following the World Wars, the forced movement of groups of persons became “the paradigm of a criminal act,”  with freedom of movement established in the Universal Declaration of Human Rights, and forced movement of populations prohibited in the Geneva Conventions. Mann identified the movement of Syrians out of Greece as a current challenge, and climate change as the impetus for movement a future issue.

Sullivan discussed the displacement of the Rohingya from Myanmar to Bangladesh, where roughly 1 million people now reside in camps. Rendered stateless in Myanmar as “illegal Bengalis,” the Rohingya are also not protected as refugees in Bangladesh (who has considered moving some to a disaster prone island in the Bay of Bengal). Despite clear evidence of criminal activity by Myanmar officials, an ICC referral may be blocked by Russia and China, and fact-finding missions and target sanctions have failed to impact change.

Farmer noted that with only 1/4 to 2/3 of displaced persons presently returning to their home state, traditional displacement solutions are no longer viable. Though some characterize migration north from Honduras, Guatemala, and El Salvador as economic migration, current patterns suggest a forced displacement, and UNHCR takes the position that many of those fleeing violence in these regions satisfy refugee criterion. The number of families migrating is particularly significant, and suggests that deterrence is ineffective. These changes in the nature of persecution test of weaknesses in international law, with adjudicators inconsistent in their approach to defining “refugee,” and burden sharing conversations amongst states fraught. While UNHCR is working to increase capacity in the Mexican asylum system and facilitate local integration, its capacity remains vastly below that of the U.S.

Campbell discussed U.S. immigration family detention centers, a new concept established during the mid-2000s. Per the Flores settlement agreement regarding detention conditions for minors, immigration authorities should preference release of minors to parents, and maintain humane, non-secure facilities. She described the few family detention centers in the U.S., and her clinic’s work assisting families in those centers, including credible fear reviews. Campbell said that the Trump administration’s June 2018 executive order did not, in fact, alter its zero tolerance policy that facilitated family separation, and it has no plan to reunite families separated as a result.

The panelists discussed several recurring, fundamental issues during the question-and-answer period. One was the idea of repatriation, with efforts to repatriate Rohingya during the 1970s cited as an effort that failed due to lack of political will, and safety concerns on the part of the group itself; when root causes remain unaddressed, repatriation is not a viable option. Domestic courts do, at times, enforce international norms to protect displaced persons, citing the East Bay Sanctuary Covenant case, but judicial enforcement can generate a backlash. Terminology used to characterize a situation can also either boost or diminishing political will. For example, when an NGO or state uses “ethnic cleansing,” rather than genocide or “crimes against humanity,” public sense of urgency may diminish. Conversely, frequent use of the term “crisis” or “surge” by advocacy groups and the media may desensitize the public.

Goldenziel also discussed the Global Compacts for Refugees and Migration, nonbinding agreements negotiated by many states, including the U.S., and adopted by the UN General Assembly, but whose status under international law is unclear. Negotiations resembled those for a treaty, with some states lodging statements similar to RUDs, and some states appear to consider it forceful despite its nonbinding status. The U.S. withdrew from the compact, citing sovereignty concerns.

Why Do Some Nations Still Refuse to Recognize Rape as a War Crime?

By Lora Johns

NobelThe 2018 Nobel Peace Prize was bestowed upon two people who have highlighted the viciousness of sexual violence in armed conflict and the importance of ending it. Nadia Murad is a 25-year-old Iraqi victim of gang rape who acts as a U.N. goodwill ambassador on the issue of human trafficking. Denis Mukwege is a 63-year-old Congolese gynecologist who treats rape victims brutalized by militias from Congo, Rwanda, and Uganda.

The Nobel Committee stated that sexual violence is a weapon of war and that “[a] more peaceful world can only be achieved if women and their fundamental rights and security are recognised and protected in war.” Rape destroys communities, spreads terror, humiliates victims, and perpetuates genocide. So why do some nations still ignore that rape is a war crime?

Certainly, the idea is not new; tribunals from the Nuremberg Trials to those in Rwanda and beyond already had explicitly condemned rape and sexual violence. In 2008, U.N. Security Council Resolution 1820 recognized rape during conflicts as a war crime. In 2010, it began a campaign to change the mindset that the strategic use of rape during wartime is inevitable. But while some international courts recognize strategic rape as an act of genocide and ethnic cleansing, not all national courts even deign to recognize that such abhorrent acts are occuring within their countries’ borders. And so the problem remains unsolved.

We cannot ignore the risk of oversimplifying the picture. Women are not the only victims of sexual violence, nor are men the only perpetrators of war crimes. A ‘“male-perpetrator and female-victim paradigm” is ultimately reductive and harmful to people of all genders. U.N. Security Council Resolution 1325 reaffirmed that women must have equal participation and full involvement in all efforts for the maintenance and promotion of peace and security, including decisionmaking in conflict prevention, but that international human rights law must also fully protect the rights of girls and women during and after conflicts. We cannot oversimplify the problem, but the outsize impact of sexual violence on women cannot be ignored, either.

This year’s Nobel Peace Prize winners illustrate that the problem of violence against women in war is far from solved. There are still no systematic efforts to prosecute sexual violence in war zones. But at least the formal recognition of rape as a war crime permits the International Criminal Court to prosecute and convict perpetrators. And through the Nobel Committee, Murad and Mukwege have increased the visibility of the importance of the role that gender plays in international issues of human rights, peace, and security.

FCIL-SIS Book Discussion Group to Meet Again in Baltimore This Summer

By Susan GualtierKorematsu Cover

Over the past several years, the FCIL-SIS Book Discussion Group, started by Dan Wade in in 2014, has become a popular informal addition to the AALL Annual Meeting’s FCIL conference programming.  Each year, we select a book to read in advance of the conference and meet during the conference to enjoy a book discussion, lunch or snacks, and each other’s fine company.

This year, the group will meet on Monday, July 16, at 12:30.  As in past years, we will meet in the Registration Area, and will find a table or small room from there.  The event will be BYO lunch or snacks.

This year’s book selection is In the Shadow of Korematsu: Democratic Liberties and National Security, by Eric K. Yamamoto.  Professor Yamamoto is the Fred T. Korematsu Professor of Law and Social Justice at the William S. Richardson School of Law, University of Hawai`i. He is nationally and internationally recognized for his legal work and scholarship on civil procedure, as well as national security and civil liberties, and civil rights and social justice, with an emphasis on reconciliation initiatives and redress for historic injustice.  The following book description appears on the Oxford University Press website:

The national security and civil liberties tensions of the World War II mass incarceration link 9/11 and the 2015 Paris-San Bernardino attacks to the Trump era in America – an era darkened by accelerating discrimination against and intimidation of those asserting rights of freedom of religion, association and speech, and an era marked by increasingly volatile protests. This book discusses the broad civil liberties challenges posed by these past-into-the-future linkages highlighting pressing questions about the significance of judicial independence for a constitutional democracy committed both to security and to the rule of law. What will happen when those profiled, detained, harassed, or discriminated against under the mantle of national security turn to the courts for legal protection? How will the U.S. courts respond to the need to protect both society and fundamental democratic values of our political process? Will courts fall passively in line with the elective branches, as they did in Korematsu v. United States, or serve as the guardian of the Bill of Rights, scrutinizing claims of “pressing public necessity” as justification for curtailing fundamental liberties?

These queries paint three pictures portrayed in this book. First, they portray the present-day significance of the Supreme Court’s partially discredited, yet never overruled, 1944 decision upholding the constitutional validity of the mass Japanese American exclusion leading to indefinite incarceration – a decision later found to be driven by the government’s presentation of “intentional falsehoods” and “willful historical inaccuracies” to the Court. Second, the queries implicate prospects for judicial independence in adjudging Harassment, Exclusion, Incarceration disputes in contemporary America and beyond. Third, and even more broadly for security and liberty controversies, the queries engage the American populace in shaping law and policy at the ground level by placing the courts’ legitimacy on center stage. They address how critical legal advocacy and organized public pressure targeting judges and policymakers – realpolitik advocacy – at times can foster judicial fealty to constitutional principles while promoting the elective branches accountability for the benefit of all Americans. This book addresses who we are as Americans and whether we are genuinely committed to democracy governed by the Constitution.

This year’s book selection promises to foster a rich discussion, and we look forward to welcoming both past book group members and new members interested in joining the discussion.  Again, this is an informal event, and RSVPs are not necessary; however, please feel free to let us know if you are planning to participate, so that we can get a general head count ahead of time.  Any questions or comments can be emailed to Susan Gualtier at sgua@law.upenn.edu.  We look forward to seeing you all in Baltimore for another great book discussion!

ASIL 2018 Recap: Building Victim-Led Coalitions in the Pursuit of Accountability

By Amy Flick

One of the first programs in ASIL’s 2018 Annual Meeting was a look at how victim-led prosecution efforts after mass human rights events can be more effective than those brought by states. The panel, moderated by Reed Brody of Human Rights Watch, focused on the case against Hissène Habré, the former dictator of Chad. One of the speakers was Souleymane Guengueng, one of the Habré regime’s victims and an activist with the AVCRP, the Chadian Association of Victims of Political Repression and Crime. Guengueng was praised by Brody and the other speakers as a hero.

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Brody and Guengueng told his story of having been imprisoned and tortured and having vowed while in prison to seek justice. Once freed after the fall of Habré’s regime, he worked with Human Rights Watch and the ATPDH (the Chadian Association for the Promotion and Defense of Human Rights) to bring a case in Senegal against Habré and his henchmen. Souleymane Guengueng gathered documents and victim statements, and he and other victims persuaded Belgium to retain the Habré case even after it had repealed its universal jurisdiction law. After Belgium asked the International Court of Justice to order Senegal to prosecute the case or extradite Habré, the ICJ ruled that Senegal must submit the case to competent authorities for prosecution or extradite him. Only then did Senegal and the African Union establish the Extraordinary African Chambers, and Hissène Habré was indicted for crimes against humanity, torture, and war crimes.

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Testimony from victims and witnesses, and the thousands of documents recovered by Human Rights Watch, were crucial to the Extraordinary Chambers case. Jacqueline Moudeïna, a lawyers for the victims, was almost assassinated, but she persisted with the case and was a key to getting witnesses to testify about the acts of sexual slavery committed by Habré and his men. Guengueng concluded by saying that he maintained his story and worked for justice for 18 years and Habré was convicted. He said that torture victims must know what they want to come from their case, and in his case he wanted justice; if he had not seen the case through, he would be dead. Reed Brody noted that the conviction was upheld in April 2017; damages have not yet been paid, but the conviction was still a victory for the victims. Details about the Hissène Habré are in Brody’s paper on the case, Victims Bring a Dictator to Justice: The Case of Hissène Habré.

Kathy Roberts of The Center for Justice & Accountability spoke about the role of lawyers representing victims of atrocities, emphasizing that they are dedicated to the victims, while attorneys for the state have other priorities to consider. She pointed out that in the United States, victims cannot bring a criminal action, but they can find a forum by bringing a civil case under the Alien Tort Statute and the Victims of Torture Act. She discussed the case of Mohammed Samantar v. Yousuf, brought in the U.S. courts against Samantar for crimes against humanity committed during the civil war in Somalia. There was no international interest in the case, and Somalia was a U.S. ally, but victims were active in building routes to justice. After the massacre of the Issa people in Northern Somalia, survivors of torture interviewed fellow survivors and refugees. Amnesty International connected them with attorneys who filed the case in the U.S. courts, and took other actions such as helping to find mass graves and identify bodies.

Roberts noted that victims may have a mistrust of government authorities, including the courts. She compared the cases in the Special Judicial Chambers in Tunisia, which had strong victims and attorneys comfortable with bringing cases in the French-based civil law system, with the Special Chambers in Kosovo, where victims have only recently been allowed as parties to the case under the Criminal Procedure Code, and attorneys involved in international tribunals in Kosovo for years, with relationships to the victims, were not qualified to appear in the Special Chambers courts. In Kosovo, victims often do not know what is happening in their cases.

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Diane Orentlicher of American University Washington College of Law and author of the book Some Kind of Justice: The ICTY’s Impact in Bosnia and Serbia, spoke last. She described how the lessons learned in the International Criminal Tribunal for the former Yugoslavia on the struggles of victims to be heard were recognized in the creation of the International Criminal Court. Delays in the ICTY meant that justice did not have the impact for victims that it would have coming sooner. The creation of the ICTY was a welcome development, but victims of the atrocities were already working, doing interviews, taking photos, and creating records. Rape victims had begun documenting what had happened to them and gathering testimony before the NATO intervention, even at great personal peril.  The ICTY did not see the survivors as their primary constituency. The ICC was set up with more detailed provisions for victim participation than the ICTY had. The need for victims to be kept informed was recognized. Orentlicher stressed that tribunals need to acknowledge the importance of victim witnesses and their lawyers, and they need to reach out to local communities to convey the message that the tribunal is about the survivors.