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.

 

ASIL 2018 Recap: New Technologies in International Criminal and Human Rights Investigations and Fact-Finding

By Susan Gualtier

On Thursday, April 5th, I attended a panel entitled “New Technologies in International Criminal and Human Rights Investigations and Fact-Finding.”  The panel explored the increasing use of new technologies, such as social media, satellite data, mobile phone apps, and drone technology, in human rights fact-finding, particularly where sites are inaccessible or pose an especially high risk to human rights investigators.

The panelists first discussed their work with various technologies.  For example, Brad Samuels, of SITU Research, works with visual, panoramic, and geospatial representations that must be optimized for use in court. As Mr. Samuels explained, there might be many videos that capture the same moment in time, but from different viewpoints.  Part of his job is to use these videos to create an event reconstruction.  Jonathan Drake, from the American Association for the Advancement of Science, explained that part of the AAAS’s mission is to engage scientists in human rights and to further the use of science in advancing human rights.  The AAAS has performed grave site analysis and environmental analysis, using images to uncover lies by foreign governments.  They are currently considering how to integrate drones into human rights fact-finding and advancement.

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The panel then discussed issues surrounding the use of new and emerging technologies in human rights fact-finding.  For example, the use of smartphones to take videos and post them to social media has allowed more crimes to be exposed.  At the same time, it can be difficult to verify the accuracy of the information contained in the videos.  One way this problem has been addressed is through mobile phone apps, such as the eyeWitness to Atrocities app, which collects location data on the user from three different sources, provides a verified chain of custody for the video, and makes the user’s footage not editable.  However, there are benefits and drawbacks to such app technology.  On the one hand, it helps human rights workers to overcome access issues in situations where on-the-ground fact-finding would be impossible.  It also gives agency to the victims of the atrocities, rather than taking an imperialist, top down approach.  Nonetheless, the panelists all noted the need to be cautious when it comes to use of these apps.  While initial users have acted in good faith while generating evidence, several of the panelists expressed their concern that later users may have less noble intentions than the early adopters.  The panelists also noted the problem of visual bias (the preference for video representations, even in fields like politics where video cannot adequately capture much of the overall picture).  Scientific studies suggest that visual bias and the use of video evidence can introduce a host of problems into the courtroom.  What happens if we move toward mostly visual evidence, but that evidence is not necessarily representative of the situation as a whole?

Despite these and other issues, the types of evidence that can be captured using technology are extremely valuable to lawyers, judges, and other players in field of human rights work.  Technology has led to better results in investigations by providing access to witnesses and to physical documents that would otherwise be impossible to obtain.  It allows judges to see the violence for themselves when travel to the site of an atrocity would be impossible.  It even allows for more complete crime scene investigations.  Nonetheless, the panel urged that we proceed with caution.  There will need to be some guidelines or minimal standards for technology-generated evidence so that it will be admissible in court.  Tech designers are still much more risk-friendly, and perhaps too willing to let technologies fail, than are human rights attorneys, who need to protect witnesses and victims and to meet the demands of tribunals.  Moreover, we must remember that not everyone has access to technology; many of the places where we find human rights offenses are also places where people simply do not have access to mobile phones, apps, and social media.  And some of the worst accountability issues occur where there’s awareness anyway.  Ultimately, it is critical that those using the new technologies remain aware of its limitations.  We should not overemphasize the technological tools just because they are “cool.”  In the end, we should use them to bolster cases that are already based on traditional human rights fact-finding.

The Organization of American States: Brief Comments on Occasion of Its 70th Anniversary

By Carlos Andrés Pagán

The Organization of American States (OAS) is about to mark its 70th anniversary.[1] This is a matter for celebration. Regardless of some of its more controversial history,[2] this intergovernmental organization has accomplished many impressive milestones for human rights in the Americas. The foundational charter of the OAS was adopted in the same meeting that adopted the American Declaration of the Rights and Duties of Man,[3] the first international human rights instrument of a general nature. It is widely accepted that the inter-American human rights system was born with the adoption of these two instruments.

As the forerunner forum of human rights in the Americas, this anniversary provides a unique opportunity to reflect on the OAS’ role in establishing the most significant human right bodies and agreements in our region. In its first decade, the organization was responsible for the creation of the Inter-American Commission on Human Rights,[4] followed by the American Convention on Human Rights (ACHR)[5] in 1969. In 1979, the OAS established the Inter-American Court of Human Rights (IACtHR)[6] and, in 2001, the Inter-American Democratic Charter.[7]

To highlight the importance of these inter-American institutions and agreements, let us glance at some of the contributions that the IACtHR has produced through is rulings. To begin, the Court is considered a highly productive one, having rendered hundreds of decisions, judgments, and advisory opinions. But more importantly, some of its decisions have grounded and expanded our notion of what human rights stand for. For example, the case of “The Last Temptation of Christ”, Olmedo-Bustos et al. v. Chile,[8] regarding freedom of religion and expression, led Chile to revise its Constitution to comply with binding obligations arising from the ACHR. This was the first time a regional human rights court ruling led to a constitutional modification. The case of Hacienda Brasil Verde v. Brazil, related to modern-day slavery, is also deemed a breakthrough in its area.[9] More recently, the landmark advisory opinion issued last January regarding same-sex marriage and transgender rights is set to establish precedent for 19 other Latin-American and Caribbean countries who have agreed to abide by the Court’s decision.[10]

As we celebrate its historic achievements, let us also take notice of the plethora of available secondary sources for conducting research on the OAS. Many of these can be found through a library catalog search or by browsing through some of the many great research guides available on the topic. The OAS website can also be very helpful for this research. There you will find the organization’s primary documents along with other key reference materials, such as annual reports of the Secretary General, OAS resolutions, agreements, and treaties. Through the years, the OAS document search feature has improved significantly and their subject index with their close to 60 categories (ranging from Access to Information to Youth), is also a good starting point for research.

[1] Established in April 30, 1948, the OAS’s members are the 35 independent states of the Americas.

[2] I am mainly referring to the ideological divisions that in the past has disrupted the organization’s progressive agenda.

[3] Charter of the Organization of American States, April 30, 1948, 119 U.N.T.S. 3.

[4] http://www.oas.org/en/iachr/

[5] American Convention on Human Rights, Nov. 21, 1969, 1144 U.N.T.S. 143.

[6] http://www.corteidh.or.cr/

[7] http://www.oas.org/en/democratic-charter/

[8] “The Last Temptation of Christ” (Olmedo-Bustos et al.) v. Chile. Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 73 (Feb. 5, 2001).

[9] http://www.corteidh.or.cr/docs/asuntos/trabajadores_15_02_16_por.pdf

[10] Gender identity, and equality and non-discrimination with regard to same-sex couples. State obligations in relation to change of name, gender identity, and rights deriving from a relationship between same-sex couples (Arts. 1(1), 3, 7, 11(2), 13, 17, 18 and 24 American Convention on Human Rights), Advisory Opinion OC-24/17, Inter. Am. Ct. H.R. (ser. A) No. 24 (Nov. 24, 2017), http://www.corteidh.or.cr/docs/opiniones/seriea_24_esp.pdf

IALL 2017 Recap: Keynote Address

By Taryn Marks

The last day of the 2017 IALL Annual Course opened with the Keynote Address, given by Dr. Abdullahi Ahmed An-Na’im, a highly-regarded academic who serves as the Charles Howard Candler Professor of Law at Emory School of Law, an Associated Professor at Emory College of Arts and Sciences, and as Senior Fellow at Emory’s Center for the Study of Law and Religion.

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Dr. Abdullahi Ahmed An-Na’im giving his talk on the dialectic of civil and human rights at IALL 2017. Photo courtesy of Avery Le, October 25, 2017.

Dr. An-Na’im’s talk, entitled “Dialectic of Civil Rights and Human Rights in International Law and Domestic Law and Policy of the USA: Perspectives of an African American Muslim Speaker” (say that three times fast!), began by challenging the United States’ policies and practices on human and civil rights. Using the Universal Declaration of Human Rights and its proclamation that human rights should be “a common standard of achievement for all peoples and all nations” as a foundation for his speech, Dr. An-Na’im argued that the United States faces a fundamental crisis in how it currently deals with human and civil rights.

Human rights and civil rights often interact and the full enforcement of both sets of rights can result in synergies—but, Dr. An-Na’im said, in ways that are not immediately obvious. Perhaps because of this distinction, the United States often differentiates civil rights and human rights, to the detriment of human rights. Civil rights in the U.S. offer protection to citizens and lawful residents only, at times not even accomplishing that. Dr. An-Na’im pointed to racial discrimination in the United States as an example of the failure of civil rights within the country, condemning the U.S. in no uncertain terms.

The U.S. often points to the strong protection granted to civil rights in the country as evidence of its success in human rights. Dr. An-Na’im not only disagreed with that statement, but says that the two are part of a two-way street. Human rights should apply to “all human beings by virtue of their humanity and without requirement of membership of any group or class.” Unfortunately, Dr. An-Na’im argued, the U.S. fails to apply human rights within its own borders, despite the propaganda that it promotes internationally regarding human rights. This can be seen not only through the United States’ dismal record on civil rights, but also in the United States’ reluctance to sign on to international treaties related to human rights. As one of many examples, Dr. An-Na’im pointed to the fact that the U.S. has not signed the Convention on the Rights of the Child.

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Dr. An-Na’im answers questions after his talk. Photo courtesy of Avery Le, October 25, 2017.

Ultimately, a country should have both strong civil rights and human rights. Civil rights and human rights should not be viewed as mutually exclusive, in that the success of one should not automatically mean the success of the other. In fact, Dr. An-Na’im said, strong protection of both civil rights and human rights creates exceptional synergies.

This recap touches only the surface of the many issues, controversies, and ideas that Dr. An-Na’im brought up in his keynote address. I strongly encourage everyone, even those who attended the conference, to watch his address in order to get the full breadth and depth of his arguments.