Visit from LL.M. alumnus sheds light on in-court Congolese child-rights project

kabuyaD3_17aug15A favorite aspect of my new position is becoming acquainted with Georgia Law’s vast global community.

Yesterday was a special treat: We at the law school’s Dean Rusk International Law Center received a visit from an alum who is doing great work back home in the Democratic Republic of the Congo.

The alumnus is Mukendi Kabuya, who earned an LL.M. degree here in 2010. He’s now an attorney at Kinshasa’s Delt-August Law Firm, where his practice includes international investment, immigration, and business matters.

Last year, Mukendi co-founded a child-rights nonprofit modeled on the Court Appointed Special Advocate (CASA) program, where he used to work. CASA Democratic Republic of Congo is based in Kinshasa, but works throughout the country to provide in-court assistance to abused and neglected children – including children who have survived armed conflict and similar violence. This critical effort comes at a critical time: Congo’s juvenile justice system is very young. Before it was established, children found themselves relegated to the adult system.

While here, Mukendi, who is President of the Africa Chapter of the UGA Alumni Association, stopped by the university’s African Studies Institute. And he talked about his work and career with Georgia Law’s newest LL.M. students, who begin classes today. He’s pictured above talking with two just-enrolled students from Nigeria, Gladys Ashiru, at left, and Oluwakemi “Kemi” Kusemiju.

Looking forward to the next visit from this impressive alum.

Watch 9th annual IHL Dialogs online

ihldialogsFurther to the recent announcement regarding the International Humanitarian Law Dialogs set for August 31-September 1, 2015, happy to report that many sessions will be available online, as follows:

Robert H. Jackson Center

Please join us digitally if you are unable to make the journey to Chautauqua.

Sellers, Wald, Paz y Paz to headline International Humanitarian Law Dialogs

Delighted to announce that among the accomplished international criminal law experts keynoting the International Humanitarian Law Dialogs, set for  August 31-September 1, 2015, will be 3 exceptionally accomplished women: Patricia Sellers, Patricia Wald, and Claudia Paz y Paz.

This year will be the 9th that international prosecutors and other experts gather at the lovely lakeside Athenaeum Hotel, located at the Chautauqua Institution in upstate New York, in order to take stock of developments in international criminal law. As its title indicates, this year’s theme commemorates two milestones: “‘The Wrongs We Seek…’ The Srebrenica Massacre 20 Years On — and in Commemoration of the Opening of the International Military Tribunal at Nuremberg 1945.”

And it’s the 5th that IntLawGrrls blog has had the honor of selecting the person who will deliver the lecture in honor of Katherine B. Fite, the State Department lawyer who helped Chief U.S. Prosecutor Robert H. Jackson with the drafting of the London Charter and other duties in preparation for the 1st postwar trial at Nuremberg. (My own 2011 Fite Lecture, which describes Fite’s career, is here.)

sellers► This year’s Fite Lecture, scheduled for the morning of Monday, August 31, promises to be a great conference-opening keynote. Sellers (right) serves as International Criminal Court Prosecutor Fatou Bensouda’s Special Adviser for Prosecution Strategies, having been appointed in December 2012 (at the same time that yours truly began similar service on issues related to children in and affected by armed conflict, and IntLawGrrl and Washington University-St. Louis Law Professor Leila Nadya Sadat on issues related to crimes against humanity). That role succeeds prior service as a legal advisor and trial attorney at the International Criminal Tribunals for Rwanda and for the former Yugoslavia, as well as expert consultancies to UN bodies, on matters related to children, gender, women, and investigations. Sellers, who is a Visiting Fellow at Kellogg College, Oxford University, has received multiple honors, including the American Society of International Law Prominent Women in Law award. (photo credit)

Introducing her will be IntLawGrrl Beth Van Schaack, whose titles include Leah Kaplan Visiting Professor in Human Rights, Stanford Law School, and Senior Adviser, Office of Global Criminal Justice, U.S. Department of State.

Claudia-Paz-y-Paz-Bailey► At lunchtime on the same day, Dr. Claudia Paz y Paz (left) is scheduled to deliver the Dialogs’ annual Clara Barton Lecture. (photo credit) As we’ve detailed in prior posts here and here, Paz y Paz is the former Attorney General of Guatemala who pursued a genocide prosecution, in national court, against Efraín Ríos Montt, the dictatorial President of Guatemala during the early 1980s. (Just last month, he was ruled mentally unfit to stand retrial on the charges.)

Introducing Paz y Paz will be Federico Barsillas Schwank, Legal Advisor, American Red Cross, Washington, D.C.

wald► The closing keynoter, after lunch on Tuesday, September 1, will be the Honorable Patricia Wald (right), who served as an ICTY judge at that tribunal’s first Srebrenica genocide trial. (photo credit) Her tenure at the ICTY followed a long career of service in the U.S. government, most notably as the 1st woman to serve as Chief Judge of the U.S. Court of Appeals for the District of Columbia Circuit. She continues to serve as an expert and advisor on numerous panels related to security and international criminal law. She honored IntLawGrrls in 2009 by contributing a series of 3 superb posts, available here, here, and here.

Yours truly will have the honor of introducing Judge Wald.

In addition to these headliners, the Dialogs will feature breakout porch sessions, led by us experts-in-residence (on subjects such as “The legacy of the International Military Tribunal at Nuremberg,” “Legacy of the ICTY,” and “Role of the ICC in the Middle East”), as well as many other events. Of particular note:

truthSunday, August 30

► Screening of Seeking Truth in the Balkans, a 2014 documentary on the work and legacy of the ICTY, by Erin Lovall and June Vutrano.

Monday, August 31

► Reflections by current and former international prosecutors, always a Dialogs highlight. Expected to take part this year are James Stewart (Deputy Prosecutor, International Criminal Court), Serge Brammertz (Prosecutor, ICTY), Andrew Cayley (Director of Service Prosecutions, United Kingdom), Hassan Jallow (Prosecutor, Mechanism for International Criminal Tribunals and International Criminal Tribunal for Rwanda), Nicholas Koumjian (Co-Prosecutor, Extraordinary Chambers in the Courts of Cambodia), Brenda Hollis (Prosecutor, Residual Special Court for Sierra Leone), David Crane (former Prosecutor, Special Court for Sierra Leone), Richard Goldstone (former Prosecutor, ICTY and ICTR), Desmond de Silva (former Prosecutor, SCSL), and Mark Harmon (formerly at ICTY).  Case Western Law Interim Dean Michael Scharf will moderate.

► Roundtable on the July 1995 “Srebrenica Massacre,” in which upwards of 8,000 Bosniak boys and men perished. Sadat will moderate a discussion among Judge Wald, former U.N. Legal Counsel Hans Corell, Professor William A. Schabas, and Mark Harmon, who resigned just weeks ago from his post as a judge at the Extraordinary Chambers in the Courts of Cambodia, the hybrid tribunal set up to try persons accused of criminal responsibility for the 1970s Khmer Rouge reign of terror.

► Keynote address by a representative of the Mayor of Nuremberg, the German city where the post-World War II Trial of the Major War Criminals opened 70 years ago, on November 20, 1945.

Tuesday, September 1

► Reflections by M. Cherif Bassiouni, Emeritus Law Professor, DePaul University.

► International criminal law year in review, by Washington & Lee Law Professor Mark A. Drumbl.

► Issuance of the 9th Chautauqua Declaration.

More information, including a registration form, may be found at the website of the Robert H. Jackson Center, a primary sponsor, here.

In passing: Navy Lt. Cmdr. William Kuebler, defense attorney at GTMO for Omar Khadr

kueblerShocked and saddened to read that U.S. Navy Lieutenant Commander William Kuebler died from cancer on July 17, at age 44. (photo credit)

Bill’s representation of Omar Khadr, born in Canada and seized by U.S. forces in an Afghanistan battle, is recounted in an Ottawa Citizen obituary. I feel compelled to add my own recollection.

We met in December 2008, at Guantánamo. The occasion was the first set of military commissions hearings since November 4, 2008, when voters chose then-Sen. Barack Obama to become the next U.S. President. Because Obama had pledged to shut down GTMO, many of the lawyers, media, and observers aboard the chartered jet that took us to the U.S. military base at the southwestern tip of Cuba were calling this “The GTMO Farewell Tour.”

The week began with a failed attempt by Khalid Sheikh Mohammed and his codefendants to plead guilty to capital charges of masterminding the terrorist attacks of September 11, 2001. It ended with a hearing in Khadr – a hearing in which Kuebler proved himself a master of his craft. As I wrote at page 13 of my report for the National Institute of Military Justice:

‘Of particular interest was the effort of Navy Lt. Cmdr. William C. Kuebler (pronounced “keebler”), lead military counsel for Omar Khadr, to gain admission during this pretrial hearing of photos made during the firefight at which Khadr was captured. Kuebler argued that the photos would help the defense to make its case for compelling certain witnesses, whose testimony, it was said, would exonerate Khadr by indicating that he was buried beneath rubble at the time someone threw the grenade that killed a U.S. servicemember. The judge refused, and Kuebler went forward without the photos. But the dispute whetted the appetite of the media to see the photos, and some published a next-day story suggesting Khadr’s innocence.’

This understanding of the importance of public scrutiny, combined with an ability to inform the public even as a request was denied, illustrated Kuebler’s diligent representation of his client, Khadr – who, today, is out of prison and living in Alberta, Canada, released on bail while appeals are pending. “Khadr owes more to Bill than to any other advocate,” the Citizen obituary aptly states. And so we pause in his memory.

Marriage Cases ruling upends tradition … on how many teach Constitutional Law

Just had a chance to read in full the Marriage Cases – that is, U.S. Supreme Court’s June 26 judgment in Obergefell v. Hodges – and was struck by the degree to which it upends tradition.

No, not that tradition.

What’s striking is not so much the holding that the Constitution guarantees a right to marry that extends to couples regardless of sex. That result has seemed reside in the it’s-only-a-matter-of-time category for a while now.

What’s striking, rather, is that in reaching this result, the Court explicitly revived an interpretive method that views certain constitutional clauses as interlinked.

‘The right of same-sex couples to marry that is part of the liberty promised by the Fourteenth Amendment is derived, too, from that Amendment’s guarantee of the equal protection of the laws,’

14th Amendment 2Justice Anthony M. Kennedy wrote for a 5-member majority. He continued:

‘The Due Process Clause and the Equal Protection Clause are connected in a profound way, though they set forth independent principles. Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always co-extensive, yet in some instances each may be instructive as to the meaning and reach of the other. In any particular case one Clause may be thought to capture the essence of the right in a more accurate and comprehensive way, even as the two Clauses may converge in the identification and definition of the right.’

In support of this posited “synergy,” Kennedy cited numerous twentieth-century decisions, among them  Loving v. Virginia (1967), Zablocki v. Redhail (1977), and one I find a super teaching vehicle, Skinner v. Oklahoma (1942). He chose to stick close to the family-related subject matter at hand, and so omitted other examples of this method, such as Griffin v. Illinois (1956), requiring the provision of trial transcripts to rich and poor defendants alike. Each judgment evinces more concern for doing justice than for divining a single-clause source from open-ended terms like “due process” and “equal protection.” Some of these decisions also tend not to devote much time to shoehorning facts into “levels of scrutiny” – a judge-created superstructure not found in the Constitution’s text, and not invoked in last month’s Marriage Cases.

Far from aberrational, these developments follow a trend detectable in many constitutional opinions of the last couple decades. It bears echo to other Kennedy opinions, not to mention the duty to govern impartially posited by Justice John Paul Stevens during his many years on the bench. (Kennedy’s view that the Constitution’s framers intended today’s Court to interpret their words in an evolutive manner likewise jibes with writings of Stevens and another retired Justice, David H. Souter.)

Many law schools follow a format that puts the Due Process Clause in Con Law I and the Equal Protection Clause in Con Law II. That division has made for gaps or overlaps in teaching a number of issues. LGBT rights has been one of them. There are others – such as abortion – and one imagines the list will grow with the Court’s overt resuscitation of this method and others subsumed within what Kennedy calls “reasoned judgment.”

Time for those of us in U.S. legal academia to rethink how we teach constitutional law.

To close America’s 4th of July weekend, reviewing un cri de coeur démocratique

mdmAmid this weekend’s reminiscences of the birth of the United States, I found much to ponder in one reading – not in English, but rather in French.

Entitled La démocratie dan les bras de Big Brother – that is, Democracy in the Arms of Big Brother – it’s the transcript of Le Monde journalist Franck Johannès‘ recent interview with a longtime colleague of mine, Mireille-Delmas Marty, emerita professor of the Collège de France de Paris. (photo credit; prior posts)

Delmas-Marty sounds a warning about the “downward spiral” that, in her view, has created an unwelcome “metamorphosis in criminal justice” in the years since terrorists attacked New York and Washington on September 11, 2001. 1st in the vortex was the United States, she says, and she fears that her own homeland, France – and, indeed, the planet – are following suit.

Contributing to this analysis, in her view:

► Characterization of terrorist acts as “exceptional” offenses, related to more to war than to ordinary crimes, coupled with the redefinition of unlawful association so that it may apply to “only one person,” without proof of actual association with another.

► Globalization of surveillance and “social control,” in an effort to predict offenses before they happen. Post-9/11, the United States moved from notions of preemption to notions of prevention, she notes. She argues that today the United States, and others, have moved further, to “prediction” – a shift that lends justification to confinement of persons deemed harmful, not only before they have been proved to commit an offense, but also after they have served postconviction sentences. She contends (all translations mine):

‘To lock up a human being, not to punish harm but rather to prevent harm, as if he were a dangerous animal, is in truth an act of dehumanization…’

► Persistence of nonstate actors that once would have been deemed exclusively “criminal organizations,” but now are seen as parties waging armed conflict. Not long ago, Al Qaeda dominated this discourse; today, it is “the so-called ‘Islamic State.'” Delmas-Marty continues:

‘With whom is a treaty of peace to be concluded? We now have all the ingredients for a global, and permanent, civil war.’

liberteAmong Delmas-Marty’s recent books is Libertés et sûreté dans un monde dangereux (2010). In the Le Monde interview, as in that book, she calls for restoring a balance between desires for security and the value of liberty. (It’s a balance that I’ve explored in my own writings, including “Punish or Surveil” (2007).)

“To dream of perfect security,” Delmas-Marty maintains, is an “illusion.” She allows that “[i]n the name of the struggle against terrorism, there can be restrictions on the right to respect for privacy,” yet she would require that such restrictions themselves be constrained in accordance with the principles “of legality, proportionality, and democratic control.”

Much to ponder as the United States begins its 240th year of democracy.

Briefing: Torture & children deprived of liberty

mendezAll who care about children and international law will want to register for “Torture of Children Deprived of Liberty: Avenues for Advocacy,” “a global online briefing” to be hosted at 12 noon Eastern Standard Time next Tuesday, May 5, by the Anti-Torture Initiative of the D.C.-based Center for Human Rights & Humanitarian Law, American University Washington College of Law.

Panelists will include:

Juan E. Méndez, American University law professor, U.N. Special Rapporteur on Torture, and author of the 2015 thematic report on children deprive of liberty, which will form the core of the discussion (credit for photo of Méndez delivering this report to the U.N. Human Rights Council last month)

Jo Becker, Advocacy Director, Children’s Rights Division, Human Rights Watch

Ian M. Kysel, Dash/Muse Fellow and Adjunct Professor of Law, Georgetown Law Human Rights Institute

► Dr. Benyam Dawit Mezmur, Vice Chairperson of the U.N. Committee on the Rights of the Child and of the African Committee on the Rights and Welfare of the Child, as well as  a law professor at the University of Western Cape in South Africa, and Addis Ababa University in Ethiopia

Registration and further information here.