Monthly Archives: February 2014

SDOC-LOGO.dec08-300x71“Empowering Future Generations” is the topic of an April 18, 2014,  workshop for which the clinical faculty at Arizona State University Sandra Day O’Connor College of Law in Tempe welcome proposals.

To be discussed at this Southwest Regional Clinical Workshop, according to organizer Jaime Dahlstedt, Associate Clinical Professor of Law at Arizona State and Director of the law school’s Juvenile Advocacy Clinic, are “topics relevant to juvenile law, children and the law, and pedagogical considerations that arise when teaching a Clinic that affects children.” Welcomed are proposals addressing “the various substantive areas of law that impact children, pedagogical issues relating to working with children, case selection and best practices.”

Deadline for proposals is March 18; conference information here.

NorthKoreaWeb1Children figure prominently in the parade of horribles to be found in a U.N. commission’s just-published report on North Korea.

Though sadly not surprising, this is noteworthy, not the least because the country is a charter member state of the 1989 Convention on the Rights of the Child. The report, by a commission composed of Michael Kirby of Australia, Sonja Biserko of Serbia, and Marzuki Darusman of Indonesia, demonstrates that North Korea operates far from the objective of that near-universal treaty.

By way of example, ¶ 21 of the 36-page Report of the Commission of Inquiry on Human Rights in the Democratic People’s Republic of Korea, declares:

‘The State operates an all-encompassing indoctrination machine that takes root from childhood to propagate an official personality cult and to manufacture absolute obedience to the Supreme Leader (Suryong), effectively to the exclusion of any thought independent of official ideology and State propaganda. …’

(See also ¶ 81. The Report, which holds the U.N. document number A/HRC/25/63, is one of several documents released yesterday and available here.) (Credit for map © 2010 William Cornforth/Human Rights Watch, which accompanies a Human Rights Watch 2012 media release subtitled “New Testimonies Say Even Children Must Work or Face Detention Camps”)

Elsewhere the Report chronicles specific harms to children:

► Taking note of the regime’s effort to keep cities like the capital “‘pure’ and untainted,” the commission wrote at ¶ 41 (see also ¶ 89(j)):

‘[T]he large number of street children migrating clandestinely to Pyongyang and other cities – principally in search of food – are subject to arrest and forcible transfer back to their home provinces, experiencing neglect and forced institutionalization on their return.’

► The Report further observes, at ¶ 42 (see also ¶ 90(f)), that women who have fled to China and are forcibly repatriated suffer many human rights violations; for example, because of the regime’s “racist attitudes towards interracial children of Koreans,” repatriated women found to be pregnant

‘are regularly subjected to forced abortions, and babies born to repatriated women are often killed.’

► Violations persist even if the mother – who may have been trafficked to China “for the purposes of exploitation in forced marriage or concubinage, or prostitution” – remains in China. Her children, the Report explains at ¶ 42  (see also ¶ 90(e)), are among the estimated 20,000 who suffer a particular predicament:

‘These children are deprived of their rights to birth registration, nationality, education and health care because their birth cannot be registered without exposing the mother to the risk of refoulement by China.’

► As for children who live in North Korea itself, ¶ 47 of the Report states that commissioners are

‘particularly concerned about ongoing chronic malnutrition in children and its long-term effects.’

Foreign aid has not eased their plight, because (¶ 50):

‘The State denied humanitarian access to some of the most affected regions and groups, including homeless children.’

► Children were among the more than 200,000 persons from other countries whom the Report says (¶ 64; see also ¶¶ 67, 70-71) that regime subjected, over the decades since 1950, to

‘systematic abduction, denial of repatriation and subsequent enforced disappearance ….’

Having catalogued such violations in this Report and accompanying documents, the commission listed numerous recommendations. The media have focused on the recommendation for a U.N. Security Council referral of the situation to the International Criminal Court (¶¶ 87, 94(a)). Given North Korea’s nonparty status and close relation to China, a veto-holding permanent Security Council member, that seems less than a nonstarter.  But any reader of the commission’s account can only hope that policymakers will find some interim means to effect change and accountability in North Korea.

ul_logoWith the Convention on the Rights of Children reaching its quarter-century mark on November 20 of this year, the Department of Child Law of the Netherlands’ Leiden University is preparing to host a conference looking back and forward at the global state of children’s rights. Entitled “25 Years CRC,” it will be held November 17 to 19, 2014, at the university’s Leiden campus.

Organizers from several universities welcome paper proposals for the conference, from “international academics and professionals working in the field of children’s rights and related fields,” on subjects pertaining to conference sessions.

On November 18, the conference will address the theme “The implications of the CRC after 25 years.” Organizing this day’s sessions will be: Ton Liefaard and Mariëlle Bruning, Leiden University; Jaap E. Doek, former Chair of the U.N. Committee on the Rights of the Child; Jacqui Gallinetti, Head of Research at Plan International; Ursula Kilkelly, University College Cork, Ireland; and Wouter Vandenhole, University of Antwerp, Belgium. Breakout session topics will address:

► Embedding the CRC at the domestic level – the jurisprudential ‘value added’
► Embedding children’s rights as a vehicle for tertiary and post school studies
► Interdisciplinarity and children’s rights
► Monitoring children’s rights – international and domestic mechanisms
► Visibility of children – children’s participation and enforcement of their rights
► Juvenile justice

On November 19, discussion will turn to the theme “New frontiers of children’s rights for the future.” Organizing this day’s sessions will be: Julia Sloth-Nielsen and Simone van der Hof, Leiden University; Karin Arts, Institute of Social Studies, The Hague; Karl Hanson, Institut Universitaire Kurt Bösch, Sion, Switzerland; Andrew Mawson, Chief of child protection, UNICEF Office of Research Innocenti; Gary Melton, Clemson University, South Carolina; and Benyam Mezmur, Chair of the African Committee of Experts on the Rights and Welfare of the Child and Vice-chair of U.N. Committee on the Rights of the Child. Breakout session topics will include:

► Child protection systems
► Children and the global development agenda
► Children’s rights and the digital era
► Research for 2040
► The interrelationship between children’s rights and the broader human rights system
► Children’s rights and migration

Descriptions of each session, as well as registration fees and other details, are available in the full call for papers here. (Full conference website is here.) Abstracts of no more than 300 words are due no later than April 1, 2014.

fatouTwelve years ago today, a treaty aimed at removing anyone under 18 from combat entered into force – a milestone marked annually as Red Hand Day, also known as the International Day against the Use of Child Soldiers. A significant commemoration has been taking place all this week at The Hague, where International Criminal Court Prosecutor Fatou Bensouda and her staff have sought confirmation of child-soldiering charges brought against Bosco Ntaganda, the Congolese ex-militia leader who surrendered 11 months ago, after years as an ICC fugitive. (credit for photo, from video clip of Bensouda delivering opening statement at Monday’s session)

Ntaganda had been charged back in 2006 along with a colleague: Thomas Lubanga, the former leader whose trial led to the 1st ICC verdict, a 2012 conviction for the crimes of conscripting and enlisting children under 15 and of using them to take active part in hostilities in a non-international armed conflict, the 2002-2003 civil war in Ituri, a region in the eastern part of the Democratic Republic of the Congo. An ICC Trial Chamber ruled that the conduct occurred in violation of Article 8(2)(e)(vii) of the 1998 Rome Statute of the ICC.

At this week’s confirmation hearing, ICC Pre-Trial Chamber II – composed of Presiding Judge Ekaterina Trendafilova and Judges Hans-Peter Kaul and Cuno Tarfusser – has been considering the same charges against Ntaganda. The Prosecutor’s January 2014 submission to the chamber thus states (p. 5 ¶ 4):

‘… Bosco NTAGANDA is charged with the war crimes of enlisting and conscripting children under the age of 15 and using them to participate actively in hostilities within the region of Ituri during the entire period of the charges.’

Most notably, prosecutors have lodged additional charges, charges not presented in Lubanga, of crimes committed against children while they were in Ntaganda’s militia. (An NGO statement on this development is here.) The same paragraph of the Prosecutor’s submission thus concludes:

‘He is also charged with rape and sexual slavery of child soldiers within his own group during this same geographic and temporal scope.’

The charges point toward a broader presentation of the ways that children are affected by armed conflict (an approach I discussed in this newly published article, “Children and the First Verdict of the International Criminal Court”; note that although I am honored to serve as the ICC Prosecutor’s Special Adviser on Children in and affected by Armed Conflict, I contribute this and all blog posts in my personal capacity).

The week-long confirmation hearing in Ntaganda is set to conclude tomorrow. Further information, including links to documents and webstreaming, available here.

headerright“Frontiers of Children’s Rights” is the title of this year’s 2d annual summer course on international children’s rights, to be held July 7 to 11, 2014, in the Dutch cities of Leiden and The Hague. Sponsoring the course are Leiden Law School and its Grotius Centre for International Legal Studies. (Prior post.)

Organizers again this year are 2 Leiden Law experts: Dr. Ton Liefaard, who holds the UNICEF chair, and Dr. Julia Sloth-Nielsen, Professor of Children’s Rights in the Developing World. Other academics and practitioners in the field will round out the faculty for the week-long program, which will include a visit to the International Criminal Court. (By way of example, last year’s full program is here.)

Deadline for application is May 1. Details on the course, fees, and scholarship opportunities here.

zaOfficials have taken a step toward making it easier for refugees of armed conflict to find refuge in the United States.

Accounts of the world’s too-many civil wars often include astronomical numbers of persons in flight: nearly half a million in Central African Republic, more than 2 million in Syria, and so on. Precious few such refugees have found safety in the United States – only 31 Syrians last year, though camps like Zaatari in Jordan (right) house hundreds of thousands. (photo credit)

This is due in part to 8 U.S.C. § 1182, which bars anyone deemed to have given material support to listed armed or terrorist groups. The list of such groups is extensive. So too the list of what U.S. officials have deemed acts of “material” support – by way of example, an act as unavoidable as “pay[ing] a toll or tax to a terror group to pass through opposition-occupied territory.” Some 3,000 persons already in the United States are said to fear ouster based on this bar, which has prevented untold others from entering the country.

But the list of proscribed acts was trimmed last Wednesday, when a joint notice was published in the Federal Register. The notice stated that the heads of the U.S. Departments of Homeland Security, Justice, and State had determined that the terms of Section 1182

‘bar certain aliens who do not pose a national security or public safety risk from admission to the United States and from obtaining immigration benefits or other status.’

Accordingly, the three Secretaries announced they would exercise their discretion to exempt from the statutory barrier persons “who provided limited material support to” a listed organization or one of its members. It defined “limited material support” as:

  • “certain routine commercial transactions or certain routine social transactions (i.e., in the satisfaction of certain well-established or verifiable family, social, or cultural obligations),”
  • “certain humanitarian assistance, or”
  • “substantial pressure that does not rise to the level of duress ….”

Among other caveats in the Secretaries’ Notice of determination, such acts must have been performed absent any intent to aid terrorist activity.

The notice is not explicit on the extent to which the new ease-up might apply to certain refugees mentioned on page 1 of this 2007 report; that is, children who, in time of civil war, were forced to provide an array of services to rebel or terrorist groups.

nwc_leftCan the laws of war constrain robot warriors? Is international humanitarian law adaptable to the use of weapons that possess artificial intelligence? To what extent can such weapon systems determine who is, and who is not, a combatant? To what extent must humans control the decision to kill the enemy?

These questions and others fostered a fascinating discussion at “Legal Implications of Autonomous Weapon Systems,” a workshop at the Naval War College in Newport, Rhode Island, this past Thursday and Friday. We four dozen or so attendees were drawn from the armed forces of the United States, Australia, Britain, Canada, and Israel, from the International Committee of the Red Cross, and from a global array of academic institutions.

As one who reserves just a couple days for the topic in my Laws of War course, I came to the workshop with more questions than answers about the actual and potential uses in armed conflict of robots, the shorthand term I’ll use here for “autonomous weapons systems.” The military, characteristically, prefers an acronym: AWS.

The actual use of such weapons already is significant. Smart missiles called JDAMs deliver munitions to a target, while a WALL·E-looking machine called SWORDS has, as the U.S. Department of Defense wrote in 2004, “march[ed] into battle” alongside troops.

In fact, such machines tend not to be used in a fully independent manner (though with a little reprogramming, some could be). They are, we were told, semi-autonomous – humans are kept “in” or “on” the loop leading to choice of target and other decisions.

This mention of human supervision, like the WALL·E-on-the-march metaphor above, pointed to a pivotal workshop topic:

nwc_right►  Is it appropriate, as a matter of law or of ethics, to indulge in the human tendency to anthropomorphize these machines?

Apparently, some lab robots can recognize – or at least can mimic the act of recognizing – themselves in a mirror. Does this mean they are, or soon will be, sufficiently human-like to conduct operations wholly without oversight by actual humans? Might human-like robots evolve an ability to refuse programmed orders – orders that limited action to the boundaries of international humanitarian law? The answers to these questions, like many at the workshop, seemed to be “perhaps yes, perhaps no.”

At one end of the spectrum, this uncertainty has spurred a call for an outright ban. Emblematic is the headline of a notice about the November 2012 release of the Human Rights Watch report, Losing Humanity:

‘Ban ‘Killer Robots’ Before It’s Too Late: Fully Autonomous Weapons Would Increase Danger to Civilians’

At the other end of the spectrum, some would prefer to let the technology develop before the onset of any new legal regulation.

Many seem to fall in between. Acknowledged were some challenges; for instance:

► Does compliance with the precautions requirement of Article 57 of the Additional Protocol I (1977) to the four Geneva Conventions (1949) preclude the use of a fully autonomous weapon?

► Would the robotic commission of a war crime be susceptible to sanctions by global justice mechanisms like the International Criminal Court, and if not, what effective sanctions and deterrents would there be?

Persons falling in the vast middle of the regulatory spectrum harbored concerns about such questions, yet seemed to lean toward the view that if due care is taken, international humanitarian law can – and should – be applied. Documents discussed in this vein included the:

► U.S. Department of Defense Directive 3000.09, ¶ 4(a) (November 12, 2012), which states as “DoD policy” the following:

‘Autonomous and semi-autonomous weapons systems shall be designed to allow commanders and operators to exercise appropriate levels of human judgement over the use of force.’

heyns► April 9, 2013 report to the U.N. Human Rights Council by University of Pretoria Law Professor Christof Heyns, who’s served since 2010 as the Special Rapporteur on extrajudicial, summary or arbitrary executions. At ¶ 108 of his report, Heyns termed the 2012 Defense Directive as “imposing a form of moratorium” with respect to what he termed “lethal autonomous robotics,” or LARs. Heyns’ 2013 U.N. report (¶ 35) favored a broader scope for delay:

‘The present report … calls on States to impose national moratoria on certain activities related to LARs.’

A reprise of such issues likely will occur at the Meeting of Experts on Lethal Autonomous Weapons Systems set for May 13 to 16 in Geneva under the auspices of the 1980 Convention on Certain Conventional Weapons. Named in full the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects as amended on 21 December 2001, this treaty has 117 states parties, including the United States.

The Naval War College International Law Department workshop’s vital and timely discussion exposed many avenues for study – study sooner rather than later, so that the legal regulatory framework may be determined before fully autonomous robots are fully deployed.