human rights

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Very pleased to announce that papers from a Georgia Law conference “Children & International Criminal Justice” have just been published by our Georgia Journal of International & Comparative Law.

The conference was cosponsored by Dean Rusk International Law Center and the Georgia Law Project on Armed Conflict & Children, as well as the university’s African Studies Institute, the Planethood Foundation, and the American Society of International Law-Southeast.

About 2 dozen experts came to Athens, Georgia, from as far as Doha and Kinshasa, to discuss the topic at hand. In so doing, they assisted in the preparation of the International Criminal Court Office of the Prosecutor Policy on Children. As detailed in recent posts, available here and here, the public comment period for the draft of that Policy continues through August 5, 2016, with launch of the final document set for mid-November.

bensouda_me2_28oct14cropA keynote speech by ICC Prosecutor Fatou Bensouda (at right) highlighted our conference, and the text of her speech headlines the edition. Other writings link the work of the ICC to the 1989 Convention of the Rights of the Child, examine the experiences of children in armed conflict and similar situations. Student rapporteurs’ accounts of expert breakout sessions additionally treat a range of issues. All these papers contributed significantly to the Policy process.

The edition concludes with students’ notes apart from the conference; one of these, for which I was honored to serve as faculty adviser, examines the issue of child marriage.

Here, in full, is the table of contents for Volume 43, issue 3, with PDF links to each article:

Children and International Criminal Justice Conference

“Convening Experts on Children and International Criminal Justice,” by yours truly, Diane Marie Amann (above, at left), Associate Dean for International Programs & Strategic Initiatives and Emily & Ernest Woodruff Chair in International Law, and also Prosecutor Bensouda’s Special Adviser on Children in & affected by Armed Conflict

“Children and International Criminal Justice,” by Fatou Bensouda (above, at right), Prosecutor of the International Criminal Court

malone“Maturing Justice: Integrating the Convention on the Rights of the Child into the Judgments and Processes of the International Criminal Court,” by Linda A. Malone (right), Marshall-Wythe Foundation Professor of Law and Founding Director of the Human Security Law Center, William & Mary Law School

drumblm“Children, Armed Violence and Transition: Challenges for International Law & Policy,” by Mark Drumbl (left), Class of 1975 Alumni Professor of Law and Director of the Transnational Law Institute at Washington & Lee University School of Law

“Child Protection in Times of Conflict and Children and International Criminal Justice,” by Kerry L. Neal neal(right), Child Protection Specialist, Justice for Children, UNICEF, New York

“Expert Workshop Session: Regulatory Framework,” by Ashley Ferrelli, Eric Heath, Eulen Jang, and Cory Takeuchi (all Georgia Law graduates, who were members of GJICL)

“Expert Workshop Session: Child Witnesses: Testimony, Evidence, and Witness Protection,” by Chelsea Swanson, Elizabeth DeVos, Chloe Ricke, and Andy Shin (now Georgia Law graduates, all then were members of GJICL)

“Expert Workshop Session: The Global Child,” by Haley Chafin, Jena Emory, Meredith Head, and Elizabeth Verner (all Georgia Law graduates, who were members of GJICL)

Student Notes

“Changing the Game: The Effects of the 2012 Revision of the ICC Arbitration Rules on the ICC Model Arbitration Clause for Trust Disputes,” by Colin Connor

“Water, Water Everywhere, But Just How Much is Clean?: Examining Water Quality Restoration Efforts Under the United States Clean Water Act and the United States-Canada Great Lakes Water Quality Agreement,” by Jill T. Hauserman

“REACHing for Environmental and Economic Harmony: Can TTIP Negotiations Bridge the U.S.-EU Chemical Regulatory Gap?,” by Ashley Henson

“Child Marriage in Yemen: A Violation of International Law,” by Elizabeth Verner

eleanorToday is Human Rights Day. On this day 67 years ago, at the Palais de Chaillot in Paris, the General Assembly of the United Nations adopted what has become the touchstone articulation of humans’ place in our world.

We – “All human beings” – proclaims the 1st article of the 1948 Universal Declaration of Human Rights, “are born free and equal in dignity and rights.” All of us “are endowed with reason and conscience,” it continues. It follows, then, that each of us “should act towards one another in a spirit of brotherhood.” In the French version adopted at the same time, that last word is “fraternité,” and hearkens to the French Déclaration, the American Declaration and Bill of Rights, and many others.

Indeed, the document itself benefits from views of sages throughout the world. Gandhi was one who weighed in, thanks to a survey sponsored by UNESCO. The American Law Institute contributed a Statement of Essential Rights. That statement, like the Universal Declaration as a whole, owes much to the Four Freedoms that President Franklin Delano Roosevelt identified in a 1941 speech before Congress.

A half-decade later, that president’s widow, Eleanor Roosevelt, would chair the U.N. committee tasked with drafting the Universal Declaration. Among those joining her in the work were John Humphrey of Canada, Peng Chun Chang of China, Charles Malik of Lebanon, and René Cassin of France. At the time the document was adopted, she declared:

“This declaration may well become the international Magna Carta of all men everywhere.”

It would be easy to look wistfully to that statement, to assume that the world once was better than it seems today. Yet even then, fissures were apparent:

► No state voted against the Universal Declaration, but not every state voted for it, either. Eight of 56 countries abstained: the Soviet Union, the Ukrainian Soviet Socialist Republic, the Byelorussian Soviet Socialist Republic, Yugoslavia, Poland, Saudi Arabia, and South Africa.

► Since 1948, the United Nations has grown to nearly 200 member states. Many of the newcomers once were colonies of states that endorsed the Universal Declaration. Even some of the charter members have undergone profound changes – the China that sent diplomat Chang in 1948 is quite different from the China that now holds the U.N. seat.

► The challenges of sovereign-state diversity and the aims of universal equality – for women as well as men, sisters as well as brothers – change with globalization. The United Nations’ 2015 Sustainable Development Goals represents the body’s latest effort to respond.

► Even the chief proponents hedged their support. By way of example, Roosevelt’s ringing endorsement quoted above occurred in a statement that took pains to stress what the United States did not mean to endorse. In a line that bears echo with later U.S. Supreme Court decisions in DeShaney and Gonzales, she said:

“[M]y government has made it clear in the course of the development of the declaration that it does not consider that the economic and social and cultural rights stated in the declaration imply an obligation on governments to assure the enjoyment of these rights by direct governmental action.”

► Other states turned a colder shoulder toward civil and political rights, signaling that even at its birth, the notion of the indivisibility of rights would prove difficult to sustain and enforce.

Thus today, even as we celebrate another Human Rights Day, we must redouble our efforts to make the promise of the Universal Declaration a reality for everyone who has been born, free and equal, in dignity and rights.

(Photo: IntLawGrrls’ Eleanor, in her new home at our Dean Rusk International Law Center)

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.

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.

torturereportThis week has marked the 66th anniversaries of 2 watersheds: on Tuesday, the U.N. General Assembly’s adoption of the 1948 Convention for the Prevention and Punishment of the Crime of Genocide, and on Wednesday, the same assembly’s adoption of the 1948 Universal Declaration of Human Rights. Together, they form 2 essential pillars of post-World War II human rights and human security.

This week also marked the release, on Tuesday, of the 524-page executive summary of the Senate Select Committee on Intelligence Committee Study of the Central Intelligence Agency’s Detention and Interrogation Programa study that, in full, spans 6,000 pages.

I was honored by an invitation to contribute my thoughts on the release of this so-called Torture Report to The New York Times‘ online Room for Debate forum, and so on Tuesday published an op-ed entitled “Officials Must Be Held Responsible for Torture.” Joining me in this forum were Hina Shamsi of the American Civil Liberties Union, Danielle Pletka of the American Enterprise Institute, Georgetown Law Professor David Luban, and Texas Law Professor Robert Chesney.

My own op-ed referred to structures of accountability common in the international arena; that is, truth commissions or commissions of inquiry. In this context, I saw the committee report as a step toward establishment of an historical record, yet advocated the pursuit of two additional pillars of accountability: a comprehensive analysis of aimed at reforming laws and institutions that permitted torture to occur, and Department of Justice investigation of the matter, with prosecutions to follow as appropriate. With regard to the latter, I wrote:

‘And those prosecutions must occur in courts of the United States. If they do not, indictments of Americans by other countries, or by international tribunals, must be expected.’

As a consequence of that op-ed, yesterday I joined American University Law Professor Steve Vladeck and Security Studies Professor Sebastian Gorka of the National Defense University, on a live segment of the Al Jazeera English program “Inside Story,” hosted by Ray Suarez. No public link’s available; suffice it to say that the spirited discussion included my reiteration of the need for 3-pillar accountability, as indicated below:

800px-Koror_JailWhile most of us Stateside were making ready for last week’s Thanksgiving holiday, an overseas American was issuing a remarkable ruling against solitary confinement conditions in the South Pacific island Republic of Palau.

The November 25 order captioned In the Matter of McClain Angelino for a Writ of Habeas Corpus granted the sought-after writ. What is more, the ruling, by Associate Justice Ashby Pate, condemned the entire solitary confinement system in Palau’s Koror Jail. (photo credit) The order concluded:

‘Although the Court recognizes that its particular jurisdiction here is confined within the four corners of this particular Petitioner’s Emergency Application for Writ of Habeas Corpus, the Court strongly urges and recommends the Director of the Bureau of Public Safety, the Warden of the Koror Jail, and all those acting on their behalf, to immediately CEASE AND DESIST from the use of the solitary confinement quarters FOR ANY REASON, until such time as the facility is equipped to be operated in a humane and constitutional fashion and reviewed by a competent constitutional authority….’

Palau was a U.S. trustee state in the post-World War II period. Since achieving independence in the mid-1990s, the Republic of Palau has maintained 1 U.S. appointee among the 4 members of its the Palau Supreme Court. Pate has served in that capacity for about 2 years; I met when he spoke here at Georgia Law shortly before leaving his law practice in Birmingham, Alabama, to take up the post.

The case to which Pate was assigned as trial judge, Angelino, arose out of a complaint filed by petitioner, “a 19-year-old male” who “could easily pass for … 13 or 14” — a “child,” as the ruling calls him, “at most 5’3 tall and .. at most 120 pounds.” The petitioner had “been incarcerated off and on at least since he was 14 years old for various assaults and burglaries, as well as at least two unsuccessful escape attempts,” and had psychiatric problems that an expert witness said might’ve been exacerbated by conditions of prolonged solitary confinement.

To test petitioner’s claims, Justice Pate conducted a site visit. He pulls no punches in his 1st-person description of solitary (used, as he explains, because the jail is so old that even young, weak, tiny prisoners like petitioner can otherwise escape pretty much at will):

‘…I was in a room of near total darkness, illuminated only by the diffuse light coming from the open door behind us. There was no light bulb in the only exposed and broken socket set in the ten-foot ceiling, and the hard concrete floor was strewn with trash, what appeared to be broken glass, dank wet magazine pages, and soiled clothes. The stench of urine and feces was overpowering. There was no sink, no toilet, and no ventilation other than a small grated opening in the iron door, no bed or bedding, no light, and no drain.
‘…As the door closed, the heat and the stench combined were so overwhelming that I had to resist the urge to physically be sick. After the door closed, at least eighty-percent of the cell was in total darkness, and only a pale column of diffuse light came in through the narrow grating in the iron door, and that was only because the door to the outside remained ajar as a result of our visit.
‘…The sounds from the outside, prisoners murmuring and clanging doors, weirdly reverberated in the confined space, as they would in an echo chamber. The effect was a disorienting combination of utter sensory deprivation, at least with respect to vision and touch, coupled with a nauseating sensory overload of putrid smell and booming sound. After approximately one minute, I asked to be released.’

Pate’s ruling declared the conditions of confinement violative of Article IV § 10 of the Palau Constitution, which states:

‘Torture, cruel, inhumane or degrading treatment or punishment, and excessive fines are prohibited.’

Citing Palau case law, Pate found as the source for that prohibition the 1948 Universal Declaration of Human Rights, and so examined international human rights law. Mentioned were, inter alia, customary international law, a 2011 U.N. report, U.N. Standard Minimum Rules for the Treatment of Prisoners, commentary by the U.N. Committee Against Torture, and jurisprudence of the European and Inter-American human rights courts. His bottom line:

‘[T]he conditions in the solitary confinement quarters of the Koror Jail fail to meet even the minimum standards of internationally recognized human decency, and … flagrantly violate Petitioner’s constitutional and human rights.’

The order is an impressive national-court application of international human rights norms. Look forward to learning more of the state’s response to this condemnation of its incarceration practices.

un_members_flagsAs it does each year while the U.N. General Assembly’s meeting, the United Nations hosted a 5-day “Treaty Event” aimed at encouraging states to consent to be bound to a range of international conventions. (Previous posts here and here; photo credit) The big news was the boost this gave to the 2013 Arms Trade Treaty; as posted, it’s now set to enter into force on Christmas Eve. Also worth mentioning are joinders to other treaties related to peace, accountability, security, to children, and more generally to human rights. Selected joinders below; the complete record of Treaty Event activities is available here.

Peace, security, accountability

► 2010 Amendments on the crime of aggression to the Rome Statute of the International Criminal Court: Latvia, Poland, and Spain ratified, bringing the total number of adherents to 18. Neither the United States nor any of the 5 permanent members of the U.N. Security Council is among them. As detailed in posts here and here, these amendments cannot take effect any earlier than 2017, and then only if 30 states have accepted and a further vote has been taken. This year and last, tweets from the Crime of Aggression project have named numerous other countries said to be working toward ratification: Argentina, Australia, Brazil, Chile, the Czech Republic, Finland, Georgia, Macedonia, New Zealand, Romania, and Switzerland. If all join, the amendments would be 1 shy of the minimum required.

► 2010 Amendment to Article 8 of the Rome Statute of the International Criminal Court: Latvia, Poland, and Spain likewise ratified this treaty, which would enumerate as crimes in non-international armed conflict certain acts now prohibited only with respect to international armed conflict. The total number of adherent now stands at 21. The treaty entered into force as to some states as early as 2012. Neither the United States nor any of the 5 permanent members of the U.N. Security Council has approved these amendments.

► 1984 Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment: Eritrea acceded, bringing to 156 the total number of parties – among them, the United States and, indeed, all 5 permanent members of the U.N. Security Council.

► 2006 International Convention for the Protection of All Persons from Enforced Disappearance: Angola signed this treaty, which entered into force in 2010. It now has 94 signatories and 43 parties. Of the Security Council’s 5 permanent members, France is a state party, and the only state either to have signed nor ratified.

Treaties relating specifically to children

unicef_children► 2000 Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict: Guinea-Bissau ratified this treaty, which entered into force in 2002. That brings to 157 the total number of parties; among them, both nonmember states of the United Nations, the Holy See and the State of Palestine. The United States and, indeed, all 5 permanent members of the U.N. Security Council are states parties to this treaty.

► 2011 Optional Protocol to the Convention on the Rights of the Child on a communications procedure: Andorra, Ireland, and Monaco joined this treaty, which allows children to file complaints with the U.N. Committee on the Rights of the Child. That brings the total number of states parties to 14. The treaty entered into force in April of this year. Neither the United States nor any of the 5 permanent members of the U.N. Security Council has either signed or ratified this treaty.

► 2000 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime: Eritrea acceded to this treaty, which entered into force in 2003. The treaty has 163 parties, including the United States and, indeed, all 5 permanent members of the Security Council.

Human Rights

dis► 2006 Convention on the Rights of Persons with Disabilities: Guinea-Bissau ratified and Samoa signed this treaty, which entered into force in 2008. It now has 151 parties and 159 signatories. Four of the Security Council’s permanent members are states parties; the 5th, the United States has signed but not ratified. The U.S. Senate refused to give the requisite 2/3 approval in 2012, and just a few weeks ago, Republicans blocked a new effort to win the Senate’s advice and consent. (Prior posts)

► 2006 Optional Protocol to the Convention on the Rights of Persons with Disabilities: Denmark acceded to this treaty, which allows individuals to file complaints with the U.N. Committee on the Rights of Persons with Disabilities. That brings the total number of states parties to 85. The treaty entered into force in 2008. Of the Security Council’s 5 permanent members, France and Britain are states parties; the other 3 have neither signed nor ratified.

schabas3

Readers no doubt are well aware that in July the U.N. Human Rights Council resolved to set up

an independent, international commission of inquiry to investigate all violations of international humanitarian law and international human rights law in the Occupied Palestinian Territory.

Soon after, the Council’s President, Ambassador Baudelaire Ndong Ella of Gabon, announced appointments to the Gaza Commission: as finally constituted, the commission comprises a chair, Professor William A. Schabas of Canada, who holds academic posts at inter alia London’s Middlesex Law and the Netherlands’ Leiden Law, along with 2 members: Dr. Doudou Diène of Senegal, who has served in the past as the United Nations’ Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance, and also as its Independent Expert on the situation of human rights in Côte d’Ivoire; and Mary McGowan Davis of the United States, formerly a state trial judge and federal prosecutor in New York.

The appointment of Schabas, my longtime colleague, was met with astounding commentary from some sectors. In the 9-minute video pictured above and available here – an interview broadcast yesterday on CNN – Schabas responds to that critique. He further outlines the work of the commission going forward, as well as its potential interrelation with the work of the International Criminal Court.

megVery seldom (read never) do I take part in online campaigns, but today I am compelled to make an exception.

A middle school teacher here in Athens, Georgia, has achieved the amazing feat of winning a Fulbright Distinguished Award in Teaching, 1 of only 43 awarded this year in the entire country. The award will allow her to spend the fall semester in  England, where she plans to enrich her already considerable knowledge about the Holocaust, with a focus on women’s roles as victims and perpetrators.

She is Meghan McNeeley (above), who’s taught at Clarke Middle School since 2000. Her languafrnakge arts class introduces 8th graders to the Holocaust through study of Anne Frank: The Diary of a Young Girl  (prior posts) – study that includes not only reading of the iconic book, but Q&A on the context in which it occurred, as well as students’ preparation of personal timelines comparing what Frank was doing at various ages to their own achievement at those same age benchmarks. Her style, on this and other assignments such as the annual Elizabethan Fair, is one to which my own son responded with fervor when she taught him a few years back. He’s just one of many students whom she’s inspired to become writers.

Ms. McNeeley’s work in this area includes visits to Auschwitz and service as a Teacher Fellow at the U.S. Holocaust Memorial Museum.

The use of Diary to acquaint students with profound issues of peace and war, human rights and human security deserves support – support that Ms. McNeeley now needs. The Fulbright award covers some of her expenses, but she will have to forgo her schoolteacher’s salary for the semester, and so she’s seeking Go Fund Me contributions to make up the shortfall. You can donate here if you’re so inclined.

nottThanks to Nottingham Law Professor Aoife Nolan, I’ve learned that the law school’s Human Rights Law Centre is welcoming applications for its Summer School on the Rights of the Child, set for June 23-27, 2014.

To be discussed are regional and international legal regimes and institutions concerned with the rights of children. Topics will include violence against children, child participation, child poverty, children in conflict, and child rights monitoring and advocacy. The full program lists a host of expert speakers, not least among them Dr. Najat Maalla M’jid, appointed in 2008 as the United Nations’ Special Rapporteur on the Sale of Children, Child Prostitution and Child Pornography. (Her recent report, numbered A/HRC/25/48 and reflecting on the conclusion of her 6-year tenure, is here.)

Summer school details and registration here.