History of International Law

The Prosecution of Sexual Violence against Men in International Criminal Law

/ Maike Isaac / 2 Comments

International criminal law has been vital in fostering the understanding of sexual violence against women in armed conflict as a weapon of war that targets a woman’s role in society. In particular, the jurisprudence of the International Criminal Tribunal for the former Yugoslavia (ICTY) has been crucial in establishing that the rape of women can constitute a war crime, a violation of the laws and customs of war, and a crime against humanity. While numerous women were in fact sexually abused during the Yugoslav Wars, men also became victims of sexual violence in detention camps and police stations. Yet, their victimization has gone largely unacknowledged.

The examination of the definition of rape used by the ICTY reveals a major impediment for the full visibility of male victimhood through sexual violence. One of the most frequent forms of sexual violence against men in armed in conflict, two men being forced to sexually penetrate each other, does not fit into the ICTY definition of rape. This shortcoming should be addressed and corrected in the future by the International Criminal Court (ICC) so that definitions of crimes of a sexual nature are truly gender inclusive.

Literally, the ICTY definition of rape is formulated in a gender-neutral manner. For an act to constitute rape, it has to involve the sexual penetration of the vagina, the anus or the mouth of the victim by the penis or another object used by the perpetrator. In the context of sexual violence against men, it is usually not the element of sexual penetration that impedes the categorization of the experiences of male victims of sexual violence as rape. Rather, it is the lack of the physical involvement of the perpetrator in the act that is in conflict with the ICTY definition of the offence.

In the ten cases featuring sexual violence against men that were prosecuted at the ICTY (Tadić, Mucić et al., Todorović, Sikirica et al. and Mejakić et al., Stakić, Simić et al., Česić, Brđanin, Krajišnik, and Martić), the perpetrators did not themselves physically assault other men but rather forced male detainees to perform sexual acts on each other (Sandesh Sivakumaran coined the term ‘enforced rape’ to describe this form of sexual abuse). In eight out of ten cases, evidence was heard that male detainees were forced to perform fellatio on each other. Unquestionably, acts of fellatio involve sexual penetration of the mouth. However, as the perpetrator was in those cases not physically involved, those scenarios did not meet the ICTY definition of rape. Only in Simić et al. (Prosecutor v. Simić et al. Trial Judgement, IT-95-9-T, 17 October 2003, § 728) and Sikirica et al. (Prosecutor v. Sikirica et al. Indictment (Second Amended), IT-95-8-PT, 3 January 2001, § 46), where objects were forced into the anus of a detainee, would the sexual assault have been within the scope of the definition of rape. Continue reading →

Casas de la Memoria to Conviction?

/ Rachel E. Lopez

From “casas de la memoria” in Guatemala, Peru, and El Salvador to an upcoming international colloquium in Spain entitled “From Past to Future: Memory and the Process of Transition,” the development of collective memory – an enduring and shared memory of events – is taking center stage as one path toward healing the wounds of a tattered national conscience and preventing the recurrence of mass atrocities. But to what extent is collective memory compatible with judicial systems, which tend to be very individual-centered?

An annual online symposium co-hosted by Opinio Juris and NYU Journal of International Law and Politics (JILP) that went live this morning is exploring this very question. The focus of the symposium is The (Re)collection of Memory After Mass Atrocity and the Dilemma for Transnational Justice, my article that was recently published in Volume 47, Number 4, of NYU JILP.

The impetus for this article arises from the challenges I encountered in working with survivors of mass atrocity. The indivisibility of their memory struck me, as did the healing and bonds it generated. As I began to examine the literature on collective memory, I realized that I was not alone in this observation. Scholars from disciplines ranging from sociology to clinical psychology have written about and documented collective memory and its cathartic effects.

My article explores the tension between the preservation of collective memory and another impulse that follows mass atrocity: the desire for justice. Because many judicial systems are heavily influenced by notions of individualism, they are by design ill equipped to accommodate collective memory. Traditional rules of evidence and professional conduct often exhibit a single-minded focus on individual representation by replicating models that assume one client who autonomously makes legal decisions without consulting his or her community. Bound by these rules, attorneys must disrupt or even dismantle collective memory, thereby retraumatizing their clients.

In this article, I offer an alternative. I believe that human rights attorneys should instead endeavor to preserve and promote collective memory. For that reason, I urge a fundamental rethinking of the law’s preference for individual memory in the context of transitional justice. I believe that the inclusion of collective memory would better serve the goals of transitional justice by facilitating a more complete understanding of the collective harms of mass atrocity and possibly advancing reconciliation.

Today and tomorrow, Opinio Juris will feature comments on my article from four distinguished scholars:

• Mark A. Drumbl is the Class of 1975 Alumni Professor of Law and Director of the Transnational Law Institute at Washington & Lee University.
• Naomi Roht-Arriaza is Distinguished Professor of Law, University of California, Hastings College of Law (and a fellow IntLawGrrl! –Ed.).
• Ruti Teitel is Ernst C. Stiefel Professor of Comparative Law at New York Law School.
• Johan D. van der Vyver is the I.T. Cohen Professor of International Law and Human Rights, Emory University School of Law.

Tomorrow, I will respond to their comments. I welcome you to join the conversation by posting your thoughts here.

Trade & Development, Part II

/ Andrea M. Ewart, Esq. / Leave a comment

I’m usually skeptical of explanations for continued poverty in the developing world that point to the history of colonialism. Note, I’m not talking about the continued gap in economic development between developed and developing countries. I’m talking about the existence of deep pockets of extreme poverty after decades of political independence.

As we discussed in our recent post, Trade & Development, one pervasive, and corrosive, explanation for the poverty is corruption. Yet, I find this only a partial explanation. How is it possible to look at another human being and deny their right to the basics of life just to make more money?

In the context of Africa, one remnant of colonial rule may remain pertinent in our search for answers.

Colonial powers carved out their territories ignoring existing ethnograpical and cultural realities. The newly independent nations signed treaties in which they agreed to respect these political boundaries handed down to them. Yet, we know that the cultural memory lives on outside of these country borders.

For example: Just six years after political independence, the Muslim Hausas in northern Nigeria seceded and created the Republic of Biafra. A bloody civil war ended with the surrender to Nigeria by Biafra. Fifty years later the separatist movement continues. The religious and cultural tensions which led to the creation of Bangladesh (predominantly Bengali-speaking Muslim), Pakistan (Muslim) and India (Hindu and Sikhs) out of what had been British India survive today in the conflict over Kashmir. In Europe, Yugoslavia’s borders did not survive the death of President Tito. After several wars, it has been replaced by seven (7) countries organized along religious and ethnic lines.

Partition of Africa

Modern-day borders by colonial legacy (royal blue - France; pink - Britain; purple - Portugal; yellow -Belgium; green - Italy; light blue - Germany). Courtesy of Wikipedia.

Modern-day borders by colonial legacy (royal blue – France; pink – Britain; purple – Portugal; yellow -Belgium; green – Italy; light blue – Germany). Courtesy of Wikipedia.

At the Berlin Conference (1884-1885), the major colonial powers cut lines across the African interior that grouped together scores and dozens of ethnic groups. These lines also split up existing boundaries.

To use Angola as an example: For over 300 years prior to the arrival of the Europeans, the Bakongo (the Kongo people), had been united under the rule of the Kingdom of Kongo, one of the most important civilizations to emerge in Africa. Today, these several million people live in the Democratic Republic of the Congo, Congo-Brazzaville, and Angola. From the time of its founding by Ne Lukeni Kia Nzinga until its destruction in 1665 by the Portuguese, the Kingdom of Kongo existed as an organized, stable, politically centralized society. Left alone, this Kingdom might well have evolved intrinsically into a modern-day state. This process was interrupted by the partition of its territory among the European colonial powers.

Modern Consequences

Angola’s population today is divided ethnically into three main groups – the Ovimbundu (37% of the population), the Mbundu (25%), and the Bakongo (13%). The remaining 25% include scores of other ethnic groups, both large and small.

The decades-long war fought by Angola for political independence from Portugal reflected these ethnic lines within the country. Three liberation groups simultaneously fought the Portuguese and each other. The Movimento Popular de Libertação de Angola (MPLA) is predominantly Mbundu (what used to be the Ndongo Kingdom). União Nacional para a Independência Total de Angola (UNITA) is predominantly Ovimbundu (Bailundo Kingdom). Frente Nacional de Libertação de Angola (FNLA) is predominantly Bakongo (Kingdom of Kongo).

The winners were the MPLA, which has ruled Angola since its political independence. Over time, writes Assis Malaquias in Ethnicity and Conflict in Angola: Prospects for Reconciliation, the additional factors present in the liberation struggle – class and ideology — have diminished, leaving intact the ethnic divide. Effectively, the MPLA rules Angola in the interests of the Mbundu people, comprising at best about one-quarter of the population. The resources of the state have become “the property” of the Mbundu, rather than of the citizens of Angola.

In Angola and much of Africa, the arbitrary colonial divisions have “politicized” ethnicity (Assis Malaquias).

As long as this reality remains essentially ignored by the West, the search for solutions to end the corruption that diverts a country’s resources into the hands of a few, and the poverty this practice creates, is likely to remain elusive.

Secrecy in international agreements

/ Azin Tadjdini / 2 Comments

The recent P5+1 negotiations and the agreements reached so far have sparked much discussion and letter-writing. Part of this has to do with the obscurity of the negotiations and the simple reason that the few texts that have been made public are unlikely to present the totality of what the negotiations actually deal with apart from the nuclear issue. What is the deal with secrecy in international agreements?

The first reference in English to the Sykes-Picot agreement, by The Manchester Guardian 26 November 1917

The first reference in English to the Sykes-Picot agreement, by The Manchester Guardian 26 November 1917

Few things happen without a reason. Sometimes, what seems to be the apparent reason is only a piece, sometimes not even the right one, of a bigger picture. This includes international relations and the way in which they influence national, regional, and international developments. Part of what makes it difficult to dissect these developments, from the outside, is the use of secret agreements in international relations. Since they are secret, sometimes modestly referred to as “confidential”, such documents are released only after 20 years, 30 years, 50 years or whatever the confidentiality norm is in a country. Before World War I, the use of secret agreements or treaties, was quite common, typically dealing with alliances during war  and division of spheres of influence. The Treaty of Dover, the Sykes-Picot Agreement, the Molotov-Ribbentrop Pact, the Quadripartite Agreement and the Hoare-Laval Pact are only some of the many significant secret agreements of the past with major geopolitical impacts that have shaped our common history. While there can be good reasons for keeping certain agreements secret, secret international agreements are at the same time problematic from the perspective of sovereignty, democracy, rule of law, and an open society. They are also prohibited under international law.

Secret treaties under international law
At the Treaty of Versailles, marking an end to World War I, Woodrow Wilson proposed to include a prohibition against secret treaties by proposing that that all treaties should be made through the League of Nations. This proposal did not make it to the Treaty of Versailles, but was subsequently included in Article 18 of the Covenant of the League of Nations, which provided that “every treaty or international engagement entered into hereafter by any Member of the League shall be forthwith registered with the Secretariat and shall as soon as possible be published by it. No such treaty or international engagement shall be binding until so registered.” The new rule had become, in other words, publicness of international agreements, through a requirement of registration. This did not, to nobody’s surprise, end the use of secret agreements in practice, but for the first time such agreements were prohibited on a formal level.
The UN Charter continues this policy in chapter XVI. Article 102 provides that:
“ 1. Every treaty and every international agreement entered into by any Member of the United Nations after the present Charter comes into force shall as soon as possible be registered with the Secretariat and published by it.
2. No party to any such treaty or international agreement which has not been registered in accordance with the provisions of paragraph 1 of this Article may invoke that treaty or agreement before any organ of the United Nations. “
Article 103 establishes the UN Charter as the superior law by stating that the obligations under the charter prevail in case of conflict the obligations under another international agreement.

The continued use of secret international agreements
Despite the clear prohibition under international law, secret international agreements continue in practice. For example, The United Kingdom- United States of America Agreement (UKUSA) between the UK, the US, Canada, Australia, New Zealand,and with several third parties subsequently joining, was entered into in 1946, but was not disclosed to the public until 2005 and its full text was not made public until 2010.
Because they are secret, contemporary secret agreements are hard to identify and such identifications often become mere speculations, giving rise to a variety of juicy conspiracy theories. However, sometimes such agreements are fairly easy to identify through a two-step process. The first is that there is knowledge that an agreement has been entered into. Second, the content of the agreement has not been made public. In such a case it is difficult to reach any other conclusion than that the agreement is secret.

A recent example of such a case is the P5+1 agreement with Iran. There is knowledge about an agreement, yet its content has not been made public. It has been referred to as the “Nuclear Agreement”, obviously dealing with some aspects of Iran’s nuclear programme, and indeed some of the obligations with respect to the nuclear issue have been referred to by the parties and an interim agreement has been published. Yet considering the geopolitical context of the agreement as well as the parties to it, it is highly probable that the P5+1 negotiations deals with broader issues than the nuclear issue. But we cannot know whether the terms of the agreement are in accordance with international law because the text has not been made public.

The context for the agreement- the location, the parties, the interests- bears resemblance to that of an agreement entered into almost a century ago, also that one a secret one. Whether or not the P5+1 agreement is the 21st century version of Sykes-Picot is impossible to know, because the content of the text, like that of Sykes-Picot (which became public in 1917, after the Bolsheviks came to power in Russia), has not been made public. Would it make a difference? That is the central problem of secret agreements. It is impossible to know since they are secret.

An Argument for Construction of Common TWAIL-Based Identity in East and Southeast Asia

/ Arpita Goswami / 1 Comment

The Unequal Treaties weave the narrative of state transformation and the deconstruction of the Sino-centric regional order in the Southeast Asia. A chain of empires and kingdoms—extending from the Korean plateau in the northeast, Japan, the Qing Empire, and the Kingdom of Siam in the southeast, were faced with relentless diplomatic pressure under the shadow of gunboats, and coerced into entering into biased and one-sided treaties. Across the region, these treaties set out a pattern of relations, which formed the infrastructure of a semi-colonial political system. Not only the unequal treaties forced the semi-colonial states to reform and restructure themselves to suit the needs of the Western powers, they also provided a new institutional framework for international politics in the region. The post-Westphalia concepts of sovereignty and equality displaced the traditional hierarchy-based system of inter-state relations in the region. As the nineteenth century turned over, the Western powers systematically fractured the former Sino-centric regional structure by carving out spheres of influence, and left it littered with bitter political disputes and legal anomalies that continue to this day.

However, a lesson in history is not where this discourse on Unequal Treaties ought to stop. This is so particularly because the current international legal regime is still frequently used to legitimize and sustain the unequal structures and processes that have manifested themselves in the growing North-South divide. The relationship between ‘state’ and ‘international law’ is being reconstituted to the distinct disadvantage of the Third World and its people. As in the past two centuries, the policies and laws of the Third World states are still being dictated by the international institutions that are conspicuously controlled by the ‘First World’. It is not in vacuum that the terms like ‘neo-colonialism’ or ‘neo-imperialism’ have been coined. Many of the Southeast Asian States forming a part of the Third World, have witnessed debilitating economic meltdowns and severe political interferences because of such a structure of the international order that infiltrates and superimposes the interests of a transnational ruling elite on the developing states.

It is at this juncture that the ‘Third World Approach to International Law’ (TWAIL) be taken into serious consideration. TWAIL – a critical school of international legal scholarship — is an intellectual and political movement formed by a group of states, which are, although geographically, culturally, politically, and economically diverse, bound by a shared colonial past. It is a coming together of such States to build a common platform to consolidate the sources of international law in order to articulate and address the material and ethical concerns of the region and its people. TWAIL seeks to pierce the partial blindness induced by the structural determinism of the omnipresent and penetrative international legal regime, which has in turn prevented a holistic critique of the regressive international practices, or mapping out alternative futures. This approach has come a long way from its first generation foundational phase to inter-state forums being set up on the basis of their common history and shared goals. TWAIL may not be dismissed as a mere theoretical proposition or a wishful radical transformation, as it proves its practical and real-life functionality. A most recent and a gem of an example is the setting up of the New Development Bank by the BRICS States. By establishing this new multilateral bank, the BRICS States have decentralized the power previously held by IMF, and the World Bank, which were always complained to be too American or Eurocentric. The success of the BRICS Bank is yet to be assessed in coming years, but the establishment of such an institution, which may mark the emergence of a new financial order, by a handful of developing states, is a laudatory act in itself. 

Witnessing the continuing imposition of structural inequality in Southeast Asia, affected through partisan application of International Law, the central proposition calls for construction a common TWAIL-based identity for the region. Drawing largely from the Constructivist theories in international relations, it can be plausibly argued that construction of an identity based on doctrinal epochs of TWAIL will create an intersubjective system based upon shared history, mutual understanding and social knowledge, and common understanding. This will be instrumental in helping the Southeast Asian states to positively identify their interests with regard to each other in larger international forums. Once this shared identity is settled into the consciousness of the States in the region, it can be evolved into  a political platform to gain leverage in international negotiations on the issues of common regional concern, and for establishment of new institutions and regional orders, howsoever the need be.

Hopefully, by reclaiming the narrative and turning over the rhetoric through TWAIL, this long continuing discourse of the unequal treaties will come to an end in this era.

Thanks to BASIL, a remembrance of Society’s 1st African American president

/ Diane Marie Amann / Leave a comment

fergusonCHICAGO – Within the rich program of the just-concluded American Society of International Law Midyear Meeting was a discovery. A discovery for me, at least, regarding an important milestone in ASIL’s century-plus history.

I have written before about women who blazed trails in the Society since its founding in 1906. Among several notables is Dr. Alona Evans, the Wellesley political science professor (and mentor of then-student Hillary Rodham) who was elected ASIL’s first woman president in 1980. Evans, who died in office the same year, would be followed by other women: Georgetown Law professor Edith Brown Weiss (1994-1996) Anne-Marie Slaughter (2002-2004), now president of the New America thinktank, Freshfields partner Lucy Reed (2008-2010), and, since the spring of this year, Columbia Law Professor Lori Fisler Damrosch.

I’ve also written about Goler Teal Butcher, Howard Law professor, U.S. State Department diplomat, and Amnesty International activist. Butcher, an African American woman, was friend, mentor, and inspiration to many; indeed, the Society named its human rights medal after her. (See here and here.)

I have not written about the Society’s first (and only) African American president, however. There is a simple reason for that omission: though I have seen the full list of past ASIL presidents, I did not learn until this ASIL’s Midyear that one of them, C. Clyde Ferguson Jr., was a person of African American heritage. He is pictured at top; photo credit.

Credit for my discovery belongs to Blacks in the American Society of International Law – BASIL – a task force that held its formative session at the Chicago meeting. The first component of President Damrosch’s inclusion initiative, BASIL is designed to affirm and expand the tradition of black international lawyers, jurists and academics in the United States. It is co-chaired by ASIL Honorary President Gabrielle Kirk McDonald, whose career includes service as a judge on the U.S. District Court, the International Criminal Tribunal for the former Yugoslavia, and the Iran-U.S. Claims Tribunal, along with Adrien K. Wing, the Bessie Dutton Murray Professor of Law at the University of Iowa. I’m honored to serve as a member of this task force, along with Elizabeth “Betsy” Andersen, Angela Banks, Bartram Brown, Donald Francis Donovan, Jeremy Levitt, Makau Mutua, Natalie Reid, Henry Richardson, and Edith Brown Weiss.

As preparation for our inaugural session, BASIL co-chairs distributed, among other things, a 1994 essay written in memory of Ferguson. Born to a pastor’s family during the Depression, he was barred from attending college in his home state on account of race. Ferguson was graduated cum laude from Harvard Law School and hired as that school’s first African American law professor – for a long time, according to the essay, he was Harvard Law’s “only full-time minority professor.” A human rights scholar, activist, and diplomat, Ferguson served inter alia as dean of Howard University School of Law and as U.S. Ambassador to Uganda. Professor Butcher and he frequently collaborated on issues related to southern Africa.

asil_logoElected ASIL’s president in 1978, Ferguson was succeeded two years later by Professor Evans. The fact that the Society chose two pathbreaking leaders in a row is noteworthy. Indeed, it calls out for a legal historian to plumb this pivotal moment in ASIL’s history. One hopes that BASIL, alone or in conjunction with WILIG, the Society’s Women in International Law Interest Group, will answer that call.

(Cross-posted from Diane Marie Amann)

11th Annaual Conference of the European Society of International Law “The Judicialization of International Law- A Mixed Blessing?” Call for Proposals

/ Cecilia Marcela Bailliet / Leave a comment

Call for ProposalsThe 11th Annual Conference of the European Society of International Law will take place in Oslo, Norway. It is hosted by the PluriCourts Centre for the Study of the Legitimate Roles of the Judiciary in the Global Order, University of Oslo.

The Organising Committee of the conference invites all scholars (including PhD students) to submit proposals for papers to be presented at the conference, as well as proposals for a full panel of speakers for a single agora.
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General guidelines

The purpose of the agorae is to share cutting-edge research in specific areas of international law, to stimulate debate, and to foster discussion between participants. ESIL Interest Groups are particularly welcome to propose agorae. Innovative ideas for conducting a panel (e.g. round table) are also encouraged.

Proposals for papers or agorae can be submitted either in English or French.

Proposal should correspond to the overall conference theme and can relate to (but need not be limited to) the following, partly overlapping, topics:
Problems and perspectives of special regional courts, or problems affecting the development of the international judicial function (e.g. access to international justice, judicial review of political acts, revision of an international judgments by a court of appeal, etc.)

How do courts matter for the substance of the law in particular subject-areas?
The place of international judgments in the doctrine of sources
Do international courts and tribunals have a function in relation to economic, social and cultural rights?
An ‘International Tort Court’ for multinational corporations?
A World Court of Human Rights?
A World Court of International Humanitarian Law?
The future of the International Tribunal for the Law of the Sea (ITLOS)
Professional ethics for judges
International courts and tribunals in new areas, such as international security; a more fair global resource allocation; protecting social rights; improving global health; more responsible multinational corporations; dealing with transnational internet problems?
Alternative dispute resolution mechanisms
The future of the International Criminal Court
Reform of regional human rights courts and global human rights treaty bodies
The future of investment tribunals
The WTO and regional trade tribunals
The role of the ICJ
Arbitration vs courts
Sovereign debt default and international dispute settlement mechanisms
Hybrid courts and their possible use as a form of international justice (piracy, environmental damages, compensations, etc.)
Courts and third world/postcolonial approaches and feminist theory
Historical, economic, sociological, etc. approaches to international courts
Implementation of international judgments in national legal orders

TimelineThe deadline for the submission of abstracts is 31 January 2015
Successful applicants will be informed by 31 March 2015
The deadline for the submission of the full papers is 1 July 2015
The conference begins on Thursday 10 September 2015 in the morning and ends on Saturday 12 September 2014 in the early afternoon
The deadline for the submission of final papers, to be included in a future conference publication or in the ESIL SSRN series, is 1 October 2015

Finances
All selected agora speakers will have to register for the conference. They will receive free registration, provided they are ESIL members. The organisation does not cover expenses for travelling and accommodation.

Publication
After the conference, ESIL provides the opportunity to publish papers in the ESIL SSRN Series and also plans to publish selected high-quality papers in a book series
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ESIL Young Scholar Prize
From 2015 onwards, ESIL will award the ESIL Young Scholar Prize at each Annual Conference; this is a prize for the best paper submitted to the conference by scholars at an early stage in their academic career. Early-career scholars are either PhD candidates or those who have had their oral defense no longer than 2 years prior to the submission of the abstract. Candidates for the prize have to be current ESIL members.

The Prize is sponsored by the law firm WilmerHale. Please indicate, when submitting an abstract, if you wish the submission to be considered for the ESIL Young Scholar Prize.
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For further information regarding the Submission of Agora or Paper Proposals see here

Papers presented in agorae should present innovative ideas, be unpublished at the moment of presentation, and be in an advanced stage of completion.

Abstracts will be reviewed by a selection committee. Joint submissions are possible, but, if selected, only one person may receive free registration to the conference.

Selection criteria are:
Originality and innovativeness of the work
Links to the conference theme
Geographical and gender balance
Only one abstract per author will be considered

Abstracts must not exceed 800 words.

Precipitating Politics Around The Revival of Prosecutions in Bangladesh

/ Beth Van Schaack / 2 Comments

This is part 3 of a three-part series on the Bangladesh International Crimes Tribunal.  Part 1 (overview) and 2 (deep history) are here and here, respectively.

Fast forward to the present day. Prosecuting local collaborators for crimes committed at Liberation emerged as a central campaign pledge of the Awami League and now-Prime Minister Sheikh Hasina Wajed during the 2008 elections when the Awami League “Grand Alliance” emerged triumphant. The law was not invoked until 2010 when authorities arrested four leading politicians from the rival Islamist political party, Jamaat-e-Islami. Jamaat-e-Islami had been banned from political participation following the 1971 war of independence, and its leaders went into exile in Pakistan. The ban was eventually lifted. The party revived, was mainstreamed, and eventually joined in multiparty alliances with, most prominently, the Bangladesh Nationalist Party (BNP). It is now the principal Islamist political party in Bangladesh and a key opponent to the majority Awami League. The most recent general elections were held on January 5, 2014. Jamaat-e-Islami was barred from participating, and the Bangladesh Nationalist Party (BNP) and other opposition parties chose to boycott the elections. As a result, 154 of 300 seats went uncontested, so Awami League candidates won by default. The rise of the Awami League, and the marginalization of any credible political opposition, has cleared the way for the government to launch targeted prosecutions against key political opponents under the 1973 Act.

Once prosecuting political opponents became policy, Parliament amended the 1973 Act several times to make it operational. The legislation, which mostly incorporates the Nuremberg/Tokyo definitions of the crimes and benefited from the assistance of international law experts, was quite forward leaning for its time in terms of substantive law. By today’s sensibilities, however, the legislation is outdated and does not reflect recent developments in the law occasioned by the work of the ad hoc criminal tribunals.

The real concerns, however, relate to a number of procedural infirmities contained in the statute itself and in amendments to the Constitution that deny procedural protections to individuals detained or prosecuted under the 1973 Act. For example, 1973 amendments to the Constitution protect the Act from legal attack. Notably, Article 47(3) states:

(3) Notwithstanding anything contained in this Constitution, no law nor any provision thereof providing for detention, prosecution or punishment of any person, who is a member of any armed or defence or auxiliary forces or who is a prisoner of war, for genocide, crimes against humanity or war crimes and other crimes under international law shall be deemed void or unlawful, or ever to have become void or unlawful, on the ground that such law or provision of any such law is inconsistent with, or repugnant to any of the provisions of this Constitution.

Article 47A also withdrew certain procedural rights from individuals subject to Article 47(3)—including the right to enjoy the protection of the law, the prohibition of ex post facto prosecutions, the right to a speedy and public trial, and the right to challenge the court’s jurisdiction.

The legislation itself invalidates additional rights, including the right against self-incrimination (the statute provides that defendants shall not be excused from answering any question on the ground that the response will incriminate the suspect). Long pre-trial detentions have led the U.N. Working Group on Arbitrary Detention to declare that several defendants hve been subjected to arbitrary detention in violation of international law, notably the ICCPR. In addition, idiosyncratic Rules of Procedure and Evidence govern the Tribunal, so any protections contained in the normal criminal procedure code, including rights of appeal, are inapplicable. For example, the law imposes an obligation on the Appellate Division of the Supreme Court to dispose of any BICT appeal within 60 days—a tall order given that no interlocutory appeals are allowed. In practice, although the accused ostensibly enjoy the right to counsel of their choice, the Bangladesh government and Bar Association have made it virtually impossible for outside counsel to adequately represent their clients by, among other things, restricting their travel to the country and their presence in interrogations. Several trials—including that of Abdul Kalam Azad, the first case to go to verdict—have proceeded in absentia. A U.S. citizen, Ashrafuzzaman Khan, and a U.K. subject, Chowdhury Mueen-Uddin, have also been sentenced to death in absentia for crimes against humanity. Such trials are not, per se, contrary to international law, but defendants must be given a right to a retrial if and when they are apprehended. No defendant in his right mind would appear voluntarily before a tribunal so stacked against him.

Among other retrograde elements, on February 17, 2013, the International Crimes (Tribunals) (Amendment) Act of 2013 amended the law again to allow for the prosecution of “organizations” for their role in the 1971 War of Liberation. (There is some talk that the law may need to be amended anew to enable the prosecution of “parties” in addition to “organizations” if it is to serve its intended purpose). This baldly political move is aimed directly at Jamaat-e-Islami, notwithstanding that its continuity with its liberation-era predecessor is questionable. After the BICT sentenced Abdul Quadar Mollah, the assistant secretary-general of Jamaat-e-Islami, to life imprisonment for crimes against humanity in February 2013, the Act was further amended to allow the prosecution to appeal a sentence or a verdict of acquittal. The amendments were made retroactive. On the prosecutor’s appeal, the Supreme Court converted Mollah’s sentence from life imprisonment to death, a final sentence that does not admit the right of judicial appeal. Despite calls on December 11, 2013, from U.S. Secretary of State John Kerry and United Nations Secretary General Ban Ki Moon to Sheikh Hasina herself, Mollah became the first BICT defendant to be executed. He was hanged on December 12, 2013 after a last minute stay of execution was lifted, on the eve of the upcoming Victory Day celebrations. Indeed, trials and appeals proceeded at a breakneck pace in 2013, apparently in an effort to achieve results in advance of the January 2014 elections.

The BICT has also been mired in corruption allegations. In December 2012, The Economist broke the story, based upon leaked emails and recorded Skype conversations, that a BICT judge had been seeking outside advice on how to rule from the Brussels-based director of the Bangladesh Centre for Genocide Studies, who was also apparently collaborating with the prosecution. The leaked correspondence suggest that the government was pressuring the judges to issue their judgments more quickly. The judge eventually resigned, but the BICT nonetheless responded with threatened contempt of court charges against The Economist’s journalists. Other journalists and media outlets that have been critical of the BICT have also been hit with contempt charges.

Individually, these infirmities are deeply troubling. Collectively, they fundamentally undermine the fairness of the proceedings, especially given that the death penalty is on the table.

The international community initially supported this effort at historical justice, given the longstanding impunity stemming from the war of independence. Human Rights Watch, for example, called the trials an important and long overdue step to achieve justice for victims. The United Nations Development Programme (UNDP) offered assistance, and the European Union passed resolutions supporting the trials. However, this support soon soured when it was clear that the process had been corrupted and was more political than legal.

The United States’ position toward the BICT has been a guarded one. While acknowledging the need to address the atrocities committed during the war, the United States has also called for proceedings to be free, fair, transparent, and consistent with international and domestic due process standards. The United States Ambassador-at-Large for War Crimes Issues, Stephen Rapp (my former boss), has visited Bangladesh five times (most recently in August 2014) in an effort to bring the proceedings better into line with international standards. Before the trials began, he wrote an extensive analysis of the original legislation, which was later leaked to the press, setting forth his concerns and suggestions for improvements. He was later criticized for offering his views, even though they had been solicited by Bangladesh. Some of these suggestions—including the recognition of res judicata and double jeopardy, the right to a fair and public hearing with counsel of the defendant’s choice, placing the burden of proof on the prosecution, and establishing a system of witness protection—were at least partially implemented. Others—having to do with interlocutory appeals, interrogation rights, disclosure obligations on the prosecution, and enabling the participation of foreign lawyers in court—were disregarded. Now that proceedings are fully underway, the prospects of genuine legal reform are dim. The goal now seems to be to keep the defendants alive.

And What of the Birangonas?

The suffering of Bangladesh’s rape victims continues. Indeed, these women were twice made the victim. The first breach of their rights and dignity occurred when they were subjected to mass rape on a staggering scale. Although we will never have accurate numbers, all accounts suggest that tens of thousands of women were systematically kidnapped, raped, and mutilated.  Many did not survive their ordeal.  Those who did suffered a second kind of assault in the aftermath of the war. Rather than being treated with compassion, given medical and psychological assistance, receiving reparations, or getting access to meaningful justice, many survivors were instead silenced, ostracized by their families, and treated as pariahs in their own communities. The only medical services on offer were makeshift abortion clinics staffed by experts who were flown in to conduct late-term abortions. Many “war babies” who were not aborted were put up for international adoption. For many women, the only tangible recognition they received for what they had suffered were the plaques eventually bestowed on them. Although labeled “Birangonas” (war heroines), this supposed honorific turned out to be little more than a cruel hypocrisy. Many survivors continue to live in poverty and shame.

The propaganda value of violence against women has long been recognized. There is now the risk that these women—who for years have been hidden away, ignored, ostracized or worse—will be injured a third time when their legitimate claims for justice will be used to justify a deeply illegitimate process.  They will be trotted out in support of the trials under the illusion that their stories matter. Once the victims have played their part in justifying a flawed process, they will be relegated back to the shadows once again. As criticism mounts about the BICT, Bangladesh’s Birangonas will come to realize that offering them the opportunity to achieve justice for what befell them was never the goal.

Go On! FASPE Legal Ethics Fellowship in Berlin, Krakow, and Oświęcim (Auschwitz)

/ Karen Hoffmann / Leave a comment

(Image credit: FASPE)

FASPE (Fellowships at Auschwitz for the Study of Professional Ethics), in collaboration with The Museum of Jewish Heritage—A Living Memorial to the Holocaust, is now accepting applications for a fellowship that uses the conduct of lawyers and judges during the Holocaust and in Nazi Germany as a launching point for an intensive two-week summer program on contemporary legal ethics. Fellowships include an all-expenses-paid trip from New York to Berlin, Krakow, and Oświęcim (Auschwitz) where students work with leading faculty to explore both legal history and the ethical issues facing practicing attorneys today. All program costs, including international and European travel, lodging, and food, are covered.

The 2015 FASPE Law program will run from May 24 to June 4.

The program is particularly targeted at students who intend to practice, whether in law firms, as prosecutors, as defense attorneys, or otherwise. All FASPE programs are non-denominational and candidates of all religious, ethnic, and cultural backgrounds are encouraged to apply. Completed applications must be received by January 6, 2015.

To apply or to learn more about FASPE, please visit: http://www.FASPE.info.

If you have any questions, please contact Thorin R. Tritter, Managing Director of FASPE, at ttritter@FASPE.info.

Zainab Bangura, 2014 Katherine B. Fite Lecture

/ Beth Van Schaack / 1 Comment

I was honored last week to introduce this year’s Katherine B. Fite lecture at the annual IHL Dialogs hosted by the lovely Chautauqua Institution (the 2014 program is here). We’ve covered prior Dialogs on these pages (see here and here).  Fite (1905-1989) was a career State Department lawyer. Among her many achievements, she worked in London right after World War II on detail from the State Department, aiding Justice Robert H. Jackson and others in negotiating and drafting the Charter of the International Military Tribunal. She then decamped to Nuremberg where she helped prepare the case against the indicted organizations. The Jackson Center’s John Q. Barrett and IntLawGrrl founder Diane Marie Amann have written wonderful biographical notes about Fite. (Diane’s talk on Fite at a previous IHL Dialog is available here).  This lecture in Fite’s honor has become a featured event at the IHL Dialogs. In choosing each year’s Fite lecture recipient, a committee of contributors to IntLawGrrls strives to honor trail-blazing women who embody Fite’s spirit, commitment to justice, brilliance, and independence.  Prior recipients include Diane Amann, Leila Sadat, and Karima Bennoune.

This year’s Fite speaker, Ms. Zainab Bangura—the United Nations Secretary General’s Special Representative on Sexual Violence in Conflict, embodies Fite’s signature qualities.  (The full text of Bangura’s speech is available here).  Ms. Bangura grew up in the heartland of Sierra Leone, the child of a Muslim cleric and a mother who insisted that her daughter enjoy an education even though she herself could not read or write. Although she originally pursued a career in the insurance industry, the commencement of the war in Sierra Leone inspired her to focus on advocating for peace and democracy. SRSG Bangura thus began her career in public service as founder of

  • the Campaign for Good Governance (CGG) and
  • the country’s first non-partisan women’s rights group: Women Organized for a Morally Enlightened Nation (W.O.M.E.N.).

In 1996, the CGG helped to catalyze the first democratic elections in Sierra Leone after 25 years of single-party rule.

During the Sierra Leone civil war (1991-2002), Ms. Bangura spoke out against the atrocities being committed on all sides. For her acts of denunciation, she was directly threatened with rape and murder. But she refused to be intimidated. Following the war, Ms. Bangura became involved in efforts to prosecute sexual violence as crimes against humanity and war crimes. Given her long experience as a civil society and women’s rights activist, and over the objections of defense counsel, Ms. Bangura was certified by the SCSL as an expert on violence against women and was called to testify about the various manifestations of sexual violence in the armed conflict in Sierra Leone. She wrote a brilliant and sophisticated expert report, distinguishing between Continue reading →