Lessons from Cambodia Redefine Path Toward Global Justice

By Anna Ansari '11


In the not-so-successful 2002 film adaptation of Graham Greene’s eerily prophetic and insightful novel, “The Quiet American,” a main character opines that, “They say whatever you’re looking for, you will find here. They say you come to Vietnam and you understand a lot in a few minutes.”  

I knew what I was looking for—a job and a deeper understanding of Chinese law, something about which I am passionate—when I decided to spend this semester, my last, participating in Brooklyn Law School’s study abroad exchange program at Hong Kong University. I did not, however, know or expect to encounter in these few short months, an experience that not only would be so enriched by the public international law concepts, laws and conventions that I studied at Brooklyn Law School in courses such as International Law and International Human Rights, but also would challenge, educate and provoke my thinking in such an unexpected fashion as I encountered during my February “Reading Week” break from HKU.

When I booked a round-trip ticket from Hong Kong to Saigon for 12 days, I knew that I would be exploring a country, culture and history inescapably tied to 20th century U.S. history, consciousness and sensitivity, but I did not expect to spend seven of those 12 days in neighboring Cambodia, exploring not only the spectacular temples of Angkor Wat, but also the atrocities and legacy of the Khmer Rouge—a short-lived government about which, prior to this trip, I knew very little. Pol Pot. The Killing Fields. These names were familiar to me, but did not yet hold any real deeper meaning.

I did not know, for instance, that over the course of the Khmer Rouge’s four years in power, the regime killed an estimated 2 million of its own people, out of a population of approximately 8 million, that even needing reading glasses could brand you an intellectual and condemn you to a short life of torture, eventual extermination and a place in a mass grave. I did not know that resistance to the establishment of a tribunal to bring those responsible for the crimes of the Khmer Rouge to justice in the 1980s was spearheaded by China and the United States, or that a tribunal, when finally established in 1997 in conjunction with the United Nations stagnated, only to deliver its first conviction in July 2010—the man known as “Dutch,” who ran the Tuol Sleng Prison, where between 1975 and 1979, an estimated 17,000 people were held, tortured, starved and bussed out to be killed to the Khmer Rouge’s Killing Fields, was convicted to 35 years in prison for war crimes.

Visiting Tuol Sleng Prison and the Killing Fields taught me not only historical facts of the Khmer Rouge’s regime, but also spurred me to think seriously and deeply about the importance and necessity of international criminal law and the concept of “global justice,” thoughts and notions that continued to percolate in my mind over the course of my five post-Cambodia days in Saigon.

For a number of years now, the International Law Society has sponsored a “Global Justice Fellowship,” of which I was a recipient in 2009. We at ILS distinguish this fellowship from the International Human Rights Fellowship both in name and because our Fellowship is entirely student-run and supported. However, though different in name from the Human Rights Fellowship, we do not delve into the substantive difference between “human rights” and “global justice,” and, in fact, the ILS fellowship is open to students pursing internships that fall into both categories. There is, however, a difference, and one I never understood fully, despite having been awarded the fellowship, having acted as the Fellowship Chair the following year, and as ILS Co-President this year; this “Reading Week” break has made me realize to some extent what that difference is and what “global justice” entails.

Starting in 2006, the Extraordinary Chambers in the Courts of Cambodia (ECCC), the formal name for the Khmer Rouge Tribunal, has sponsored a three-pronged study tour for interested citizens—first stop, Tuol Sleng Prison; second stop, the Killing Fields, and finally, the Tribunal itself. Since the tour’s initiation, over 70,000 Cambodians have participated. These are citizens who lost family and friends under the Khmer Rouge, as well as former “combatants” who participated in the atrocities of and under the direction of the Khmer Rouge. They go to see and remember, to understand and repent, to memorialize those whose lives were cut short by the Khmer Rouge, and to demonstrate their need for and belief in bringing those responsible for the death of their countrymen and the destruction of their society and homeland to justice. They go, as a former Khmer Rouge combatant quoted on a display in Tuol Sleng put it, “to prevent [them] from having such a regime again.” They go in the name of “legal accountability and justice.”

This past fall, at the close of Professor Lee’s International Law course, he asked who had begun the course believing in the importance and efficacy of public international law, and would now leave believing the opposite. It turned out that the majority of the class, myself included, would leave believing less in international law than at the outset.

After this trip to Cambodia, however, I actually feel the opposite and now believe strongly in the importance of binding international rules and laws that can and will hold legally accountable those that break them and, in doing so, provide justice to the victims and survivors left in their wake—not only because to have mechanisms can provide global justice and hopefully prevent future atrocities, but also because of the importance of providing closure and solace to the victims and survivors. Cambodia has finally begun to have such justice meted out and closure provided; Vietnam, on the other hand, has not.
I was warned by a friend not to visit the War Remnants Museum in Saigon (recently renamed as such after years of being known as the Museum of Chinese and American War Crimes), was told that it was “intensely disturbing,” but I visited the museum all the same. And, it was intensely disturbing. It was disturbing to be confronted with the Vietnamese depiction of America’s actions and legacy in Vietnam—through photo after photo of dead Vietnamese men, women and children, and photo after photo of Vietnamese disfigured by American chemical warfare.

What was most disturbing, however, was the clear lack of closure with which Vietnam and its people suffer, their inability to ever bring us to justice.  While it was the placard in Phnom Penh’s Tuol Sleng Prison pointing out that an ECCC study tour participant had recognized a family member whom they had never known what had become of from amongst the photos of inmates on display, in Saigon’s War Remnants Museum, it was the following 2009 letter to President Obama, written by an Agent Orange victim, that moved me the most—a cry for justice, a cry for assistance, a cry for closure.

President Obama!

My name is Tran Thi Hoan. I am 23 years old and was born in Duc Linh District, Binh Thuan Province, Vietnam with no legs and without a left hand. I am a second generation victim of Agent Orange. My parents were exposed to this deadly chemical, left over from the Vietnam War, while farming our land. Agent Orange has not only killed people living during the war, but has been killing several generations of their children, among whom I am one. It damages my country and other nations beyond imagination. I am writing to ask for your help in providing assistance to more than 3 million victims of Agent Orange like me in Vietnam and for the children of U.S. veterans suffering from Agent Orange in the U.S.

I have read your letter to your beloved daughters, in which you put it like this: “These are the things I want for you—to grow up in a world with no limits on your dreams and no achievements beyond your reach, and to grow into compassionate, committed women who will help build that world. And I want every child to have the same chances to learn and dream and grow and thrive that you girls have. That’s why I’ve taken our family on this great adventure.” I was deeply moved by the love you have for your daughters and the dreams you have for children of other countries, and I believe that you could have included children of Vietnam in your words. I dream that you were including innocent children slowly killed by dioxin, and their suffering. I dream you had in mind what to do to help every child to have the same changes to learn and to dream and grow and thrive like your daughters.

A few words about myself. When I was born, my parents were consumed with grief when they saw me. When I was in junior high school, I studied hard to become a doctor to help people in my hometown because they were so poor. But this dream was taken away from me. When I entered college, I was advised not to study medicine because I had no legs and only one hand. I was told not to dream about raising a family for fear that my children would be born deformed like me or even worse. From my personal story—just one among three million victims of Agent Orange—you may guess how our parents suffer. 

You are a father of two beautiful daughters, and you know how parents love their children. U.S. Vietnam veterans, sick from Agent Orange, have gotten some compensation for their illnesses, but their children have not. How do their children live a decent life the way your daughters do?

In the case of my poor country, Vietnamese veterans of the U.S. war and their children and grandchildren here have not received any justice from the U.S. courts: they refused to hear our case against the U.S. chemical companies. I know because I was one of the plaintiffs, representing millions of Agent Orange victims, in a lawsuit against 37 U.S. chemical manufacturers in U.S. Federal Court, the two richest of which are Dow and Monsanto. 

This denial of justice may have rendered void your dream for every child to have the same chances to learn and dream and grow and thrive. When I visited U.S. cities last October, I found the American people were deeply concerned about the problem of Agent Orange. Yet we are now faced with the lack of many things—sufficient medical care, vocational and physical rehabilitations, long term care, home care. The land like my family’s, which contains dioxin in the soil, has yet to be cleaned up. 

I understand that you are very busy with the urgent matters that face your country. I hope that you will consider the damage that the poison Agent Orange does to the lives of its victims with as much urgency because every life is important to the future of humanity. I hope that you, a symbol of hope not only for the United States, but also for the world, a father who loves his children dearly, and a man of humanity, will spare a little time to resolve this forgotten problem.

Thank you!

I returned to Hong Kong from Vietnam and Cambodia with a new understanding of and appreciation for public international law and global justice. This may not have been what I was necessarily “looking for” when I came here this semester, but is certainly something that I have “found here.” I am still a student, however—we all are and always will be, no matter our graduation dates and degrees—and can only hope the education I receive after graduation continues to provoke, challenge and inspire me as much as that which I have learned here and in the BLS classrooms has. As the quotation from “The Quiet American” continues, “They say you come to Vietnam and you understand a lot in a few minutes, but the rest has got to be lived.”

Spotlight On: Prof. Aaron Warshaw

By Nicolette Lotrionte '13


Patience and determination. These are the two words of advice that Professor Aaron Warshaw would offer to students looking to pursue a career in law. And judging from his successful career, it appears obvious that these are two words that Warshaw lived by.

Warshaw, a Brooklyn Law School graduate, currently teaches an International Legal Writing course to first-year students. Although his career has not always led him in the international direction, it is an area of law that he has been interested in for a long time.

As a 1L at BLS, Warshaw had only a vague understanding of what international law actually was. But that changed once he was selected for the Brooklyn Journal of International Law, where he eventually held the position of Editor-in-Chief.

One aspect of international law that Warshaw was particularly interested in dealt with conflict of law among countries and transnational issues.

“The thing that I liked most while I was on the journal,” he says, “is that international law is a very unsettled area, things are still changing.” Warshaw addressed an aspect of this in the note he wrote for the Journal of International Law.

“I wrote my note about defamation law as it relates to European Union treaties and how it relates to cross-border publication,” he said. This means “that if The Wall Street Journal publishes in Australia and it is read online by someone in Australia, do they sue for defamation in Australia or in New York?” In fact, this was a real case. Warshaw’s question was answered when the High Court in Australia held that it was permissible to sue The Wall Street Journal in Australia.

It seems that Warshaw is very happy with where his BLS education and career have taken him so far. Prior to his current position, an associate in the Labor and Employment Department at Seyfarth Shaw LLP, Warshaw worked as a law clerk in the Eastern District of New York. He says he is mostly drawn to areas of law that are “intellectually engaging,” such as international law. His work now, which revolves around employment law, appeals to him in the same way. The work is intellectually engaging, the case law is not settled, and new decisions are constantly coming down. Although his position now has very little to do with the international realm, Warshaw says that it has given him a leg-up when it comes to teaching.

“In some ways, having some distance from international law gives me a perspective for my legal writing class,” he says. “Now I can really look at the issues the students are addressing.”

Warshaw has plenty of advice for students who want to pursue a career in international law, such as to take a straightforward international law class in the fall semester of 2L year. International law is a different field with a different language and different courts. A course that provides a survey of international law is helpful.

As for law students in general, “first and foremost, make good contacts with professors or professionals within your field, because opportunities come through the relationships that you build, as much as your demonstrated ability as a student,” he adds.

China Creates Panel to Scrutinize Foreign Investments

By Kan Zhang '13

On Feb. 3, the General Office of China’s State Council issued the Circular on Establishing a Security Review System for Mergers and Acquisitions of Onshore Enterprises by Foreign Investors (the “Circular”), which just became effective on March 5.

The panel functions similarly to its U.S. counterpart, the Committee on Foreign Investment in the United States (CFIUS) under the U.S. Department of the Treasury. Unlike CFIUS, which is chaired by Secretary of the Treasury and includes representatives from 16 U.S. departments and agencies, China’s panel is jointly headed by two of its ministry-level agencies, the National Reform and Development Commission (the agency in charge of economic policies) and the Ministry of Commerce (the key regulator of foreign investment). Other ministries will be called upon for consulting purposes based on each particular transaction.

The Circular sets out the scope, content, working mechanism and procedure for merger and acquisition security review. It also provides a degree of clarity and certainty to foreign investors in cross-border acquisitions. However, as “national security” can be broadly interpreted, relevant Chinese authorities will certainly have discretion to the interpretation of some provisions and the scope of application of such provisions.

Coming under scrutiny are foreign mergers and acquisitions of domestic enterprises in certain obvious sectors such as military industry and industry related to national defense and security. The Circular also applies a concept of “actual control” in terms of foreign merger and acquisition of domestic enterprises in sectors such as major agricultural products, major energy and resources, infrastructure, transportation services, key technologies and major equipment manufacture. It is interesting to note that any foreign merger and acquisition of domestic enterprises “located near major and sensitive military facilities” is subject to review, while most of such facilities are in fact unknown to the public. Moreover, the Circular does not define a limit as to how far from military facilities it must be, allowing this provision to create much uncertainty for foreign investors as well as greater discretion in their review for the Chinese regulators.

The acquisition of actual control by foreign investors means foreign investors become the holding shareholders of or actually control a domestic enterprise after the merger and acquisition. The Circular defines “actual control” to the extent possible. It adopts a hard threshold of direct or indirect holding of 50 percent or more of equity of the target entity. Percentage of foreign ownership is calculated in aggregate. In addition, certain transactions that fall short of the 50 percent threshold but where foreign investors will obtain the actual control over the target’s business are also subject to review. Such transactions include those where foreign investors hold sufficient voting right to influence the resolutions to be adopted by the shareholders meeting or the board of directors and other circumstances where foreign investors actually control a domestic enterprise’s operational, financial, personnel, technology and other matters. Such non-exclusive list is seen as a development from previous regulations on acquisition of domestic enterprises by foreign investors. For instance, the 2006 Provisions Concerning the Acquisition of Domestic Enterprises by Foreign Investors, which is the predecessor regulation on the same subject, only uses the percentage of equity holding as a threshold. The Circular undoubtedly will be putting much stricter limitations on foreign investment.

As for how the U.S. has responded to Chinese investors, since China started expanding its offshore investment into the U.S., CFIUS has been reported to be closely scrutinized deals involving Chinese acquirers and challenged several. To name a few: Lenovo’s acquisition of IBM’s personal computer and laptop unit; state-owned China National Offshore Oil Corporation’s failed acquisition of UNOCAL (2005); Huawei abandoned its bid to acquire a 19 percent stake in 3Com after coming under politically-charged CFIUS scrutiny (2008); Northwest Nonferrous abandoned its bid to purchase Firstgold, a Nevada mining company, after CFIUS indicated that it would recommend that the President block the deal (2009); Tangshan Caofeidian Investment Corp withdrew notification of its bid for Emcore’s fiber optics division in light of CFIUS’s objections (2010); members of Congress unsuccessfully lobbied CFIUS to block Anshan Steel-Steel Development Company’s purchase of a minority stake in a reinforcing bar manufacturing plant (2010); CFIUS is currently reviewing AVIC International’s purchase of Teledyne’s general aviation piston engine business.

Coincidentally, on the same day that China’s State Council released the Circular, CFIUS reportedly proposed its recommendation that President Barack Obama block China Huawei’s $2 million acquisition of 3Leaf System assets. The impact that the Circular will have on U.S. investment in China and its effect on U.S.’s attitude towards Chinese investors remains to be seen.

Additional information can be found at: http://www.ssd.com/new_review_system_for_foreign_investor_m&a_deals_with_domestic_enterprises.

ICC To Investigate War Crimes in Libya

By Lauren Maccarone '11


On Feb. 26, the United Nations Security Council unanimously adopted Resolution 1970 referring the situation in Libya to the Prosecutor of the International Criminal Court. Since Libya is not a State Party to the Rome Statute, the referral provides the basis for ICC jurisdiction over alleged crimes committed in Libya since Feb. 15. The resolution, like Resolution 1593 on Darfur, purports to grant exclusive jurisdiction over non-Libyan nationals of countries that are not ICC States Parties to the courts of their nationalities, subject to waiver, and bars the UN from bearing any costs associated with the referral. On March 3, the Prosecutor announced that his office decided to open an investigation into alleged crimes against humanity committed in Libya.

Background of Conflict
In February of 2011, protests broke out in various parts of Libya to oppose the 41-year totalitarian rule of President Muammar el-Qaddafi. Qaddafi blamed these protests on foreign colonialist influence and attempted to quell the protesters with a violent crackdown. On Feb. 25, he allegedly ordered his security forces to begin air raids on the unarmed civilians congregating in the streets. Soon after, he reportedly conscripted mercenaries from neighboring countries such as Chad, Sudan and Niger to attack the unarmed civilians on the ground. His alleged actions and the resulting death toll led to a wave of public outcry around the world. The international community quickly responded with several actions in the United Nations, including in the Security Council.

International Response
The Feb. 25 air raids prompted the UN Human Rights Council to suspend Libya’s membership and to pass a resolution calling for an independent commission of inquiry to investigate the alleged human rights violations. The following day, the UN Security Council passed a unanimous resolution “deploring the gross and systematic violation of human rights, including the repression of peaceful demonstrators.” More importantly, it invoked its Chapter VII powers, responding to threats to international peace and security, to refer the situation in Libya from Feb. 15 to the ICC Prosecutor. This is the first time that the Security Council has unanimously referred a situation to the Court under Article 13(b) of the Court’s Rome Statute.

The United States strongly supported this referral. U.S. Ambassador Susan Rice stated in a press conference that the U.S. was “very pleased with the outcome and also with the unity of purpose that the Council has showed in acting quickly and decisively in accordance with its responsibility to protect.” Then, on March 1, the U.S. Senate passed its own resolution explicitly supporting Security Council Resolution 1970.

These actions demonstrate that the United States is willing to support the ICC where this support also bolsters its national interests. Despite the condemnation of the ICC referral by some conservative critics in the U.S., it could be a starting point for accelerating the growing relationship between the U.S. and the ICC.

Acceptance by the ICC
An Article 13(b) referral invites, but does not require, the Prosecutor to open an investigation into the country situation in question. However, on March 3, the ICC Prosecutor, Luis Moreno-Ocampo, announced the Court’s acceptance of the Security Council’s referral of the situation in Libya. Under the Rome Statute, the Prosecutor shall proceed with an investigation referred to it unless there is no reasonable basis to believe that crimes falling within ICC jurisdiction have been committed. He may conduct a formal investigation without the Pre-Trial Chamber authorization required in other circumstances. Here, a preliminary examination of the violence committed against civilians in Libya provided sufficient evidence that crimes against humanity were committed. Thus, the Prosecutor’s decided to open an investigation.

Once the Prosecutor feels he has accumulated enough evidence, he will ask the judges of the Pre-Trial Chamber to issue an arrest warrant for Qaddafi and possibly others alleged to have committed atrocity crimes. Under Article 58 of the Rome Statute, an arrest warrant is proper where the Pretrial Chamber is satisfied that there are reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court, and the arrest of the person seems necessary to ensure the person’s appearance at trial, to prevent obstruction of the proceedings, or to prevent continued commission of the crime.

Next Steps
Given their recent commission and the wide breadth of international coverage on the alleged crimes, the Prosecutor should have little difficulty meeting his burden of proof. Yet there are number of questions that still surround the case.

For one, the Prosecutor must determine whether to limit his investigations to crimes against humanity as opposed to expanding them to prepare for the inclusion of war crimes charges. When the Security Council referred the situation in Libya to the Court, the fighting between Qaddafi’s army and the rebel forces amounted only to an internal revolt. Article 8(2)(f) states that the war crimes provisions within the Rome Statute are not intended to apply to “situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence,” such as the case is here. However, the severity of the fighting has greatly increased since that time.

In fact, on March 18, the Security Council authorized military action led by Britain, France and the United States, against Qaddafi’s forces to quell their barrages against civilians. Should the conflict escalate into an internal armed conflict (known within the Rome Statute as a “conflict not of an international character”) the Prosecutor may consider additional charges such as war crimes.
Second, many doubt the Court’s ability to capture Qaddafi even after the issuance of an arrest warrant. The ICC has experienced great difficulty in arresting Omar Al-Bashir of Sudan and the fact that he is still at large years after his warrant’s issuance seriously undermines the Court’s goal to end impunity. Many are wondering, “Does Qaddafi really have anything to fear?” While it is hard to assure arrest, the Security Council’s unanimous referral of the case binds all members of the United Nations to arrest Qaddafi in the case that he is present on the state’s territory. The Prosecutor should work quickly in getting a warrant to prevent his assassination or flight into hiding, and thus increase the Court’s chances for arrest.

A final concern stems from the cost of this unforeseen investigation. The ICC has already decided on its budget for the fiscal year and there is little room for the case in Libya. The President of the Court, Judge Sang-Hyun Song, publicly confirmed that there are no budgeted funds available for the case. Worse still, is the fact that Security Council Resolution 1970 contains a reservation that prevents the UN from contributing funds to the case. As a result, the Court may ultimately need to dip into its contingency funds in order to move forward with the trial.

Conclusion
Despite the aforementioned hurdles, the referral of the situation in Libya to the Court is a positive reflection of the Court’s growing legitimacy as an international tribunal. It is important that the ICC and its supporters use this case to prove the Court’s ability to aid in fighting impunity and to bolster its global reputation.

This article by Lauren Maccarone was originally published for the American Non-Government Organizations Coalition for the International Criminal Court.

From the Editor's Desk

Welcome to the online edition of The Bridge, a newsletter published by the International Law Society at Brooklyn Law School! Here you will find Brooklyn Law students writing on various topics of international law, such as human rights concerns in Burma, or child prostitution in Costa Rica.

We also like to highlight law students who have been successful in working abroad, whether it be the American embassy in Beijing or the International Criminal Tribunal in Rwanda.

Feel free to browse around and enjoy. If you have any questions or comments, please contact the editors at ilsthebridge@gmail.com.

— Written by Julie Geng '13, Editor in Chief

Tips on Getting International Law Internships

We sat down with Steve Gordon, Brooklyn Law School’s Associate Director of Career Services, to discuss how law students can find meaningful work abroad in international law. The key to landing your dream job is to start early—some deadlines may be as early as mid-fall—and keep an open mind, he said.

• Start your search by stopping by the Career Services Office. Be sure to pick up “The Resource Guide to International Law” and “Selected Opportunities in International Law” handouts before you leave!

• Make sure you search for a position with a focus on international law—just because the job is abroad doesn’t mean it will involve international law.

• Highlight any international experience on your resume, including study abroad, teaching English overseas, Peace Corps or military experience.

• If your resume is lacking, try to parlay your local experience into international work. For example, if you’re working at a financial institution, try to get involved in international transactions. Always look for the international angle.

• Most internships are unpaid, so take time to research the different ways you can help fund your international law internship, such as the BLS International Human Rights Fellowship.

• Have an open mind! International law is a broad field, and there are many routes you can take within the profession.

• Most importantly, start early! Securing a visa and completing paperwork can be a lengthy process.

Can’t go abroad, but still want to snag an international law internship? Gordon says there are still plenty of great international law opportunities in the U.S., especially with the federal government in Washington D.C.. For a comprehensive list of government opportunities, check out:

• The University of Arizona Government Summer and Honors Handbook and The University of Arizona Public Policy programs Handbook. Your career advisor can provide you with the password.

• The U.S. Department of Justice Volunteer Internship Program

Other online resources:

• Use Martindale-Hubbell to research law firms with offices abroad.

— Written by assistant editors Nicolette Lotrionte ’13 and Elizabeth McKenzie ’13

A version of this article appeared in print in the December 2010 issue of the Bridge.

Burma or Myanmar: What’s in a name?

One of the first issues one notices when becoming familiar with the situation in Burma is the fact that the country’s official name is cited as Myanmar. So why the two names? In fact, both names have historically been used in the Burmese language, with “Burma” being the more colloquial version and “Myanmar” being more formal. The country was called Burma under British rule and that official name was incorporated in the 1947 independence constitution. The short-lived Burmese democracy apparently saw no reason to abandon a name commonly used by its citizens. Neither did the military junta, until 1989.

That year, shortly after a major political uprising and subsequent brutal crackdown, the generals who run the country changed its official name to “the Union of Myanmar.” This rebranding has been resisted by pro-democracy advocates who see it as an effort the military to control the narrative of the country. The name Burma therefore continues to be used by opponents of the military regime and, in solidarity, by many foreign governments and media outlets.

On Oct. 21, as part of their latest image improvement campaign tied to the recent election, the junta once again changed the name of the country, along with the flag and national anthem. The new official name is “The Republic of the Union of Myanmar.” It appears unlikely, however, that this latest appellation will gain international acceptance; shortly after the election a number of foreign leaders, including President Obama, made a point of referring to the country as Burma when addressing widespread electoral fraud.

—Written by Eben Saling ’12


A version of this article appeared in print in the December 2010 issue of the Bridge.

Update from the Human Rights Committee

The primary goals of the ILS Human Rights Committee this fall was to encourage more substantive discussion on current topics in the international human rights realm and participate in activities related to those issues. In order to do so, the committee implemented several mechanisms to facilitate dialogue concerning the major interests of committee members during its bi-weekly meetings, including: international criminal law, human trafficking, labor conditions, immigration/refugee law, and issues concerning women, gender, and children. Many of these topics will also be touched on in the spring semester.

The theme of the first several meetings was international justice, and we asked committee members to read Judge Richard Goldstone’s “The Future of International Criminal Justice – Evolving Accountability from Nuremberg to the International Criminal Court,” which was presented at a Penn State Law Symposium. Goldstone was the chief prosecutor during the early days of the ICTY and hence the article gives a sweeping look at international justice in the last 60 years, touching on Nuremberg, the Tokyo Trials, the formation of the ICTY and ICTR, and creation of the ICC through the ratification and implementation of the Rome Treaty. Members shared their experience working with various NGOs, tribunals, and other human rights organizations, as well as presented their opinions on whether they agreed with Goldstone’s premises of the progress of international justice. The committee also organized a film outing and discussed impressions of Nuremberg, the Schulberg/Waletzky restoration of the historic 1946 U.S. documentary. The NYC Film Forum’s screening marked the first time the documentary’s remarkable footage—from the Nuremberg trials as well as Allied Force’s liberation of the concentration camps—had been shown in the United States.

In order to foster communication outside of its meetings, the committee also created its own blog entitled “BLS Human Rights Committee” at http://blshumanrights.blogspot.com to 1) promote relevant events related to the law and human rights taking place at BLS and in the greater NYC area; 2) circulate articles/reports/websites that are of interest; and 3) provide a discussion forum on these topics.

The current focus of the committee is the planning of events for next spring. Already there are several ideas in the works, including roundtable discussions on the 2010 Senate immigration reform bill and Universal Periodic Review (UPR) process of domestic human rights implementation as well as a potential panel focusing on international justice. Because the committee was able to accomplish a variety of undertakings during this fall semester, it is now in a position to achieve even more this coming spring. Please be on the lookout and don’t forget to visit the new blog!

— Written by Laura A. Gretz and Brigitte Hamadey, Co-Chairs of the ILS Human Rights Committee


A version of this article appeared in print in the December 2010 issue of the Bridge.

Human Rights Abuses in Afghanistan Rooted in Political, Religious Culture

By Lauren Maccarone '11

Rarely a day goes by that we don’t hear about the vast number of human rights abuses occurring in Afghanistan. Advocates, both on the ground and here in the United States, are working tirelessly to gather information on the seemingly endless abuses and to report them in the media. Sadly, this is the only tactic available under the current circumstances.

Human rights abuses in Afghanistan are extremely difficult to overcome because they are deeply rooted in the country’s political and religious culture. Taliban rulers perpetrate much of the violence. Despite the U.S. and NATO military forces’ efforts to remove these leaders, they continue to control many of the Afghan territories and to obtain high-level governmental positions. Civilians are responsible for the remaining abuses. Individuals often torture their own families and neighbors as punishment for non-compliance with notoriously rigid Sharia customs. These customs, like Taliban rulers, seem to be woven into Afghanistan’s history in a way that cannot be undone.

But what if human rights advocates had the opportunity to lessen the influence of Sharia extremism and Taliban rule? The Afghan transition movement may give them the chance they have been waiting for.

The current plan is for NATO to orchestrate the transition by systematically replacing its own forces with trained Afghan forces, while the U.S. and Afghan governments negotiate reconciliation with the Taliban.

This reconciliation entails the reintegration of Taliban leaders into Afghan society. The process will require detailed discussions on land ownership and control, governmental and military leadership and the many laws that are implicated. One can already predict proposals for land cessation, for constitutional amendments, and for the reinstatement or election of new political officials and judges. In short, the stage is set for a total makeover from the bottom up.

The transition will undoubtedly produce a new way of life for Afghan civilians. The fear is that those running the show will miss out on opportunities to make the human rights improvements that Afghans deserve. Will NATO or the U.S. ask that there be new legislation implemented to protect women’s rights? Will they create a vetting process to ensure that Taliban extremists are not given leadership positions in their newly formed society?

On the contrary, these issues are often swept to the wayside for the sake of a peaceful agreement. Human rights advocates must insert themselves into the transition discussions on behalf of civilians to ensure that the latter’s interests are represented.

A version of this article appeared in print in the December 2010 issue of the Bridge.

Interview with Kyaw Thein Kha, Irrawaddy Reporter in Burma

By Brigitte Hamadey '12

On Nov. 13, Ms. Aung San Suu Kyi, Burma’s pro-democracy leader, was released after seven years of isolation in her lakeside home. The military government has kept her confined under house arrest for 15 of the past 20 years. A few days after her recent release, Suu Kyi filed papers with the country’s High Court asking to have her party, the National League for Democracy, reinstated. Only time will tell what type of impact her new presence will have in the country, but, in the meantime, I had the rare opportunity to ask Mr. Kyaw Thein Kha, a reporter for the Irrawaddy Online Magazine, a few questions regarding these recent developments:

1) What are the Burmese community’s sentiments in response to Ms. Aung San Suu Kyi’s release?
Burmese people who have been in hunger of human rights and democracy for decades see that Aung San Suu Kyi’s release is good for the Burmese military regime to start the national reconciliation process by holding tri-talks between Aung San Suu Kyi, the army leaders and the ethnic leaders. But, we wonder if the stubborn military leaders would want to do that.

2) What factors do you believe led to her release?
I believe that the military leader Senior General Than Shwe released Suu Kyi because of the following possible points:
(1) Than Shwe might think that Suu Kyi will not be able to intervene in the election that was held on 7th November 2010 prior to Suu Kyi’s release on 13th November 2010.
(2) On the other side, the UN, U.S., E.U. and ASEAN had reportedly called on the military regime to release Suu Kyi from the house arrest.
(3) The release of Suu Kyi will help the military leaders to show their faces bravely to the international community in dignity. (But, we still have over 2,000 political prisoners that need to be released unconditionally.)
(4) Although Than Shwe knows that the release of Suu Kyi will change the fear of the public into courage to fight against them (military group), he decided to release her because of the three conditions mentioned above.

3) What significance does her release mean for the future of Burma?
Her release leads to national reconciliation between Burmese military regime and ethnic groups, including ethnic armed groups that didn’t accept the regime’s Border Guard Force (BGF) plan.

4) How likely is it that the National League for Democracy (NLD) will gain official recognition in Burma?
On [Nov. 18], NLD’s lawyers went to the supreme court trial in Nay Pyidaw regarding to official recognition of party’s existence in the country, but no result has been announced by the court.

5) In the past, Ms. Suu Kyi has been released and then detained again.  Do you believe that her freedom will last?
That’s the point we (all of Suu Kyi’s supporters) are really concerned about at this moment. It’s unpredictable what the military junta will do. The government-supported thugs and other bad street [persons] can harm her anytime. We all have learned about that from Depayin assassination attempt on Suu Kyi in May 30, 2003.

6) Other general reactions or thoughts on this issue?
We believe that only Suu Kyi is a true leader who can solve the problems of Burma, such as human rights abuses across the country by the military regime and conflicts between ethnic armed groups and military groups. So, tri-talks are really needed to lead the national reconciliation. On [Nov. 14], one day after she [was] released, Suu Kyi said that national reconciliation is [the] priority among what she has to do after [her release].

Kyaw Thein Kha is a Burmese reporter for the Irrawaddy Online Magazine and is based in Thailand.  He has a background in economics and engineering and has served as a Burmese/English translator, including for Al Jazeera. Thein Kha will be studying Documentary Film Making at the New York Film Academy beginning in 2011.  

A version of this article appeared in print in the December 2010 issue of the Bridge.

The Failure of International Law in Latin America

By Catherine Frizell '12

I was in San José, Costa Rica for about three minutes before I was completely lost. A bemused local later told me that the city government had paid to have the signs ripped down a few years back, in anticipation of new ones. The signage budget item failed to gain funding, so alas, San José has no street signs—and with dim street lamps, the city is a labyrinth for tourists at midnight. With their travel lust rapidly fading and their panic setting in, my three companions blurted out halfhearted directions as I drove up the calles and down the avenidas surrounding the Centro Mercado. I slowed down when a pool of red light broke the monotony of gray nighttime tones. From afar, it looked as though five or six women were perched outside of a party, perhaps smoking cigarettes. As the car drew nearer, two of them disappeared into a nearby house, while the four others remained. The women weren’t women; they were girls—probably about 13 or 14 years old, dressed in short skirts, high heels, painted with dark lipstick. There was no party—I looked to my friends for verification, to confirm that what I was seeing was real. Their eyes were as wide as mine were—these little girls were prostitutes.

The international legal community responded to the problem of child trafficking and prostitution with the near-universal endorsement and ratification of the Convention on the Rights of the Child in 1990. With 191 participatory nations, the CRC is the most widely ratified human rights treaty in history. It is designed to set out the “rights that must be realized for children to develop their full potential.” At the time of its signing, it was praised as the most thorough and all-inclusive of all human rights treaties. Indeed, the CRC set out to protect children from abduction, sale and trafficking, from any other form of exploitation, and from cruel and inhumane treatment. In fact, Article 19 specifically protects against offenses of child prostitution, while Article 34 explicitly protects children from sexual abuse and sexual exploitation.

The international law response did not stop with the CRC. Since the CRC does not enable the United Nations to arrest child sex trafficking offenders, the UN endorsed the 2000 UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, a supplement to the UN Convention Against Transnational Organized Crime. In 2002, the UN Committee on the Rights of the Child issued an optional protocol in the CRC which signatory nations had the option of ratifying—The Optional Protocol on the sale of children, child prostitution and child pornography. Additionally, the UN adopted the 2004 version of the Protocol to Prevent, Suppress, and Punish Trafficking in Persons, especially women and children, which sought to standardize the international approach to the establishment of domestic criminal offenses and prosecuting trafficking in persons cases. Notably, the protocol is the first global legally binding instrument with an agreed-upon definition for human trafficking.

Despite collaborative international efforts, child prostitution and trafficking remain a serious problem in Latin America. There, an estimated 500,000 children work as sex workers, while there are an estimated 3 million children working as sex workers worldwide. In Costa Rica, sex tourism has flourished. The Costa Rican government estimates that 5 percent of the one million Westerners traveling to Costa Rica annually are pedophile sex tourists who have targeted Costa Rican girls and boys for sexual abuse. In recent years, there has been an uptick in Costa Rican sex tourism after recent sex tourism crackdowns in Asia. The little girls I saw working as sex workers in San José are not alone. Approximately 5,000 children in San José, Costa Rica live and work as prostitutes.

Economic and political upheaval in Latin America have created an environment where child exploitation thrives. The prostitution rings are typically organized involving the complicity of nightclubs, motels, hotels, taxicab drivers—and parents who view their children as a means of making an income. Often parents sell their children, rationalizing that the children may go on to work as a domestic laborer for a wealthy family, who can provide a better life for them. Other families send their children directly into prostitution if there is no other “legitimate” alternative work. Sometimes children voluntarily engage in prostitution for personal money. They may live on the street, or may be self-employed or work in gangs, forced to provide for themselves economically. This is especially true for girls and women, who are not afforded the same educational and economic opportunities available to male counterparts. As the economy worsens, girls and women become more financially vulnerable, and more likely to become financially dependent on men.

Despite the lack of funding and difficulty in enforcement, in 1998, both governmental and nongovernmental organizations developed another body in order to curtail the influx of sex tourism in Costa Rica: the National Action Plan against the Commercial Sexual Exploitation of Children (NAPCSEC). The NAPCSEC seeks to monitor child exploitation and raise awareness, but its framework, void of timelines, lacks the sense of urgency needed to eradicate the problem of child exploitation. However, it did play a role in overhauling the Costa Rican criminal code. It was not until 2002 that those who sexually exploited children could be prosecuted at all. In fact, until that time, the judiciary would drop charges of ‘corruption of minors’ when the accused adult proved that another person had already had sex with the child, reasoning that the child was already corrupt.

Latin American customary law also acts as a roadblock to eradicating child prostitution and sex tourism. While the CRC established the definition of a child as any human being below the age of 18, Latin American countries have yet to reach consensus regarding the age of consent. Even though Latin American countries agree that child prostitution and child sex tourism are immoral practices that demand an international response, the age of consent differs from country to country, and state to state, ranging from ages 13 to 18. Not only do different age of consent laws endanger girls’ well-being, they also make domestic enforcement trickier. The CRC simply set the preferred age of consent at 18, but this suggestion does not preclude other countries from establishing a lower standard. Some scholars argue that far-reaching extraterritorial legislation that aims at prosecuting American citizens who engage in child exploitation with a minor in another country would go beyond the boundaries of the Constitution and interfere with international relationships.  On the other hand, some argue that aggressively prosecuting Americans who feed the demand for the Latin American child sexploitation and prostitution industry would be in the best interest of Latin American children, and should be pursued regardless of legal and political repercussions.

While prosecuting Americans for exploiting Latin American children and providing the demand that the industry thrives might seem like the right thing to do, it would not actually ensure Latin American children have more rights. Under the human rights framework adopted by the CRC, judicial analysis does not necessarily consider the “best interest of the child” when prosecuting offenders in their own country. Though Article 3 of the CRC sets forth that the “best interests of the child” should be the primary consideration in all matters affecting children, the human rights framework treats children as independent of adults. At least one scholar cites this as a contributing factor to CRC’s failure: domestic courts may be developing jurisprudence that does not ensure children’s rights. Specifically, a human rights framework treats children as adults, overlooking that children need to be protected by adults. Jurisprudence that truly uses a “best interest of the child analysis” should hold interested adults legally obligated for the protection of children and their best interests within the signatory nation.

Clearly, the international community needs to take further action to eradicate sexual exploitation of Latin American children. Though the human rights approach has successfully established child trafficking as an international crime, Latin American courts may need use a different framework in how to incorporate the “best interest of the child” standard in their jurisprudence. Since recent policies have been successful in eradicating child prostitution in Asia, the international community should employ similar tactics in its relations with Latin America. In addition, policies alleviating the plight of the poor, and supporting education and gender equality will allow girls and young women opportunities to support themselves and their families by working “legitimate” jobs.

Twenty years ago, the drafters of the CRC sought to develop a document delineating the rights that must be realized for children to develop their full potential. However, the international community has failed to provide Latin American courts with adequate guidance as to how the “best interest of the child” standard should be interpreted. In neglecting to do so, the international community is effectively messaging that the children engaging in prostitution have reached their apex. The lackluster approach to enforcing the CRC and subsequent agreements disregards the spirit of the “best interest of the child” standard set forth in Article 3 of the CRC, and leaves the children of San José reflective of the streets they walk on—nameless and forgotten.

A version of this article appeared in print in the December 2010 issue of the Bridge.

Refugee Protection and the One-Year Asylum Deadline

By Laura A. Gretz '12

Over the course of this semester, I have been interning with Human Rights first in their Refugee Protection Program as their sole legal intern. What drew me to HRF was the opportunity to learn more about immigration law while simultaneously using my knowledge of Spanish to interview potential asylum candidates. I was interested in interacting more with clients after having no client contact while working this summer in the prosecution office at the UN International Criminal Tribunal for Rwanda in Tanzania.

Unlike BLS’ Safe Harbor Clinic, HRF does not directly represent asylum candidates but performs initial intake interviews to assess the strength of asylum claims through reporting on the candidate’s personal history, fear of return to their home country, and the corresponding country’s conditions. I have written several of these intake reports, and once they are compiled, HRF’s senior counsel decides whether the information warrants assigning the candidate’s claim to one of the firms on HRF’s referral list that provides pro bono assistance to asylum seekers. HRF reasons that abstaining from direct representation of asylum seekers allows it to ultimately help more people as well as engage in more policy advocacy.

One of the policy issues most significant to HRF at present is the one-year deadline associated with asylum application, which requires asylum seekers to file within one year of arriving in the U.S. I attended an HRF briefing on a report written by several of its staff attorneys analyzing and discussing many of the pitfalls associated with this aspect of the asylum law, which has led asylum seekers to increasingly file for “withholding of removal” in place of asylum. “Withholding of removal” originated as an alternative for immigrants with asylum-barring criminal convictions who still had genuine reasons for fearing deportation.

The disadvantage of “withholding” is that recipients are permanently precluded from ever receiving permanent residency or citizenship and cannot leave the U.S. temporarily or they will be denied re-entry. This raises serious equitable concern over the fact that immigrants with no criminal convictions who have failed to meet the one-year deadline—very likely due to post-traumatic stress or simple survival reasons—are forced nonetheless to resort to filing for “withholding.” HRF is optimistic that immigration judges and attorneys are voicing their concern over the disadvantages of the one-year deadline and that its policy advocacy on Capitol Hill will help influence abrogation of the requirement.

A version of this article appeared in print in the December 2010 issue of the Bridge.

Election in Burma: Reprieve or Rerun?

By Eben Saling '12

Events in Burma have featured regularly in the news over the last few months. Along with landmark elections, the release of Nobel laureate Aung San Suu Kyi from house arrest has guaranteed heavy coverage. To the casual observer it may appear that the notoriously guarded and oppressive military junta that controls the country has suddenly changed their course. To anyone familiar with the country’s history, skepticism is the more likely response.

The elections of Nov. 7 were Burma’s first in 20 years. The junta, in power since a 1962 coup, has presented the elections as a bold step toward democracy. Many opposition members, international organizations, and foreign governments, however, argue that both the structure and results of the election were rigged to protect military power. In the inaugural parliament, the military-aligned Union Solidarity and Development Party (USDP) controls more than 75 percent of the seats.

Suu Kyi, the leader of the opposition National League for Democracy (NLD) party, has been subject to two decades of near-continuous confinement. Her most recent release from house arrest, on Nov. 13, occurred just before the official results of the vote were known. Widespread and positive public reaction to her freedom has proven that she continues to hold considerable power and moral authority inside Burma, despite the fact that she was barred from standing in the elections. Her role in the political arena, and the military’s reaction to it, are being watched carefully as an indicator of the potential for reform.

These recent developments have provided many with hope that Burma is finally moving away from its long history as a pariah state with one of the worst human rights records in the world. However, the ultimate effect of the elections, and particularly whether they will create any latitude for significant reform, remains to be seen. Suu Kyi has been granted freedom before, only to be placed back into detention as soon as she becomes a political liability to the ruling generals. If the past actions of the junta are any indication, the election and amnesty may prove nothing more than a public relations ploy meant to distract from the continuing human rights crises within the country.

Background
The reality remains that Burma is one of the least developed and most corrupt countries in the world. The ruling military has systematically committed a long list of human rights abuses in its struggle to maintain power including arbitrary arrest and detention, extrajudicial killings, forced labor, recruitment of child soldiers, and torture.

Despite the brutal tactics used by the regime to stifle opposition and consolidate control, Burma remains an inefficiently governed, fragmented state. Although rich in natural resources and arable farmland, it is one of the poorest nations in Asia due in large part to the mismanagement and corruption of the ruling regime. International aid organizations are allowed only limited access to the country, exacerbating the existing food shortages and public health crises. Burma has more annual deaths from malaria than any other Southeast Asian country and has suffered HIV and tuberculosis epidemics worsened by a lack of health services for much of the population.

Conditions are particularly dire in the rural areas of the country, where the majority of the population reside. Many outlying areas are partially controlled by ethnic minority groups who are frequently targeted by the military. Some of these groups manage a degree of autonomy and an uneasy peace with the junta. Others live as internally displaced peoples, on the run from military raids and the threat of forced labor. Hundreds of thousands of refugees have fled into neighboring countries.

In May 2008, Cyclone Nargis struck the southwestern region of the country, killing as many as 200,000 people and destroying homes and vital crops. Always fearful of outside influence, the government blocked most international aid groups from operating inside the country. The military’s own response to the disaster was so ineffective and plagued with graft that some international organizations called on the International Criminal Court to investigate for possible crimes against humanity.

Although the government was apparently unable to provide basic services to citizens who were living without food or shelter, it was eager to continue with a planned constitutional referendum held just days after the disaster. Both the timing and integrity of the referendum were widely criticized, as was the new constitution. As part of the so-called “roadmap to democracy,” it established a new election process and “democratic” parliamentary structure that guarantees the military continued power.

While the junta has made democratic overtures in the past, it has always returned to its practices of political oppression and totalitarian rule. Elections held in 1990 resulted in a landslide victory for the opposition National League for Democracy (NLD) party and were promptly nullified. Many of the Burmese citizens who worked with the NLD during that period now number among the thousands of Burmese political prisoners, or have been forced to flee the country in the years since the elections.

Suu Kyi is one such citizen. The daughter of Aung San, the martyred architect of Burma’s independence from Britain, she led the NLD to its 1990 election victory despite being placed under house arrest in 1989. Awarded the Nobel Peace Prize in 1991 for her “non-violent struggle for democracy and human rights,” Suu Kyi’s detention continued until 1995 when she was released conditionally, with restrictions placed on internal and external travel.

She was arrested again in 2000 for two years and, following a failed assassination attempt in 2003 by government-paid thugs, was placed back into detention until her most recent release. Suu Kyi continues to inspire the Burmese democracy movement despite her harrowing record of detention. Her ordeal serves as a prime example of the military’s duplicitous attempts to lessen international pressure while continuing its totalitarian practices.

Recent Events
Many believe that the latest election and amnesty is yet another episode in this pattern of feigned reform. In recent years, Burma has increased its economic ties with China, Thailand, India, and a number of other states. The lessening of international pressure and economic sanctions could mean a huge influx of investment, benefiting the generals and their allies.

The junta has tried its best to assert the fairness of the recent elections. State-run media such as the New Light of Myanmar and TV Myanmar International provided a range of stories on the elections, from the mundane, “Maj-Gen Tin Ngwe of Ministry of Defence and wife cast votes,” to the misleading “Diplomats, journalists observe casting votes in Haka and Falam.” In reality, the junta refused entry to international election observers and, while there were a few foreign diplomats present (notably, a group from North Korea), they did not provide serve any significant role in monitoring the elections.

Reports from independent Burmese observers, however, indicated widespread voter intimidation. Bribery and other abuses—such as the military taking advantage of advance voting by forcing whole units of soldiers and their families to vote in blocs—were also alleged. This, in addition to the fact that the new constitution guarantees 25 percent of parliamentary seats to military representatives, limits the activities of political opposition groups, and dictates that the president of the country, who is not elected, must be a current or former member of the military.

For these reasons, many civil society groups and political organizations, including Suu Kyi’s, boycotted the elections as part of a larger strategy of actively opposing the regime’s roadmap.

This boycott strategy was roundly supported by the exiled pro-democracy movement according to Jenny Hedstrom, a Swedish consultant currently on the Thai-Burma border who stated, “The exile groups don’t trust the military at all, and strongly believe the election was solely a charade to make the Burmese junta look legitimate in international eyes.”

That charade seems to have failed. Many in the international community, including President Barack Obama and British Prime Minister David Cameron have joined pro-democracy and human rights groups in condemning the elections as a “sham” designed to mislead the international community and add an air of legitimacy to the regime. Groups such as Amnesty International and Human Rights Watch (HRW) have been highly critical of the junta’s roadmap at every turn.

Considering the structure and administration of the elections, the final results announced on Nov. 18 surprised no one. Pro-regime parties won 946 of the 1,154 seats up for election, not counting the 25 percent of seats already guaranteed to the military. Opposition parties won less than 9 percent of the total seats.

During the period between the election and the announcement of the final results, the junta released Suu Kyi from house arrest. Additionally, her youngest son has finally been allowed to visit her, after having been denied a visa to Burma for 10 years. While pro-democracy groups are overjoyed at Suu Kyi’s release, they are also cautious in their optimism, worrying that she will eventually be taken back into custody. Caution does not seem to be the foremost concern of Suu Kyi who, since her release, has continued to speak out for non-violent revolution in Burma, saying “I think of revolution as significant change. I say this because we are in need of significant change,” while criticizing the military’s illusory approach to reform.

What Now?
One change that has taken hold recently in Burma is the foundation of numerous civil society groups working for social reform within the country. Made up of private citizens and businessmen, and sometimes associated with the ruling regime, the groups first became visible as self-help apparatuses after Cyclone Nargis and are now working on a number of domestic issues. Representatives of some groups argue that the recent election, although biased, signifies growing room for civil action.

Mindful of the reality on the ground, and with the hope that they will face fewer restrictions in the post-election environment, several of these groups are prepared to continue testing the boundaries of freedom inside the country. A senior consultant working with a group based in Rangoon posited that “as long as one does not touch direct politics, one is pretty much free to do what one wants, in particular in the fields of education or humanitarian aid.”

The pro-democracy movement is skeptical, however, and continues to place their faith in the international community and international law. They have most recently lobbied United Nations member states to support the UN human rights monitor to Burma, Tomás Quintana, in his call for a commission of inquiry to investigate the widely documented human rights abuses and war crimes committed by the regime. HRW has also been a strong supporter of the commission of inquiry, which could be seen as a possible road to reconciliation between the junta, pro-democracy activists and ethnic minority groups.

These ethnic groups, who maintain control in many border areas, have begun to organize their forces for the possibility of renewed confrontation with the regime. Mindful of the crackdowns that have occurred after past elections, they feel it is necessary to be prepared. There are reports that high-level meetings have taken place in Thailand during the last few weeks concerning strategic cooperation between several of these groups.

Regardless of the strategic intentions behind recent events, the fact remains that there is a long and difficult road to traverse before Burma can celebrate the result of a truly democratic election. Suu Kyi has, since her release, stated a willingness to work with all actors who are prepared to enter a real dialogue about the democratic future of Burma. Short of international imposition or active rebellion, we can only hope that there are actors in the military regime with the same willingness.

A version of this article appeared in print in the December 2010 issue of the Bridge.

Evaluating the International Criminal Court

By Lauren Maccarone '11

Many victims of war crimes, from all corners of the world, view the International Criminal Court (ICC) as their only hope of stopping perpetrators and obtaining justice. Most Americans, however, remain ignorant of the existence of the ICC, much less its role in and importance to international justice.
For the last eight months, I have served as a legal intern to the Coalition for the International Criminal Court (CICC). The CICC serves as the uniting force for over 2,000 non-governmental organizations worldwide that support the Court and its goals. During my time there, I researched and drafted memos on various ICC issues and met with legal advisors from CICC constituent member organizations, ICC member states, and the United Nations to discuss those issues. I truly loved every minute of my experience.

By far the most amazing part of the internship was the two weeks that I spent working with the CICC in Kampala, Uganda at the Inaugural ICC Review Conference.  Originally scheduled by States Parties (those nations who have signed the ICC’s underlying treaty, known as the Rome Statute) to discuss and pass the “Crime of Aggression,” it ultimately turned into so much more.

First, the conference was attended by far more than the now 111 States Parties. Specifically, ICC officials, prosecutors and staff from other criminal tribunals, high-level UN officials, representatives from non-state parties (such as the United States), academic experts from around the world, and most importantly, war crimes victims, also attended.

Second, the conference was extended an entire week so that those present could engage in a thorough evaluation (dubbed “stocktaking”) of the Court’s work thus far. As a result, the conference not only culminated in a Rome Statute amendment on the “crime of aggression,” but also in a working plan for how the ICC could develop and improve in the future.

The knowledge and experience that I gained from working with these individuals on revolutionary international criminal laws will prove invaluable for my career going forward. I was the most impressed by the overwhelming amount of dedication and enthusiasm shown for the Court. The poorest African nations were alongside the richest of Europe, negotiating into the early hours of the morning on what seemed like impossible compromises. Victims of the Lord’s Resistance Army, the conflict in the Democratic Republic of Congo, and the Darfur genocide risked their lives and spent months of pay to travel to the Conference simply to reiterate the Court’s importance in their lives. I was shocked, and since I am an American, who can blame me?

Unfortunately, few Americans know what the ICC is, let alone support it. This is primarily due to the fact that the U.S. has not yet ratified the Rome Statute and thus, is not an ICC State Party. America’s reluctance to sign the Rome Statute stems from distrust in the Court’s use of universal jurisdiction, which allows any country to prosecute any perpetrator, regardless of his or her nationality, of crimes that are recognized as illegal by all nations under customary international law. For example, the ICC may prosecute any individual who commits the specific crimes of genocide, crimes against humanity, war crimes, and the crime of aggression.

This does not mean, however, the United States supports impunity for these crimes.  On the contrary, the U.S. delegation to Kampala was very vocal about its intention to cooperate with the Court in combating them.  But is this enough?

The Court, while fragile, is progressing onto the international scene at a rapidly increasing speed and at least 111 countries are already on board. As I observed, academics, UN officials, civil society, and most importantly, the victims of the world’s most heinous crimes all see the Court as a promising future solution.  At the very least, it is time for Americans to get more involved.  The rest of the world is moving ahead with its support for the Court, with or without us.

A version of this article appeared in print in the October 2010 issue of the Bridge.

Righting Wrongs: The International Criminal Tribunal for Rwanda

By Hanna Morrill '12

There is no doubt that the International Criminal Tribunal for Rwanda (ICTR) continues to play an important role in the development of international humanitarian law. ICTR, which was established in 1995, was at the beginning of its 16th year when I arrived there at the end of this past May to start my summer internship.  I spent two and a half months living and working in Arusha, Tanzania.
Working in Trial Chamber III, I was assigned to the case of Jean-Baptiste Gatete (ICTR-00-61), a single-accused. His trial had been completed at the beginning of the year and we were awaiting the submission of the final briefs from both the prosecution and defense teams. As the only intern on the case, I performed duties that ranged from researching precedent with regard to admissibility of witness testimony post-trial to preparing points for observation while in Rwanda. Site-visits in Rwanda were delayed until July after the submission of briefs, due to the prevalance of discrepancies in witness testimony. The delay prompted both parties to attempt to add more testimony to the case file in order to bolster their arguments.

Much of my time was spent summarizing and determining the credibility of witness testimony. It was quite harrowing to read horrifying descriptions about their family, friends, and neighbors being pursued and slaughtered. It was even harder to then step back and take a critical look at someone’s traumatizing experience to determine whether or not they were telling the truth. But it is not as simple as asking for the truth as to whether they saw a friend killed; it is about whether their testimony changed from the initial prosecution or defense interview to now include charges against the accused. Discrepancy in witness testimony is a significant problem at the ICTR and it is no wonder, after 16 years, memories still fail regardless of how traumatic the experience may have been. Besides unreliable memory, sometimes the reasons they have for testifying change. It is imperative to verify that when a witness testifies that the accused, in this case Gatete, stopped by and incentivized the militia to kill thousands, it was actually Gatete that they saw. When a witness failed to mention an accused’s name in the initial intake years before, it is vital to look at the details of the testimony to see if others corroborate this sighting.

Over the course of the summer, I attended a few days of trial and observed two judgments being passed down. Both Dominique Ntawukulilyayo (ICTR-2005-82) and Yussuf Munyakazi (ICTR-97-36A) were found guilty of genocide. It was frustrating bearing witness to the moment when Munyakazi, who the court found liable for the deaths of over five thousand people, was only sentenced to 25 years in prison, six of which had already passed as he awaited judgment. It is somewhat unfathomable that sentences for such horrible crimes can be so low. Meanwhile, during the summer, the ICTR was also faced with a new challenge when Joseph Nzirorera, one in a joint-accused trial, passed away before the trial’s conclusion. This was the first time that a party in a joint-accused case had died before the end of trial.

It was gratifying to work for and be a part of the ICTR. Exposure to the daily challenges made it possible to see how many obstacles international humanitarian law faces. At the same time, my experience with the ICTR also gave me a greater appreciation for ICTR’s work and contribution to international criminal law, given that the smallest problems can become major hurdles. Despite the criticism that the tribunal has been slow and inadequate, it is undeniable that as a result of this, justice has been delivered to many of the major perpetrators of some of the worst crimes in history.

A version of this article appeared in print in the October 2010 issue of the Bridge.