Showing papers in "Berkeley Journal of International Law in 2003"

Prosecuting Wartime Rape and Other Gender- Related Crimes under International Law: Extraordinary Advances, Enduring Obstacles

Abstract: The last decade witnessed explosive developments in efforts to impose criminal responsibility on leaders and others responsible for the most serious international crimes committed during periods of armed conflict or mass violence. One of the most revolutionary advances in these efforts has been in redressing crimes committed disproportionately against women and girls, particularly rape and sexual slavery. Laws prohibiting wartime sexual violence languished ignored for centuries, so the recent progress in prosecuting various forms of gender-related crimes is unparalleled in history and has established critical precedential authority for redressing these crimes in other fora and conflicts. While the post-World War II trials held in Nuremberg and Tokyo largely neglected sexual violence, the Yugoslav and Rwanda Tribunals have successfully prosecuted various forms of sexual violence as instruments of genocide, crimes against humanity, means of torture, forms of persecution and enslavement, and crimes of war. The Tribunal Judgements have compellingly verified that warring parties use sexual violence as a mighty instrument of war and an illicit weapon that causes extensive terror and devastation throughout the enemy group. Not only are rape crimes increasingly committed systematically, but they also continue to be routinely committed opportunistically, essentially because the atmosphere of war and the violence it engenders creates the opportunity. Whether organized or random, orchestrated or opportunistic, sexual violence generates mass terror, panic, and destruction. This article first reviews the historical development of international laws most relevant to women during periods of war or mass violence, particularly interna-

Rape as an Act of Genocide

Abstract: Like all rape, genocidal rape is particular as well as part of the generic, and its particularity matters. This is ethnic rape as an official policy of war in a genocidal campaign for political control. That means not only a policy of the pleasure of male power unleashed, which happens all the time in so-called peace; not only a policy to defile, torture, humiliate, degrade, and demoralize the other side, which happens all the time in war; and not only a policy of men posturing to gain advantage and ground over other men. It is specifically rape under orders. This is not rape out of control. It is rape under control. It is also rape unto death, rape as massacre, rape to kill and to make the victims wish they were dead. It is rape as an instrument of forced exile, rape to make you leave your home and never want to go back. It is rape to be seen and heard and watched and told to others; rape as spectacle. It is rape to drive a wedge through a community, to shatter a society, to destroy a people. It is rape as genocide. 1

Family Separation as a Violation of International Law

Abstract: Devastating to the individuals involved and frequently destructive in its long-term impact on cultural groups and entire societies, the involuntary separation of families is a widespread problem that deserves increased attention as an issue of international human rights. Today, the international legal system is beginning to address the concerns of the family and the need for justice within the family, and to develop norms that in many circumstances treat involuntary family separation as a violation of international law. Its approach, however, has been fragmentary and inconsistent, viewing family separation through particular lenses, such as children's rights or privacy, without establishing a coherent framework that brings these various perspectives together. In this article, we identify and compare the emerging principles of international law that relate to the issue of family separation and elaborate on them in a way that, we hope, will help to build such a framework. Our analysis focuses on several case studies, including Australia's long history of removing Aboriginal children from their parents, recent anti-polygamy policies in France, current immigration and child welfare laws in the United States, and mass family separation in crisis situations worldwide. Each of these varied cases reflects one or more of the many facets of the problem of family separation, including the cultural significance of the family, the difficulty of defining \"family,\" the balancing of interests and rights among different members of the family, and the balancing of these individuals' rights against the broader social, political, or economic interests of society or the state. In addition, each case tests the boundaries of possible international norms addressing this problem. Issues involving the integrity of families are difficult for international law to resolve because they involve a variety of competing values, values that are often both passionately held and deeply contested among and within cultures. These include the rights and interests of individual family members, including the special rights of children as well as the rights of adults to form relationships,

Sexual Slavery and the Comfort Women of World War II

Abstract: International law prohibited slavery well before the Japanese army created \"comfort stations\" during World War II. Slavery, correctly defined, is the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised. Slavery is often equated with forced labor or deprivation of liberty; however, sexual autonomy is a power attaching to the right of ownership of a person, and controlling another person's sexuality is, therefore, a form of slavery. The Japanese \"comfort system\" combined these forms of control. In addition to restricting its victims' freedom of movement, it forced them to perform sexual labor. Thus, it constituted a system of slavery that violated international law. The treaties and customary law that provide the basis for criminalizing slavery have used different language in their attempts to define the crime. As both the Special Rapporteur to the UN Commission on Human Rights and the ITCY have recognized, however, the language of the 1926 Slavery Convention, by focusing on the exercise of the rights of ownership, provides the best definition of slavery and one that encompasses sexual slavery. The recent Rome Statute of the International Criminal Court (ICC), on the other hand, adopts a definition of sexual slavery that emphasizes commercial trafficking and deprivation of liberty, rather than control over sexuality. Although the Rome Statute

The Fate of the Kyoto Protocol under the Bush Administration

Abstract: In August of 2002, the Times of London published an article on President George W. Bush's intention to skip the Johannesburg Earth Summit.' In the same article, the Times also added several statements Bush has made on the environment (\"I know that human beings and fish can coexist peacefully\") and stated that many have dubbed him \"the Toxic Texan.\"' 2 Bush's stance on the environment has not made him popular among Europe's press or its leaders, especially due to his policies on the Kyoto Protocol. The Kyoto Protocol (hereinafter \"Protocol\"), an agreement designed to protect the environment by setting targets for reducing greenhouse gas emissions by signatory countries, has been rejected by the Bush administration, prompting criticisms from environmental groups and European politicians.3 Much of this criticism suggests that Bush is acting unilaterally and ignoring the rest of the international community by not forging ahead with Kyoto. Is this true? Has the new administration altered U.S. policy on Kyoto and climate control, thereby isolating itself from the rest of the world? While many leaders in the European Union would suggest exactly this, the Bush administration's opposition to Kyoto is not so simple to disparage. This article will assess whether Bush's policies on the Kyoto Protocol have been conducted under a unilateral framework. Unilateralism, as opposed to multilateralsim, is defined as the unwillingness to work with other countries in solving a problem, and pursuing independent action instead. Bush has been repeatedly criticized for his unilateral actions in rejecting the Kyoto Protocol, but this does not withstand close examination. The Protocol, as drafted, was a flawed document, and Bush's decision to reject it was justified. Bush is especially reluctant to undertake any action that may harm the U.S. economy, and has instead proposed alternate market-based approaches. His subsequent with-

U.S. Peacekeeping and Nation-Building: The Evolution of Self-Interested Multilateralism

Abstract: In the days leading up to the 2000 presidential election, George W. Bush declared that, if elected, one of his first actions would be to withdraw American troops from peacekeeping operations in faraway places, especially U.S. troops in Kosovo and the former Yugoslavia. This did not happen. Two years later, the United States remains as ensconced in peacekeeping operations as it was during the Clinton administration. A combination of factors, foremost among them the September 11, 2001 terrorist attacks, has caused Bush to reconsider his unilateralist and isolationist stance and to remain committed to peacekeeping operations across the globe. Peacekeeping and nation-building operations, which require extensive logistical planning and military resources, have generally been the responsibility of international organizations, namely the United Nations. The U.N. authorizes peacekeeping operations on the principle that an impartial multilateral presence supporting a truce will increase the willingness of those in conflict to follow through with their negotiations. The U.N. adds legitimacy to a peacekeeping operation since \"action [is] taken on behalf of a global organization rather than on the basis of national or regional interests.\"' Unilateral action, to the contrary, is not only less desirable, but also less effective. Quite simply, solitary states do not have the financial wherewithal, military capacity, or political capital to effectively undertake such comprehensive and complex operations. In assessing the U.S. role in peacekeeping, the question, then, does not turn on whether it conducts peacekeeping missions in a unilateral or multilateral fashion, since the United States has never undertaken a peacekeeping operation on its own. Instead, the examination turns on the extent to which the United States participates in such operations at all, and whether U.S. cooperation is based on a traditional multilateral perspective, which this paper defines as a willingness to consistently support international peacekeeping forces in order to promote global peace and security, even when it does not necessarily serve immediate or vital U.S. interests.

Treaty Reservations and the Economics of Article 21(1) of the Vienna Convention

Abstract: The study of the use of reservation in multi-lateral treaties reveals two striking phenomena: 1) the law of reservations, enshrined in Articles 19-21 of the Vienna Convention on the Law of Treaties, favors the reserving state; and 2) the number of reservations attached to international treaties is relatively low in spite of that natural advantage. The article draws on game theory to explain the states' behavior concerning reservations to international treaties and posits that Article 21 (1) of the Vienna Convention is a good place to search for an explanation. This provision establishes the concept that reservations are reciprocal: between a reserving state and a state that objects to the reservation, that provision of the treaty will not be in force. Therefore, if a state wants to exempt itself from a treaty obligation, it must be willing to let other nations escape that same burden as well. By considering different kinds of treaties in light of various game theory models, the article considers why most treaties have relatively few reservations, whereas human rights treaties present a notable, and disappointing, exception to this general rule.

Constitutional Precommitments to Gender Affirmative Action in the European Union, Germany, Canada and the United States: A Comparative Approach

Abstract: This Article analyzes the constitutionality of gender affirmative action programs in the United States, Canada, Germany and the European Union. Further, it addresses how the existence of constitutional provisions promoting affirmative action affects public debate in those countries. Germany, Canada, and the European Union have constitutional commitments to at least the maintenance, if not the promotion, of gender affirmative action programs. The United States, on the other hand, has not made a firm, explicit precommitment to such programs in either its Constitution or constitutional jurisprudence.1 While Canada, Germany and the European Union have increasingly supported notions of substantive equality, positive governmental duties and indirect discrimination in their gender equality jurisprudence, American constitutional jurisprudence in this area has largely espoused contrary notions of formal equality, negative duties and purposive-only discrimination.2 Although constitutional

Dirty Names, Dangerous Money: Alleged Unilateralism in U.S. Policy on Money Laundering

Abstract: According to the International Herald Tribune, Clinton Treasury Secretary Lawrence Summers, \"did something unusual\" in mid-2000 when he \"agreed to join U.S. trading partners in placing Israel on a list of 15 countries that lacked adequate legal safeguards against money laundering.\" 2 The Tribune viewed the administration's refusal to make \"special deals for friends\"-by putting Israel in the \"unsavory company\" of transparency-averse Cayman Islands, Panama, Lebanon, Liechtenstein, the Philippines and Russia-as an indication of a high degree of U.S. commitment on the laundering issue. Meanwhile, regulatory reform in blacklisted countries appeared to be occurring so quickly that the U.S. Treasury was credited with catalyzing a small turning point in the fight against global corruption. Here was an indication of just how much could be accomplished \"when the leaders of the global economy decide to take a problem seriously.\" 3

Trading Rights and Wrongs: The 2002 Bush Steel Tariffs

Abstract: President Bush's trade policy vis-A-vis multilateral trade institutions, at a cursory glance, might seem to be in line with previous trade policy under President Clinton. The U.S. agenda pursued at the latest round of liberalizing trade talks at the Doha Round of the World Trade Organization (WTO) in fall 2001 appears to comport with Clinton's agenda. However, a closer examination of Bush's policy choices reveals this conclusion to be false. Clinton's commitment to multilateral trade organizations and their processes for dispute resolution has been abandoned by Bush. In particular, Bush's trade policy conflates domestic and foreign issues, resulting in a domestic-centric policy. The differences between the administration's rhetoric of promoting free trade and overt domestic political campaigning are difficult to reconcile. Based on the steel tariffs that the administration levied in March 2002, one might conclude that Bush is playing the \"perpetual candidate\" by emphasizing policy goals aimed uniquely at domestic political concerns. These steel tariffs were enacted purportedly in order to protect the domestic U.S. steel industry and its workers against foreign dumping. This tariff is a direct protectionist measure President Clinton was unwilling to impose without first submitting dumping claims to a multilateral dispute settlement process. Moreover, these steel tariffs reveal a larger trend-that this administration is willing to dictate foreign policy to its trading partners on more adversarial terms than the Clinton administration. This administration has devalued foreign trade by clearly favoring domestic concerns instead. Added to this stance is the powerful device of associating trade policy with national security in light of the September 11, 2001 attacks. The domestically-focused policy, which gives trading partners reduced value in decision-making equations, is a result of a delegation-based decision-making process. The steel tariffs represent an unabashed unilateralist approach to trade policy. Instead of using the mechanisms of the World Trade Organization, this administration has relied upon domestic legisla-

NAFTA and the FTAA: Regional Alternatives to Multilateralism

Abstract: As the above quotes indicate, the Bush administration places great emphasis on trade, viewing it not only as a means to economic strength, but also as a way to promote national security. While past presidents have also touted the benefits of trade, Bush is in a unique position to make trade liberalization a reality. First, Bush was recently granted Trade Promotion Authority3 (TPA) or \"fast track.\" With TPA, presidents can negotiate trade deals that Congress must then ratify or reject, but which they cannot amend. TPA makes enacting trade agreements much easier. Second, after the September 11, 2001 terrorist attacks, Bush enjoys tremendous power over all matters relating to foreign policy. By linking trade to U.S. security, Bush has effectively silenced Congressional dissent on the issue by making it much more difficult for Congress to reject such deals. Trade liberalization, therefore, should be within Bush's reach. After all, Bush's predecessor, Bill Clinton, led a multi-year WTO Round and helped bring about two large multilateral agreements without TPA and despite facing the

The Bush Administration's Response to the International Criminal Court

Abstract: The Bush administration, with the backing of Congress, has made sustained international efforts to keep the International Criminal Court (\"ICC\") from attaining any functional jurisdiction over the United States or its citizens. It has taken unprecedented legal steps, wielded its veto power in the Security Council, and negotiated bilateral treaties limiting the extradition of U.S. citizens to the ICC. This aggressive diplomacy against the ICC's jurisdictional reach differs substantially from the more ambivalent approach adopted under President Clinton. While the Bush administration seeks the support of other nations in achieving its aims, these aims are themselves unilateral attempts to shield American citizens, policies, and sovereignty from international oversight. Very little scholarship has looked systematically at the Bush administration's behavior with relation to the ICC.' This Article attempts to fill that gap. I first examine relevant events prior to President Bush's inauguration, then present a chronology of events during the first two years of his administration. Following this factual discussion, I analyze U.S. objectives related to the ICC and argue that the Bush administration has pursued these objectives with aggressive unilateralism. I consider what factors motivated the change in its approach from that of the Clinton administration. Finally, I evaluate the success of the administration's strategy in achieving U.S. objectives. I argue that while the Bush administration's aggressive unilateralism accomplishes U.S. objectives successfully in the short term, it is a difficult long-term strategy to sustain. The administration's approach surrenders U.S. influence over the ICC, thus requiring sustained brinkmanship to protect U.S. autonomy, and curtails U.S. ability to bring war criminals to justice in the future.

U.S. Funding of the United Nations: Arrears Payments as an Indicator of Multilateralism

Abstract: This article examines the Bush administration's attitude toward multilateralism with regard to U.S. arrears payments to the United Nations. Participation in the activities of the United Nations is an important part of any examination of a nation's approach toward multilateral activities as the organization offers a unique forum for making decisions in concert with other member states. The United States has always been responsible for funding a major portion of the U.N. regular budget along with other U.N. agencies and activities; however, this role has proved controversial within U.S. domestic politics. Over the last twenty years the United States accumulated large arrears to the U.N. These policy decisions are relevant to an analysis of multilateralism because large debts to the U.N. inhibit its function as a forum for multilateral decision making. Thus, multilateralism can be understood as not merely participation in U.N. activities, but also as actions that facilitate the effectiveness of the U.N. Many of the details regarding U.S. funding of the U.N. are largely obscured from public debate. Press reports vary widely in the information presented, whereas official U.N. sources tend to release data late and in different and sometimes inconsistent versions.' In addition, U.S. arrears include contributions to

Changing Direction on Non-Nuclear Arms Control - American Exceptionalism, Power, and Constancy

Abstract: In the atmosphere of post-September 11, 2001 America, many perceived a wellspring of support, at both the popular and political levels, for global multilateral cooperation to confront the international problem of terrorism. But this well seems to have run dry, or as one commentator phrased it, \"[it was as if there had been a bolt of lightning that brilliantly and briefly illuminated the landscape without changing it.' '3 Indeed, there is a growing undercurrent of belief amongst political leaders in both Congress and the Executive that the United States has ceded too much of its sovereignty to international treaty regimes and organizations.4 For them, withdrawal from the Biological Weapons

Feminists in International Human Rights: The Changer and the Changed

Abstract: In composing an Afterword for this symposium, I have often had the feeling expressed by Justice Arbour: that I am here under false pretenses.' As a feminist theorist whose focus is largely domestic, I am more like a student of the riveting international developments described here than an informed commentator on them. In my comments, however, I will try to use this domestic perspective as a lens through which to assess the emergence of international humanrights norms that address crimes against women. These norms can be understood, in part, as the product of domestic feminist efforts to expose the prevalence and significance of gender-based violence. But, while this development is cause for satisfaction, feminists must recognize that we need to learn from, as well as contribute to, the domain of international human rights. It is heartening, from a feminist perspective, to see many of the norms for which feminist advocates have struggled in a range of domestic contexts emerging as constitutive norms of international human rights. The notion, so thoughtfully explored by Kelly Askin 2 and Sherrie Russell-Brown, 3 that international tribunals should understand rape as an instrumentality of genocide is one powerful example. Askin and Russell-Brown suggest that we should view rape not simply as a "spoil of war"-that is, as a lamentable product of male exigencies-but also as a violation of the integrity of the victim and as a means to the destruction of the community through the debasement of the individual. This approach builds on the insights developed in feminist struggles with intranational systems of criminal justice. Similarly, the idea that the plight of the

In the Business of Development: Development Policy in the First Two Years of the Bush Administration

Abstract: This article discusses the ways in which President George W. Bush's administration has, in the first two years of its tenure, worked to alter existing models of U.S. development spending to allow for increased U.S. discretion over the substance and quality of development programs. It additionally discusses the modes of aid-namely, bilateral commitments and informal partnership arrangements-that the administration has favored. This discussion ultimately suggests that the current administration has designed its actions and policies to ensure that U.S. interests-both public and private-are significant beneficiaries of American development spending. By privileging bilateral aid and partnership arrangements over cooperative, multilateral models of development spending, the administration threatens to radically reshape previous models of American development spending in the image of the corporate form.

The United States and the World: Changing Approaches to Human Rights Diplomacy under the Bush Administration

Abstract: This article focuses on the Bush administration's attempts to promote human rights in other countries over the first two years of its term.' According to the State Department Bureau for Democracy, Human Rights, and Labor's [DRL] statement of its principles, core priorities with respect to human rights have not changed significantly between administrations. However, because human rights as a policy priority itself is nearly always tied in with other foreign policy priorities such as security, environment, trade, oil, and drugs, the DRL's priorities do not necessarily reflect the policies of the administration under which it operates. This article offers snapshots of some pertinent actions and developments that reflect the ways in which the Bush administration, including but not limited to the DRL, has taken up or discarded inherited policy options and mechanisms for human rights diplomacy. It further explores to what extent human rights objectives, promotion methods, and enforcement mechanisms have changed. A review of the government's actions under the Bush administration will show that the United States has compromised human rights priorities in favor of the war on terror. The Bush administration accords a reduced weight to the

Between Empire and Community: The United States and Multilateralism 2001-2003: A Mid-Term Assessment

Abstract: In President Eisenhower's inaugural address given on January 20, 1953, he referred numerous times to the United Nations and to the depth and importance of the United States commitment to the system of multilateral institutions created following World War H1. Fifty years later, however, there is an almost constant barrage throughout the world of critical commentary on the U.S. government's approach to a wide variety of international issues. Certain words repeat in this torrent of opinion: Unilateralist (as opposed to multilateralist), Isolationalist (as opposed to internationalist), Empire (as opposed to community), Power (as opposed to law). These terms usually are not particularly specified. Moreover, they arise in a wide variety of contexts. On one day, the point of discussion is climate change and the U.S. rejection of the Kyoto Protocol. On another day, the topic could be trade and vaccines, biological weapons, human rights or terrorism. In mid-March 2003, as this volume goes to press, the dominant multilateral discussion concerns the Security Council and the question of the use of force to disarm Iraq. To emphasize only that important question, however, is to overlook the wide range of multilateral institutions and settings in which the United States participates, and the ways in which that participation has been controversial over the last two years. The basic underlying assertion in this muddy torrent is that the United States has changed its attitude and practice toward multilateralism dramatically over the first two years of President Bush's administration. The United States may have not been particularly internationalist in previous administrations, but something has happened, and that something is qualitatively different than that before. With this context in mind, the University of California at Berkeley in the Fall of 2002 undertook a mid-Presidential term assessment of the position of the

The Implications of Crosby for Federal Exclusivity in Foreign Affairs

Abstract: There is much in what Professor Spiro has said with which I agree, but some with which I disagree. To make my remarks more interesting, I thought I would focus on the areas of our disagreement. I had anticipated, of course, that John Yoo would be here and, in preparing my remarks, had in mind what he might say. So, you may hear in my remarks responses to the ghostly voice of John Yoo whose actual presence is, of course, much missed here today. At the risk of oversimplifying Professor Spiro's remarks about Crosby, I think that he, and perhaps some others, believe that Crosby is a rather insignificant decision, in part because the Court ruled on narrow statutory preemption grounds rather than on the broader constitutional dormant power grounds that the lower courts relied upon. In particular, there was a good deal of anticipation about whether the Court would limit the scope of, or eliminate altogether, the dormant foreign affairs preemption doctrine as articulated in the Zschernig case' and would begin a process of revising the Court's traditional attitude towards federal-state relations in the area of foreign affairs. If I understand Professor Spiro correctly, he does not think that the Crosby decision has any particularly significant implications for either of these questions. In his view, Crosby should not be read as a strong reaffirmation of the Court's traditional endorsement of federal exclusivity in the realm of foreign affairs. Nor does it in any way suggest the continuing vitality of dormant foreign affairs preemption. Normatively, I understand him to argue that dormant foreign affairs preemption is undesirable and that perhaps it would have been better had the Court faced the dormant power question and forthrightly overruled Zschernig and its progeny. I disagree with all of these claims, although I am not sure whether Professor Spiro made all of them in exactly the way I have put them. I think a realistic appraisal of Crosby suggests that, notwithstanding the Court's recent and aggressive moves to recalibrate the federal-state balance on the domestic front, the Court remains fully wedded to the traditional view that foreign affairs are largely, if not exclusively, the domain of the federal government. I also think that Crosby suggests that dormant foreign affairs preemption is still a vital, if limited, doctrine.

Iraq: At the Apex of Evil

Abstract: In 1999, Hubert Vedrine, then Foreign Minister of France, coined a new term that has become popular among international relations commentators.1 Discarding the term \"super-power\" as a Cold War anachronism, Vedrine described the United States as a hyper-puissance, or \"hyper-power. ' '2 No other country in the history of the world, Vedrine said, had amassed so much power so completely-militarily, politically, and culturally. 3 While it is tempting to conclude that the French Foreign Minister was expressing awe for the United States, his real purpose was to suggest that such an accumulation of power in the hands of one country presents dangers for all the rest. Vedrine feared the capacity of the United States to enforce its will on the world without reference to the opinions of its allies. France and the other \"great powers,\" Vedrine urged, must act as a counter-weight to the hyper-power.4 Vedrine's hyper-power concept captures an essential truth: At least according to conventional measures of national power, the United States is unsurpassed and is poised to remain so for a long time to come.5 As the scholar Joseph Nye has noted, \"not since Rome has one nation loomed so large above the others.\" 6 But, as described above, Vedrine and others view the disproportionate nature of