Constitution Day

By Melissa Bernstein for the Quinney Library Blog -

Did you know that September 17, 2014 marks 227 years since the U.S. Constitution was signed?  It is celebrated as Constitution Day and “commemorates the formation and signing of the U.S. Constitution by thirty-nine brave men on September 17, 1787, recognizing all who, are born in the U.S. or by naturalization, have become citizens.”  Find out more information about Constitution Day here and be sure to check out the National Constitution Center’s website here.

The Rule of Law in a Time of Lawlessness

By Brenda Weinberg for GlobalJusticeBlog.com – 

We often wonder how enforceable international laws actually are, especially when there has seemingly been little to no incentive to comply or punishment for noncompliance. From blatant human rights violations in North Korea and China to attacks on sovereignty and self-determination by Russia in Ukraine, international governing bodies like the United Nations seem to have little effect in forcing compliance with international law. But the International Criminal Tribunal for the former Yugoslavia (ICTY) has become an example of just how effective international law can be, and it illustrates the power that international treaties can bestow upon signatory nations. The ICTY claims that it has spearheaded the shift from impunity to accountability, brought thousands of victims to justice and given them a voice, and strengthened the rule of law.[1] A body of the United Nations, the ICTY prosecutes serious crimes committed during the wars in the former Yugoslavia, such as genocide, crimes against humanity, and violations of the laws or customs of war, and tries their perpetrators. The most infamous of those crimes are in relation to the Srebrenica Massacre and the Siege of Sarajevo in which militaries systematically killed ethnic Croats, Bosniaks (Bosnian Muslims), and Serbs.

The ICTY has been supported fully by the European Union, which has demanded full cooperation with the ICTY from its potential candidate countries. Due to the economic power of the European Union, each of the nations of former Yugoslavia have acceded as members (Slovenia and Croatia), become candidate countries (Macedonia, Montenegro, and Serbia), or become potential candidate countries (Bosnia and Herzegovina and Kosovo). Albania, Bosnia and Herzegovina, Croatia, and Macedonia have been subject to the Stabilization and Association Process (SAP) to work toward accession into the EU, and cooperation with the ICTY became the centerpiece for those agreements.[2][3][4][5][6]

The accession of Croatia into the EU in 2013 has been a shining example of the success that these Stabilization and Association Agreements (SAA) have had in partnering with the ICTY to bring those accused of international crimes before the court. The European Council postponed opening negotiations for Croatia in March 2005 in the absence of a confirmation of full cooperation with the ICTY; specifically, the chief prosecutor claimed that Croatia failed to cooperate with the capture of Croatian fugitive Ante Gotovina, who served in the Croatian Homeland War as a general and had been in hiding since 2001.[7] Negotiations were officially launched in October 2005 after a positive report by the chief prosecutor, and Gotovina was eventually arrested in Spain in December 2005.[8]

As a war that drew lines based on nationality and ethnicity, it is no surprise that nationalists wished to protect and harbor those charged with war crimes. Public support for indictees caused resistance against the ICTY in each of the former Yugoslav countries, but especially in Serbia. Radovan Karadžić, President of Republika Srpska and Supreme Commander of its armed forces during the war, spent more than a decade as a “fugitive,” while openly practicing psychology in Belgrade under a fictitious name. After his arrest in July 2008, about 15,000 Serbian nationalists demonstrated in protest in Belgrade prior to his extradition to the ICTY in The Hague.[9] Many Serb nationalists still regard Karadžić as a hero and a defender of ethnic Serbs in Bosnia. Despite public sentiment in support of men like Karadžić, the pressure of the international community has forced cooperation with the ICTY.

Ultimately, the ICTY has proven incredibly successful. The official website offers court documents, interactive maps, court schedules, videos, and other information to the public, demonstrating the judicial process and offering transparency.[10] Since its establishment in 1993, the tribunal has indicted 161 individuals for serious violations of international humanitarian law, and all 161 have been arrested; Goran Hadžić became the last fugitive to be captured in July 2011. So far, the tribunal has concluded proceedings for 141 accused, and the remaining 20 are either currently at trial or before the appeals chamber. Together with the International Criminal Tribunal for Rwanda (ICTR), which has completed its work at the trial level for 90 of the 93 accused, with just six fugitives still at large, the ICTY has shown that international law is not simply a group of unenforceable treaties ignored by nations refusing to comply.[11]

Brenda Weinberg is a JD Candidate, Class of 2016. Woolston’s entry to the GlobalJustinceBlog is part of an assignment for the course International Criminal Law, taught by Professor Wayne McCormack.

 

  1. “The Tribunal’s Accomplishments in Justice and Law.” The International Criminal Tribunal for the former Yugoslavia. Last accessed September 14, 2014. Retrieved from http://www.icty.org/x/file/Outreach/view_from_hague/jit_accomplishments_en.pdf.
  2. Stabilisation and Association Agreement, European Communities-Serbia. Last accessed September 14, 2014. Retrieved from http://ec.europa.eu/enlargement/pdf/serbia/key_document/saa_en.pdf.
  3. Stabilisation and Association Agreement, European Communities-Croatia. Last accessed September 14, 2014. Retrieved from http://www.esiweb.org/pdf/croatia_croatia_sap_report_2002.pdf.
  4. Stabilisation and Association Agreement, European Communities-Albania. Last accessed September 14, 2014. Retrieved from http://ec.europa.eu/enlargement/pdf/albania/st08164.06_en.pdf.
  5. Stabilisation and Association Agreement, European Communities-Macedonia. Last accessed September 14, 2014. Retrieved from http://ec.europa.eu/enlargement/pdf/the_former_yugoslav_republic_of_macedonia/saa03_01_en.pdf.
  6. Stabilisation and Association Agreement, European Communities-Bosnia and Herzegovina. Last accessed September 14, 2014. Retrieved from https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/228868/7743.pdf.
  7. “EU Postpones Croatia Entry Talks.” BBC News. March 16, 2005. Retrieved from http://news.bbc.co.uk/2/hi/europe/4351357.stm.
  8. Imbarlina, Elizabeth, Ed. “Croatian Accession to the EU: Political Battles and Legal Challenges” Jurist. May 16, 2012. Retrieved from http://jurist.org/dateline/2012/05/dora-rotar-croatia-eu.php.
  9. http://www.icty.org/
  10. Flintoff, Corey. “Karadzic: War Criminal or Nationalist Hero?” NPR. July 22, 2008. Retrieved from http://www.npr.org/templates/story/story.php?storyId=92769228.
  11. “Status of Detainees.” Internaltional Criminal Tribunal for Rwanda. Last accessed September 14, 2014. Retrieved from http://www.unictr.org/Cases/StatusofDetainees/tabid/202/Default.aspx.

Prostitution, Child Predators and the Internet

By Ronda Woolston for GlobalJusticeBlog.com -

Like many facets of life, the advent of the Internet and related technology is changing the sex industry and how child sex predators (hereinafter “predators”) can be tracked down. Prostitutes can now use the Internet not only to advertise their services but also to avoid danger. While predators have found ways to use the Internet to find victims in chat rooms and abuse children via web cam sex tourism, for those seeking to stop predators the Internet is a major piece of new technology that can help to track down and stop predators.

Effects on Prostitution

Prostitution is known as the “oldest profession” but the advent of the Internet has produced some significant changes for those who choose to become prostitutes.[1] For those prostitutes that have access to the Internet and the know-how to utilize it, it has helped them to avoid risks that in the past were considered inherent to the profession such as: sexually transmitted infections, rape, and other violence.[2] Prostitutes that have access to the Internet are potentially safer because they have the ability to use online forums where they can share and receive tips from other prostitutes about staying safe and avoiding problem clients or vouching for past clients they consider safe.[3] Prostitutes can even subscribe to services that allow customers to pay for background checks before meeting, and even share medical information.[4] This technology has allowed prostitutes more freedom to work solo while remaining relatively safe, thereby avoiding situations that could become exploitive and controlling.[5] An additional benefit to the public is that when prostitutes utilize the Internet to gain clients it takes interactions between prostitutes and “Johns” off the street and away from third parties.[6]

As the Internet becomes a bigger part of prostitution, it may become physically safer for prostitutes but much more can be done to protect the vulnerable people in that industry. For example, protection could be enhanced by legalizing prostitution and maintaining the illegality of a third party, like a pimp or trafficker, from benefitting financially from a prostitute’s work. Prostitution will never go away no matter what methods governments try to use to stop it.[7] The changes brought on by the use of the Internet in prostitution will greatly benefit adults who willingly engage in prostitution, but it is unlikely to help exploited children. The Internet is more likely to allow those who control them or are seeking victims to take their activities off the streets, where it is more visible, and onto the Internet where they are able to exploit children with more anonymity. The Internet, however, does provide some new means of tracking down predators who use the Internet to locate (via chat rooms) and abuse (via “webcam sex tourism) child victims.

Effect on Efforts to Catch Child Sex Predators

Predators have learned that the Internet is a potential source of victims. This is evident in their use of chat rooms to search for potential victims and in the rise of webcam sex tourism. Groups are working to end this and are developing technology to catch predators online, including technology that mimics a young girl in chat rooms, and in the creation of an incredibly lifelike avatar of a young Filipina girl.

1. Chat Rooms

When using chat rooms predators attempt to establish relationships with and groom potential victims.[8] Law enforcement has been aware of this for some time and will instigate sting operations by using officers to pose as minor children online and engage with others with the intent to attract and apprehend predators.[9] This practice has obvious challenges in that it may be difficult for fully mature adult law enforcement officials to sound convincingly like minor children, or as budgets are stretched agencies may not have the officer hours to devote to web chatting. New technology, however, could be used to solve that problem. Researchers at the University of Deusto in Spain have created an “artificially intelligent chatbot” named Negobot that is designed to sound like a young and vulnerable girl.[10] Negobot is not currently available to law enforcement but could be used successfully by them in the future. Negobot identifies predators through conversations and is designed to enter web chats in a “neutral” mode, discussing only general subjects like music or movies, and will stay in that state unless the other user brings up sexual content.[11] Once this happens Negobot switches to “possibly pedophile” mode and begins to share personal information, like a desire for companionship or trouble at home.[12] If the other user intensifies the sexual content of the chat, the Negobot will switch to the final mode of “allegedly pedophile” and will attempt to keep the user in the conversation for as long as possible and will share fake private information and suggest a physical meeting.[13] At this point law enforcement could then apprehend the predator when he attempts to meet up with the minor “girl.”

Negobot has great potential as a law enforcement tool; however, there are some issues that need to be overcome before it could be used in the United States to successfully find and prosecute predators that search for targets online. Due to the way Negobot is designed, it will discourage any conversation partners from ending the chat session and will try to guilt users into continuing the conversation by saying that it is lonely and “looking for affection.”[14] In addition to this, if conversation partners ignore Negobot, the program will attempt to recapture their attention by eventually offering sexual favors.[15] This method could be considered entrapment, and therefore, unlikely to be used successfully in court.[16]

These shortcomings of Negobot can be overcome through design changes and Negobot could be enhanced in a way that would allow it to be used by law enforcement to successfully track down and prosecute predators that search for victims online. The Negobot creators have already announced plans to modify Negobot’s programming.[17] These modifications will include the ability to recognize irony and to monitor linguistic trends so that it will continue to sound young and vulnerable.[18] With the ability to enhance and change Negobot, it is entirely possible that the technology could be modified to operate within accepted legal frameworks in different jurisdictions around the world, including the United States.

2. Webcam Sex Tourism

The problem of sexual tourism is well known and, unfortunately, has been happening for as long as there have been those willing to pay to abuse children. But with the advent of the Internet, predators have a new way to torment and exploit children: webcam sex tourism. According to advocacy group Terre des Hommes webcam sex tourism involves “men from rich countries pay[ing] children in poor countries to perform sexual acts in front of webcams.”[19] Law enforcement has struggled to fight against this rising new trend because, unlike a chat room where there are only typed words on a screen, it is impossible for an adult to pretend to be a child in order to lure predators into prosecutable statements or actions. This problem seems to have been overcome by the international organization Terre des Hommes, which created a sophisticated avatar program named Sweetie.[20] The avatar was created to resemble a 10-year old Filipina girl that speaks and moves like a real child but is in fact a computer program controlled by an adult that can be operated out of their offices in Amsterdam or anywhere with Sweetie technology.[21] When Terre des Hommes launched their 10-week sting using Sweetie in 2013, men were contacting Sweetie within seconds of launching the program online; a sign of how pervasive this problem is.[22] By the time their sting concluded over 20,000 men had contacted Sweetie and 1,000 offered her money to take off her clothes and perform sex acts on webcam.[23] Researchers then used evidence such as social media and Skype to identify the predators and handed the information over to law enforcement.[24] Of the 1,000 men who offered Sweetie money 103 were from India, 110 from the UK, and 254 from the United States.[25]

It is unclear whether law enforcement agencies will utilize Sweetie or similar programs to catch predators involved in webcam sex tourism. Europol, the European policing agency, stated it would look at the information passed to them by Terre des Hommes, but also expressed reservations about Terre des Hommes’ work and stated that “[w]e believe that criminal investigations using intrusive surveillance measures should be the exclusive responsibility of law enforcement agencies.”[26] In all events Sweetie will not be used again, Terre des Hommes feels that Sweetie has done her job by making predators aware that they can easily be caught when engaging in webcam sex tourism and hopefully saving some children from being forced into the new online sex trade.[27]

While it is disappointing that the work of Terre des Hommes and the use of avatars to catch child predators is not being embraced by the law enforcement community, it does provide some hope for the future in curtailing the rise of webcam sex tourism. If predators know that technology like Sweetie exists perhaps they will be too scared to attempt to engage with children online via web cam.

Ronda Woolston is a JD Candidate, Class of 2015. Woolston’s entry to the GlobalJustinceBlog is part of an assignment for the course International Criminal Law, taught by Professor Wayne McCormack.

 

[1] Salt Lake City was home to a thriving brothel district for many of its early years, and like all major cities continues to grapple with illegal prostitution. Jeffrey Nichols, Prostitution, Polygamy, and Power: Salt Lake City, 1848-1918 (2008).

[2] More Bang For Your Buck: How New Technology is Shaking Up the Oldest Business, The Economist, Aug. 9, 2014.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] A Personal Choice, The Economist, Aug. 9, 2014.

[8] Richard Wortley & Stephen Smallbon, Comm’n Oriented Policing Services, U.S. Dep’t of Justice, No. 41, Child Pornography on the Internet 10 (2010)

[9] Id. at 17.

[10] Carlos Laorden, Patxi Galan-Garcia, Igor Santos, Borja Sanz, Jose maria, Gomez Hidalgo & Pablo G. Bringas, Negobot: A Conversational Agent Based on Game Theory For the Detection of Paedophile Behaviour (2013). See also, Jillian Scharr, Controversial ‘Lolita’ Chatbot Catches Online Predators, NBC News (Jul. 13, 2013), http://www.nbcnews.com/tech/innovation/controversial-lolita-chatbot-catches-online-predators-f6C10622694.

[11] Laorden, supra note 10, at 6.

[12] Id. at 5.

[13] Id.

[14] Id.

[15] Id.

[16] Scharr, supra note 10.

[17] Laorden, supra note 10, at 7-10.

[18] Id.

[19] Stop Webcam Child Sex Tourism, Terres des Hommes (Nov. 4, 2013), http://www.youtube.com/sweetie.

[20] Terre des Hommes, International Federation, (Sep. 8, 2014, 8:39 PM), http://www.terredeshommes.org.

Terre des Hommes detailed their approach in Webcam Child Sex Tourism, Becoming Sweetie: A Novel Approach to Stopping the Rise of Webcam Child Sex Tourism, 2013.

[21] Angus Crawford, Computer-Generated ‘Sweetie’ Catches Online Predators, BBC (Nov. 5, 2013), http://www.bbc.com/news/uk-24818769.

[22] Id.

[23] Id.

[24] Id.

[25] Id.

[26] Id.

[27] Id.

Finally Sitting at the Grownups’ Table

By Jim Holtkamp for EDRblog.org.

Factory in Zhengzhou, China. Image ©Flora-Victoria, courtesy of Wiki Commons

Last March I had the once-in-a-career experience of meeting with senior officials of the China National Peoples’ Congress (NCP) and the Ministry of Environmental Protection (MEP) to discuss strengthening laws to enforce environmental standards. On March 5, Premier Li Keiqang “declared war on pollution” at the opening of the annual meeting of the NCP. The NCP staff and the MEP were tasked with presenting to the central government measures to strengthen environmental laws for approval by the central government and ratification by the NCP.

The NRDC China Project facilitated a meeting between the NCP, MEP and two lawyers from the American College of Environmental Lawyers, Professor Robert Percival of the University of Maryland Law School and myself. David Pettit, a senior environmental lawyer for the NRDC in Santa Monica also joined us.

Our meetings were devoted to discussions of how civil penalties are assessed in the U.S. for environmental violations, including how to prove daily violations (and thus daily penalties), monitoring, inspecting and reporting. The NCP and MEP staff were well-prepared and very committed to moving forward with a strong environmental enforcement regime. Their enthusiasm was palpable. They had clearly endured years of frustration at their inability to enforce even the existing laws. Now, they were like the children who finally get to sit at the grownups’ table at Thanksgiving, except that in this case, the children are as smart as, or smarter than the grownups.

After our meeting with the NCP and MEP senior staff, we met with Judge Yu Xiaohan of the Chinese Supreme People’s Court. Judge Yu wanted our perspective on valuing and adjudicating damages to the environment. Judges in China are usually loath to go forward with lawsuits from individuals against either the government or an industrial entity claiming damages to water, air, fisheries or other environmental resources. Judge Yu explained to us that a Chinese judge has no legal obligation to take a case, and the political risks of taking on the government or a strong industrial interest are substantial. Judge Yu is a younger judge, and hopefully represents a newer generation interested in tackling these issues through available legal processes and effecting changes to the processes where necessary. He told us that his goal is to work with his fellow judges to systematize valuation of environmental damages and to provide more legal and political cover when they take on these cases.

In April, the NCP approved the central government’s changes to the environmental laws, incorporating many of the measures we discussed. The stronger enforcement, including the authority to assess significant daily penalties for continuing violations of standards, will go into effect at the beginning of 2015. In the words of Wang Yan, Director, NRDC China Environment and Governance Project,

We are all so incredibly excited – over the moon, really – about the new provisions after the years of advocating for efforts in those areas. We expect that more effective enforcement approaches and mechanisms will be put in practice soon, and look forward to working with you in this regard in the future.

It remains to be seen if the central government has the political will to implement these measures in the face of strongly entrenched local and business interests, but it is a major step forward for a country in which people are weary of being poisoned simply because they eat, drink and breathe.

James A. Holtkamp is a partner at Holland & Hart LLP resident in the Salt Lake City Office. He is an adjunct law professor at the University of Utah College of Law and a Stegner Center Senior Fellow. He received his B.A from Brigham Young University and his J.D. from George Washington University. He served on the staff of the U.S. Senate Watergate Committee and as an attorney for the U.S. Department of the Interior before entering private practice.

Degrade and Destroy

By Amos Guiora for the Global Justice Blog.

[Note: This Global Justice Blog post is a counterpoint to a post earlier in the week by Professor Wayne McCormack titled, "Obama-Bashing Lets the Jihadists Suck Us In Again." Professor Guiora also asked that we link to President Obama's comments on ISIL dated September 10, 2014]

 

President Obama’s promise to the American people that he intends to “degrade and destroy” ISIS fails rhetorically, arguably falls short legally and remains to be seen whether effective substantively.

There is no substance behind the phrase, only empty sloganeering. To assume that a terrorist organization, whose barbarism is stunning, can be destroyed by air attacks—regardless of their quantity and quality—is to fundamentally misunderstand the essence of terrorism. A terrorist group, deeply committed to an extremist interpretation of religious text, will be not be “degraded” much less “destroyed” by air attacks.

My colleague and good friend, Professor Wayne McCormack criticizes President Obama for being “goaded” into a war that gives “jihadists another recruiting tool”. To cast them asunder as “psychopaths” and “thugs”, as Professor McCormack does, is to underestimate the religious extremism that is the crux of ISIS. After all, ISIS’s specific goal is clear: to establish a broader Islamic caliphate.

In referencing and emphasizing the beheadings both President Obama and Professor McCormack miss the essence: ISIS is a terrorist organization deeply committed to a particular worldview predicated on an extremist interpretation of religious text that goes far beyond the unimaginably barbaric killing of two US journalists.

President Obama seemingly spoke the truth recently when he admitted his Administration did not have a “strategy” regarding ISIS. The admission was revealing because it unequivocally demonstrated President Obama did not consider ISIS a threat worthy of a strategy. That is telling.

To conclude, as the President seemingly did, that ISIS poses a threat only after the beheadings is remarkable: ISIS did not become more dangerous after two US journalists were murdered. ISIS has been an important and viable threat since it began its determined march through Iraq and Syria with future destinations readily predicable.

However, in response to this clear threat the President offered few specifics; those he did, were unconvincing. The President failed to define the term “destroy”; does he genuinely believe that ISIS will be defeated by US led coalition limited to air strikes and drone attacks? As these words are written it is unclear both as to the composition of the Coalition members and the nature and degree of their involvement.

Similarly, the President failed to make a compelling argument regarding the legality of his decision. It is unclear to what extent the self-defense, as articulated in Article 51 of the UN Charter, applies to ISIS; similarly, it is uncertain whether the Authorization to Use Military Force, enacted by Congress in 2002, applies to the decision to “degrade and destroy” ISIS. The failure to clearly articulate a legal argument was noteworthy for a President whose Administration is inherently cautious, circumspect and steeped in words.

Finally, what is the end game? How will effectiveness be defined? What are the benchmarks? What will be the decision points for determining that an air only policy is ineffective and that the few hundred advisors need to become a significant number of “boots on the ground”?

There are two ways to look at the failure to address these points, one positive the other negative. The positive: the President has a blue print but prefers not to share with the public or with ISIS. That is reasonable and understandable if truly the case. The negative: the Obama Administrations’s late realization that ISIS poses a threat and relying, as does Professor McCormack on the beheadings as the basis for action, forced him to speak before having a genuine plan in place.

ISIS is not comprised of thugs or psychopaths; ISIS wants to establish a broad Islamic caliphate in the Arab world. That directly impacts US interests. That goes far beyond beheadings; to emphasize the beheadings is to deliberately mis-articulate the threat posed by Islamic extremism as practiced by ISIS. The President failed to compellingly articulate his vision, plan and rationale. This is not the time for rhetoric; this is the time for a strategy based on the law, recognition of the essence of the threat and clear articulation of reasonable goals and aims.

The phrase “degrade and destroy” is empty; similarly, to suggest these are merely “thugs” is to underestimate the threat posed by a terrorist organization dedicated to the establishment of an Islamic caliphate.

Amos Guiora is a Professor of Law and Co-Director of the Center for Global Justice at the S.J. Quinney College of Law, the University of Utah. Guiora who teaches Criminal Procedure, International Law, Global Perspectives on Counterterrorism and Religion and Terrorism incorporates innovative scenario-based instruction to address national and international security issues and dilemmas.

Lexis Advance New Streamlined Interface

By Melissa Bernstein for the Quinney Library Blog -

Lexis Advance released a new streamlined interface yesterday (September 8).  The new interface is more intuitive and eliminates the tabbed results featured in the prior interface.  Alerts, tables of contents, browsing and filters have been enhanced.  Interested in more information?  There are helpful videos on the Lexis website. Contact a librarian if you have any questions.

Obama-Bashing Lets the Jihadists Suck Us In Again

by Wayne McCormack for the Global Justice Blog.

[Note: I have three close colleagues and friends with on-the-ground combat experience on whom I tried a draft of this essay. I have never been in a military uniform and never fired a weapon. My friend and colleague Amos Guiora disagreed with my rant but promised to write a response after the President's speech on September 10. Then my friend and colleague Jim Holbrook, a veteran grunt from the jungles of Vietnam, advised me to "re-check the tone." At first, I concluded that I had no credibility as a nonveteran; then I realized that maybe I'm the perfect observer to react with outrage when I see others being put in harm's way for no discernible (i.e. strategic) gain. Whatever the truth of those observations, I have decided to publish this in advance of the President's speech. Why? I suppose it's just to clear my own conscience that I didn't stand by silently to watch another debacle unfold. So in the end, this is really just selfish behavior on my part – but I did try to tone it down.]

Read Professor Guiora’s counterpoint post »

 

All the ranting over “we don’t have a strategy” undercut the U.S. position to the point of goading the President into giving the jihadists another recruiting tool. We’re going to war and you can be sure it will be known as “war against Islam.”

Even the Washington Post chimed in: “When Mr. Obama refuses to acknowledge the reality, allies naturally wonder whether he will also refuse to respond to it.”The New York Times’ Maureen Dowd weighed in with astonishing virulence: “In some situations, panic is a sign of clear thinking. Reality is reality, whether it’s tweeted or not. . . . Now we’d kill to see Obama baring his teeth.” And the New York Daily News set another record for disgustingness with its front page of a jihadist beheader with the caption “Do you have a strategy now, Mr. President?”

Who said the President doesn’t acknowledge reality? The reality is that we cannot solve all the world’s problems and I’m frankly sick of everyone expecting us to do so. When critics demanded a strategy and ridiculed the statement that “we don’t have a strategy,” the reality is that they were demanding war.

Military action is the only available strategy that can be made public. All other strategies involve hunting down psychopaths and dealing with them – a “strategy” that is best implemented by putting up a front of inattention so as to lull the psychopaths into carelessness. Now instead we are going public with coming after them and more lives will be lost – including American lives.

Yes, ISIL is a threat to Iraq and the rest of the region – so let the region get engaged for a change. The oil-rich fiefdoms have taken our money and used our defense forces for almost a century while doing nothing to turn back the salafist jihadists (in truth, often funding them with “protection money” or worse). It is the leaders in that region who need to deal with the whole “salafi” mindset – it really is their problem and not something that we are likely to understand. One thing we can understand is that widespread killing of jihadists breeds more jihadists.

Yes, the personal pathology of these psychopaths is truly barbaric and they need to be hunted down as best we can, but ISIS/ISIL has been beheading dozens if not hundreds of people for quite some time now. There was no outrage for months until some of the psychopaths figured out how to make videos and post them on the web to goad EuroAmerica into going to war – again.

And make no mistake, that is what we are doing. The promise of “no boots on the ground” is illusory if not blatantly untrue. We have already stated publicly that we have hundreds of “advisors” on the ground, which is just how Vietnam started. And there are plenty of reports of clandestine operatives near the Syrian border – after all, someone has to find the targets and guide the bombs.

Many of the thugs that we have called “terrorists” have no political agenda beyond the vague idea of establishing a second caliphate. Their tactical goals are getting opposition governments to overreact, as the US did in Afghanistan and Iraq. It made sense to wipe out the training camps after 9/11, but it made no sense to attempt dictating governmental structures to countries where we had no knowledge or credibility. It is not our region of the world and not a place to impose our culture – change of ideology can only be accomplished by the leadership of the oil-glutted nations.

Some aspects of guerilla warfare groups have changed in the last 20 years. Originally, analysts thought that psychopaths were not welcome in an organization because they were uncontrollable. But then EuroAmerica provided the adrenaline rush of media coverage, and the recruitment policies changed. Now with ISIS all elements of violence are mixed together – apparently a pretty savvy military leadership with some psychopaths on the side.

So the psychopaths are dragging a bigger and stronger opposition (EuroAmerica) into a war that neither we nor they should be willing to fight. It’s the digital age writ large – instant gratification (porno as some pundits described it) with uncontrollable consequences. It will take some time but the psychopaths will eventually destroy the organization from within. Our role should be to help facilitate that by holding them up to ridicule, finding and kill/capture when possible, but don’t make the total demise of an ideology a EuroAmerican responsibility. The Middle Eastern leaders have to come to terms with organizing their own region – we can help with that but we can’t run their world for them.

Wayne McCormack is the E. W. Thode Professor of Law at the University of Utah S.J. Quinney College of Law. Professor McCormack teaches Constitutional Law, Counter-Terrorism, International Criminal Law, Torts, and Civil Procedure.

The Use of Gender-Based Violence During Armed Conflicts

By Stephanie Lewis for the Global Justice Blog

Acts of sexual violence against both men and women have often been used as a military tactic during times of armed conflict. The Statute of the International Criminal Court is the first instrument in international criminal law that explicitly recognizes rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, persecution on the basis of gender, and other forms of sexual violence of comparable gravity as crimes against humanity when they are committed “as part of a widespread or systematic attack directed against any civilian population” and “pursuant to or in furtherance of a State or organizational policy to commit such an attack.”[1] Except for forced pregnancy, these crimes of sexual violence are prohibited when they are committed against “any person,” not just women.

The most recent Sexual Violence in Armed Conflict (SVAC) dataset covers sexual violence during 129 conflicts active between 1989 and 2009 and the post-conflict periods immediately thereafter.[2] The dataset focuses on actions conducted by armed actors, including active state militaries, pro-government militias (PGMs), and rebel groups. According to the SVAC dataset, 42% of state actors were reported as perpetrators of sexual violence at some point during the study period, whereas the study received reports of sexual violence conducted by only 24% of rebel groups and 17% of militias.[3] These numbers, however, may be biased in reporting because state actors wear uniforms and are likely more recognizable than rebel groups.[4]

Culturally, we tend to hear about rebel groups using acts of sexual violence to target women and girls during times of conflict. Perhaps the most recent prominent example is the kidnapping of 200 Nigerian schoolgirls by the rebel group Boko Haram. This gender-based violence may, in some aspects, be tactical. Women and young girls held in captivity by the group have reported being forced to cook and clean for the group and carry out operational tasks, such as luring government soldiers to areas where they may be targeted.[5] While Boko Haram’s ideology does not specifically call for the level of violence we have seen against Christian women, this targeted victimization fits within the group’s strategy of terrorizing Christian communities and forcibly imposing the traditional gender norms found under Shariah law.[6]

Unfortunately, it is highly difficult to account for the number of times acts of sexual violence have been committed due to underreporting and biases from analyzing the data. Victims will often be unwilling or unable to report sexual violence because of shame, a fear of stigmatization, a fear of retributive violence, and an inability to reach authorities.[7] These crimes are particularly underreported when sexual violence is used by men against men. Men are often unwilling to discuss their victimization because they believe it is incompatible with their masculinity.[8] Even if they are willing to discuss acts of sexual violence they have been subjected to, they may see it as simply beatings or torture instead of sexual violence.[9] Furthermore, if they are unable to prove sexual violence, they could potentially be found guilty of consensually engaging in homosexual activity if it is a criminal offense in their nation.[10]

All forms of trauma imposed on victims should be treated equally, and the international community cannot continue to neglect the individuals victimized through acts of sexual violence. While the international community has moved to eradicate the use of sexual violence during armed conflicts, more needs to be done. Research, as a whole, is generally lacking and provides an incomplete picture of the use of sexual violence, particularly with regard to its use against men and boys. Much of this underreporting is cultural, as both men and women face stigmatization, retaliation, and possible criminal charges for simply making a report. Individuals such as doctors, counselors, and humanitarian workers who assist in these war-torn areas of the world may not recognize signs of sexual violence – either because the acts themselves are not easily detectable or because the signs may also be categorized as abuse or torture.

The International Criminal Tribunal for the former Yugoslavia (ICTY) was the first international tribunal to bring explicit charges of wartime sexual violence, to define gender crimes such as rape and sexual enslavement under customary law, to enter convictions for rape as a form of torture, for sexual enslavement as a crime against humanity, and the second international tribunal to pass convictions for rape as a crime against humanity.[11] Almost half of those convicted by the ICTY were found guilty of elements of crimes involving sexual violence.[12] The ICTY also first advanced the notion that rape may be used as a form of genocide, and precedent that rape constitutes genocide was set by the International Criminal Tribunal for Rwanda in 1998.[13]

We also need more and effective prosecution of these actions. It is a good sign that the ICC has classified acts of sexual violence as war crimes and crimes against humanity; such cases, however, can be difficult to prosecute. For example, Germain Katanga, a former Congolese warlord, led a militia in the early 2000s in a struggle for control over eastern regions of the Democratic Republic of Congo.[14] In March 2014, the ICC found him guilty of murder and pillage but acquitted him under the Joint Criminal Enterprise on charges of rape and sexual slavery, even though his forces raped women and conscripted them as sex slaves during his reign.[15] Though the Statute of the ICC explicitly states such actions are war crimes, Katanga’s case is just one example of how difficult it can be to prosecute war criminals for systematic actions of sexual violence. As the issue gains more attention within the international community, one can only hope more criminals will face prosecution for perpetrating acts of sexual violence and be convicted for those atrocities.

Stephanie Lewis is a JD/MPP Candidate, Class of 2016. Lewis’ entry to the GlobalJustinceBlog is part of an assignment for the course International Criminal Law, taught by Professor Wayne McCormack.

 

[1] Office of the Prosecutor. 2014. “Policy Paper on Sexual and Gender-Based Crimes.” International Criminal Court. http://www.icc-cpi.int/iccdocs/otp/OTP-Policy-Paper-on-Sexual-and-Gender-Based-Crimes–June-2014.pdf; See also Statute of the ICC §§ 7(1)(g), 8(b)(xxii), and 8(2)(e)(vi).

[2] Cohen, Dara Kay and Ragnhild Nordås. 2014. “Sexual Violence in Armed Conflict: Introducing the SVAC dataset, 1989–2009.” Journal of Peace Research 51(3): 418-428, 418-19. Retrieved from http://jpr.sagepub.com/content/51/3/418.

[3] Cohen 2014, p. 425.

[4] Id., fn. 15.

[5] Pearson, Elizbeth and Jacob Zenn. 2014. “Women, Gender, and the Evolving Tactics of Boko Haram.” Journal of Terrorism Research 5(1). Retrieved from http://ojs.st-andrews.ac.uk/index.php/jtr/article/view/828/707.

[6] Id.

[7] Cohen 2014, p. 422.

[8] Sivakumaran, Sandesh. 2007. “Sexual Violence Against Men in Armed Conflict.” The European Journal of International Law 18(2):253-276, 255. DOI: 10.1093/ejil/chm013.

[9] Id., p. 266.

[10] Id.

[11] “Crimes of Sexual Violence.” The International Criminal Tribunal for the former Yugoslavia. Last accessed September 8, 2014. Retrieved from http://www.icty.org/sid/10312.

[12] Id.

[13] “Landmark Cases.” The International Criminal Tribunal for the former Yugoslavia. Last accessed September 8, 2014. Retrieved from http://www.icty.org/sid/10314.

[14] “Drawing a Line.” The Economist. June 14, 2014. Retrieved from http://www.economist.com.

[15] Id.

The Secret to Getting a Law Job is Meeting Lots and Lots of Attorneys. Here’s How.

By Jess Hofberger for Career Brief Blog.

You may have noticed that you are starting to get invitations to events hosted by the Professional Development Office. Participation in these type of events is crucial to your future career options. Make it a habit to attend these events (but don’t feel like you have to attend every single one of them.)

To get the most out of your valuable time at these events, you should be prepared to NETWORK (which is just a fancy word for “make friends”). If you don’t feel like a confident networker, or you just need a tune-up, RSVP today for Sarah Brown’s high-intensity, networking crash course.

 

Networking Crash Course
Wednesday, September 10, 2014 from 12:15 p.m. to 1:15 p.m.
(Click HERE to RSVP to the Networking Crash Course)

 

Firm Crawl
Thursday, September 11, 2014
(Click HERE to RSVP to the Firm Crawl)

 

Public Interest Fair
Thursday, September 11th, 2014 from 12:15-1:15
(no RSVP required); and many more to come.)

 

Participation in these type of events is crucial to your future career options. Make it a habit to attend these events (but don’t feel like you have to attend every single one of them.)

Library book drop

By Melissa Bernstein for the Quinney Library Blog.

The law library book drop, which had been temporarily relocated to the stadium parking lot over the summer, has been returned to the upper parking lot east of the law school. If you have any questions, please contact the Circulation Desk at 581-6438.