In late April, Washington and Lee law professor Mark Drumbl gave a lecture at the University of Cologne entitled “Thinking Twice About Child Soldiers,” which addressed a number of arguments made in a CNN op/ed and also a blog post. In May, he taught a course on public international law held at Herstmonceaux Castle, in southern England near Hastings and traveled to the Czech Republic to give a public lecture on “Atrocity Then, Trials Now: The Value of Delayed Justice.” This talk, delivered at Masaryk University School of Law, examined the justifications for prosecuting 93 year-old Oskar Groening, who is currently on trial in Germany and who had served as the accountant and bookkeeper at Auschwitz in the 1940’s.
Finally, in June Drumbl gave a lecture to lawyers at the Department of Justice on evidentiary challenges in securing convictions under the US Child Soldiers Accountability Act, which gives US courts the ability to prosecute individuals who unlawfully recruit children under the age of fifteen into armed forces or armed groups anywhere in the world.
Washington and Lee Law professor Mark Drumbl recently traveled to Colombia with the organization, Lawyers without Borders. Professor Drumbl shares his account of his visit below.
At the invitation of a not-for-profit group called Lawyers Without Borders, I spent several days in Bogotá, Colombia, in mid-February. They are engaged in important work that explores questions of transitional justice, punishment, and reconciliation in Colombia.
I shared my experiences in other countries with regard to accountability for massive human rights abuses, including notably mechanisms that operate outside of formal criminal trials. I examined the usefulness of such mechanisms in my first book, Atrocity, Punishment, and International Law. I knew very little about Colombia so this was a huge learning experience for me.
Colombia has suffered multiple decades of internal armed conflict. The conflict, broadly speaking, occurred between the Colombia state and associated paramilitaries, on the one hand, and non-state insurgents, notably the FARC (Fuerzas Armadas Revolucionarias de Colombia or Revolutionary Armed Forces of Colombia) and the ELN (Ejército de Liberación Nacional or National Liberation Army), on the other. Both sides to the conflict have committed grave violations of human rights, war crimes, and crimes that could qualify as crimes against humanity.
The FARC and the government of Colombia are currently in peace negotiations in La Havana, Cuba. The ELN and the government are not part of these negotiations. The FARC has announced a cease-fire and has been weakened tremendously.
The FARC began as a social liberation movement fueled by goals of land redistribution to the poorest segments of Colombian society. Accordingly, it has political roots. At the apex of its power controlled significant swaths of Colombia territory. While ostensibly beginning as a political organization, and still retaining some elements of a well-intended ideology, the FARC membership and methods however became increasingly terroristic and motivated by extortion, drug running, sadism, and kidnapping Colombians and foreigners for ransom.
The government of Colombia, through the state and more grievously extremist right-wing paramilitary groups, also has committed human rights abuses. These include extrajudicial assassination of civilians. In some instances, the bodies of murdered civilians would be deceitfully dressed up in guerrilla uniforms so as to indicate that the murdered had been insurgents. These ‘false positives’ inhibited any reparation claim and also ostracized the family of the slain.
The International Criminal Court is conducting preliminary examinations into the Colombian situation. As a result of this, Colombia is getting a fair bit of international attention. The state in an affirmation of positive complementarity has passed a number of pieces of legislation to encourage justice and reconciliation. The Colombia courts have been active as well. Civil society is very rich and engaged. Because of civil society actions other international actors, such as the Inter-American Court of Human Rights, have entered the conversation as well.
Major questions facing Colombia today are:
- Reintegration of FARC fighters convicted and serving jail time and possibilities of restorative justice within prison; amnesties for those not yet in custody.
- Accountability for state-sponsored abuses and stopping paramilitary violence.
- Some form of truth commission to explore the roots of the violence and suggest a greater political inclusiveness and equitable distribution of the benefits and burdens of society.
- Managing these issues within a process of peace negotiations that map onto a sense in certain communities that the conflict continues owing to the continued paramilitary attacks.
- Recognizing that Colombia has made huge strides forward over the past several years, and how to continue that momentum.
I met with a series of human rights lawyers at their offices in Bogota. I gave a talk about restorative justice as a potential methodology to help transition societies from violence to a more stable place. Afterwards there was a question and answer session.
On another day we flew to Bucamaranga. This is a city in the north, in the direction of the Venezuelan border. There we met with about 10 families of people (along with their lawyers) that had been murdered by state sponsored paramilitaries and their lawyers. In the afternoon I participated in a discussion with a group of judges, prosecutors, professors, activists, and international officials at the law school in Bucamaranga. Then the group (about 30 people) had a very intense conversation. Things are quite polarized in particular about what to do about the state crimes. The victims see those as part of a general plan of persecution while others see these crimes as aberrations that happen in the war against insurgents.
Lawyers without Borders together with the main law school in Bogota, the University of the Andes, hosted a conference about non-penal sanctions in the accountability process in Colombia. The auditorium was packed and there were many great speakers from all segments of society and the government. I spoke on the last panel, on questions of what it takes for an amnesty to be legal under international law, the definition of crimes against humanity and applicability to non-state actor groups with political missions, state responsibility, and the limits of law in transitional contexts.
Washington and Lee law professor Mark Drumbl joined the University of Ottawa faculty in January as a visiting professor. During the University’s January term Professor Drumbl taught an intensive course titled Mass Atrocity and International Law.
Professor Drumbl also lectured at the University of Ottawa on January 13, 2015. The program, “Stepping Outside Nuremberg’s Halo: the Supreme National Tribunal of Poland and the History of International Criminal Law” and is featured as part of the annual lecture series.
Washington and Lee law professor Mark Drumbl recently contributed to the online symposium Greenwalt’s International Criminal Law for Retributivists. The online symposium is hosted by James G. Stewart of the University of British Columbia Law Faculty at http://jamesgstewart.com.
Professor Drumbl’s post is entitled Adjectival Retributivism: A tale of Theory as Empath.
Washington and Lee law professor Mark Drumbl will participate at a conference this week at The Hague, the Netherlands. The conference, “Impact and Effectiveness of the International Criminal Court”, will be held on December 11-12, 2014. It is sponsored by the Hague Institute for Global Justice and the Grotius Centre for International Legal Studies.
Professor Drumbl will speak on a panel titled “Approaches Towards the Nexis Between Peace and Justice, Including Treatment of the Interests of Justice”.
Washington and Lee law professor Mark Drumbl spoke at a conference last week in Denmark at the University of Copenhagen’s Center for Excellence for International Courts. The conference, “New Practices of Transnational Criminal Law”, was held on November 27th and 28th.
The conference focused on the creation and circulation of new practices of transnational criminal law in and between international, European and national criminal jurisdictions. Professor Drumbl presented his paper “Extracurricular International Criminal Law”.
The full conference program is available here.
About ‘Extracurricular International Criminal Law’:
Much ink has been spilled in assessing how international criminal law informs the curriculum of domestic criminal law. Might international criminal law nonetheless, and perhaps unexpectedly, stray elsewhere in domestic law? When it comes to domestic legal practice, might international criminal law cast a somewhat longer shadow or leave a somewhat haler legacy?
This project begins to address these questions by unpacking the jurisprudential footprints of the International Criminal Tribunal for Rwanda (ICTR) in domestic litigation in the United States under the Alien Tort Statute (ATS). The ATS allows victims of human rights abuses to file tort-based lawsuits against their abusers for violations of the laws of nations (taken to mean customary international law). This project surveys US federal court citation to ICTR case-law and materials; discusses recent moves by US courts to restrict application of the ATS (though several cases continue); and situates references by US judges to the ICTR’s work within the broader context of their citation to the jurisprudential outputs of other international penal institutions whether past or present.
This project then gestures towards a broader conversation regarding the relationship between penal law and tort law in redressing human rights abuses and the migration of international norms to the national level in different but cognate legal regimes. Also of note are the distortions that may arise when international criminal law norms become applied in extracurricular fashion. On the one hand, extracurricular circulation may ensure wider awareness and internalization of international criminal law. On the other hand, it is not assured that the content of the law thusly diffused is accurately appreciated by national judges, or is even capable of predictable appreciation, thereby threatening international law’s general aspirations of doctrinal consistency, universalism, and legitimacy. Alternatively, and pithily, divergent understandings among national judges as to the substantive content of international law (as well as who is an appropriate subject thereof) may suggest no more than the appositeness of elemental insights of legal realism. The availability of international law may simply, and unromantically, accord judges another tool or device for them to achieve what they wish.
Washington and Lee law professor Mark Drumbl recently presented at a conference in Leiden, The Netherlands, to commemorate the 25th Anniversary of the adoption of the United Nations Convention on the Rights of the Child. The event drew over three hundred participants: academics, UN officials, practitioners, and activists.