“How can I face a child today knowing what I know?”: Angry plea to end violence

UntitledIt is the season of renewal, of anticipating the year to come. It is a time for revelry, but also for reflection. And reflection on this past year forces one to confront the grim reality of harms humans have wreaked upon other humans – on women, men, and children.

It is this last group of victims on which I have focused, in my service as International Criminal Court Prosecutor Fatou Bensouda‘s Special Adviser on Children in and Affected by Armed Conflict. Bensouda’s office has worked this year to  prepare a Policy Paper on Children, and this year the ICC Appeals Chamber sustained the court’s first conviction, against a militia leader responsible for child-soldiering crimes. But this year also saw untold crimes against children – not only tragically quotidian crimes of domestic abuse, but also spectacular outrages like last week’s lethal attack on a school in Pakistan, and the several instances of girls’ abduction or enslavement by groups like ISIS and Boko Haram.

It is this last group of victims, moreover, that this year spurred digital artist Corinne Whitaker to publish “Cradle Song,” an online book featuring images and poetry that she created. (As I’ve posted, Whitaker is the longtime publisher of a monthly webzine, Digital Giraffe, as well as the sister of colleague Ed Gordon.)

“Cradle Song” features pages of images like the one above, juxtaposed with verse-form text. “How can I face a child / today / knowing what I know?” it begins, then continues with angry, taut descriptions of what she knows – of, that is, the awful ways that armed violence affects children. Her refrain of questions – among them, “Why doesn’t someone / anyone / care?” – reminds us that we do, we must, care. And in this time of renewal, we must resolve to act.

Dean Rusk on Cold War US-Cuba relations

In his statement on easing U.S.-Cuba relations, John F. Kerry said yesterday:

‘I look forward to being the first Secretary of State in 60 years to visit Cuba.’

rusk2The comment got me thinking who might’ve been the last Secretary of State to make an official visit. Perhaps Dean Rusk (bust at right), who served from 1970 to 1984 on the Georgia Law faculty, and is the namesake of a Georgia Law building, as well as its 37-year-old Dean Rusk Center for International Law & Policy?

Well, no. Kerry’s reference to “60 years,” plus the timeline of events in Cuba–it was in February 1959 that Fidel Castro became Cuba’s Prime Minister–point to John Foster Dulles, Secretary of State during much of the Eisenhower administration.

Still, there’s much to be gained by reading Rusk on Cuba. His tenure included U.S. entrenchment of policies against Cuba, undertaken as part of a larger policy aimed at containing Soviet communism. (That larger policy led to Rusk’s subsequent, controversial role in escalation and maintenance of the U.S.-Vietnam War.)

► Rusk’s State Department succeeded in persuading the Organization of American States to expel Cuba from taking part in inter-American affairs–a 1962 exclusion that remained in place till 2009.

► Rusk was part of the Executive Committee, or ExComm, that helped President John F. Kennedy find a way out of the Cuban Missile Crisis of 1962 (indeed, Rusk is sometimes credited with arranging the promised withdrawal of U.S. missiles in Turkey, a key component in the defusing of that crisis).

► And it was on Rusk’s watch that the United States aided exiles’ unsuccessful 1961 invasion of Castro’s Cuba. “The Bay of Pigs disaster was one hell of a way to close out my first hundred days as secretary of state,” he wrote at pages 216-17 of As I Saw It (1991), the memoir he co-authored with his son. According to the son, Richard Rusk (pp. 196-97):

‘Rusk privately opposed the abortive Bay of Pigs operation. “I knew it wouldn’t work … But I served President Kennedy very badly. … I didn’t oppose it forcefully. … I was too busy sitting on my little post of responsibility.”‘

Dean Rusk wrote of his surprise over eventual disclosures of CIA efforts to assassinate Castro. He did cite other plots, of which he was apprised (p. 216):

‘Following the Bay of Pigs, the CIA tried harassing Cuba with various dirty tricks. I vetoed some as being foolish or unproductive. For example, the CIA once proposed contaminating shipments of Cuban sugar with a chemical to render the sugar inedible by the time it reached foreign ports. I thought that was just damned nonsense.’

On other countries’ reaction to the Bay of Pigs debacle, Dean Rusk wrote (p. 216):

‘I have always marveled that the Bay of Pigs fiasco did not inflict greater damage upon the Kennedy administration than it did. We survived that episode better than we had any right to expect. The international community and the United Nations could have really nailed the United States for violating international law. But most governments were sorry that we had failed; regret, not outrage, seemed to mark their reaction.’

This instance of “violating international law” had at least one consequence, Rusk wrote: in the year following the Bay of Pigs, the Kennedy administration placed a greater emphasis on constructing “[t]he legal case” supporting the U.S. response to the Cuban Missile Crisis (p. 233).

Concluding his memoir, Dean Rusk suggested that the Cold War was nearing its end, that “events now seem to be moving toward the West” (p. 616). More than 2 decades have passed since his words were published. It is only now, with President Barack Obama’s announcement on Cuba yesterday, that there appears to be movement toward the Cold War’s final thaw.

After Senate committee’s Torture Report, U.S. must pursue 3 accountability pillars

torturereportThis week has marked the 66th anniversaries of 2 watersheds: on Tuesday, the U.N. General Assembly’s adoption of the 1948 Convention for the Prevention and Punishment of the Crime of Genocide, and on Wednesday, the same assembly’s adoption of the 1948 Universal Declaration of Human Rights. Together, they form 2 essential pillars of post-World War II human rights and human security.

This week also marked the release, on Tuesday, of the 524-page executive summary of the Senate Select Committee on Intelligence Committee Study of the Central Intelligence Agency’s Detention and Interrogation Programa study that, in full, spans 6,000 pages.

I was honored by an invitation to contribute my thoughts on the release of this so-called Torture Report to The New York Times‘ online Room for Debate forum, and so on Tuesday published an op-ed entitled “Officials Must Be Held Responsible for Torture.” Joining me in this forum were Hina Shamsi of the American Civil Liberties Union, Danielle Pletka of the American Enterprise Institute, Georgetown Law Professor David Luban, and Texas Law Professor Robert Chesney.

My own op-ed referred to structures of accountability common in the international arena; that is, truth commissions or commissions of inquiry. In this context, I saw the committee report as a step toward establishment of an historical record, yet advocated the pursuit of two additional pillars of accountability: a comprehensive analysis of aimed at reforming laws and institutions that permitted torture to occur, and Department of Justice investigation of the matter, with prosecutions to follow as appropriate. With regard to the latter, I wrote:

‘And those prosecutions must occur in courts of the United States. If they do not, indictments of Americans by other countries, or by international tribunals, must be expected.’

As a consequence of that op-ed, yesterday I joined American University Law Professor Steve Vladeck and Security Studies Professor Sebastian Gorka of the National Defense University, on a live segment of the Al Jazeera English program “Inside Story,” hosted by Ray Suarez. No public link’s available; suffice it to say that the spirited discussion included my reiteration of the need for 3-pillar accountability, as indicated below:

Crimes against children cited in ICC Prosecutor’s preliminary examinations

As I wrote in an article published last year, “the fate of children in armed conflict has formed a cornerstone of the ICC‘s early jurisprudence.” That article focused on the 1st case tried by the International Criminal Court — Prosecutor v. Lubanga, a case that ended Monday with the Appeals Chamber’s affirmance (available here) of Trial Chamber judgments convicting and sentencing a Congolese ex-militia leader for conscripting, enlisting, and using children under 15 to participate actively in hostilities.

The statement has a wider application, however. Child-soldiering crimes also were pursued, albeit unsuccessfully, in the next trial, Katanga and Ngudjolo. And a case set for trial next year, Ntaganda, involves not only those crimes, but also charges that the accused ex-leader was responsible for sexual abuse that his troops perpetrated against children under fifteen in the same militia. (New IntLawGrrls post on latter case here.)

reportThere is evidence that this focus will remain an ICC cornerstone, moreover. One example is the ongoing process, in which I am honored to take part, of preparing an ICC Office of the Prosecutor Policy Paper on Children. Another is the 64-page Report on Preliminary Examination Activities 2014, which the Office of the Prosecutor released Tuesday. The Report indicated that crimes against children form a part of the analysis in at least 4 of the 9 pending preliminary examinations, as follows:

Afghanistan: Still under examination are allegations that children have been recruited for and used in armed violence. (¶¶ 81, 89, 97) A doubling of casualties involving children is another stated concern. (¶ 83) Finally, there is the matter of harm done to girls:

‘A second potential case against the Taliban relates to attacks on girls’ education (i.e., female students, teachers and their schools). The Taliban allegedly target female students and girls’ schools pursuant to their policy that girls should stop attending school past puberty. The Office has received information on multiple alleged incidents of attacks against girls’ education, which have resulted in the destruction of school buildings, thereby depriving more than 3,000 girls from attending schools and in the poisoning of more than 1,200 female students and 21 teachers. While the attribution of specific incidents to the Taliban, and in particular the Taliban central leadership remains challenging, there is a reasonable basis to believe that the Taliban committed the war crime of intentionally directing attacks against buildings dedicated to education, cultural objects, places of worship and similar institutions.’

¶ 87; see also ¶ 88. (David Bosco‘s just-published Foreign Policy article on a different aspect of the Afghanistan examination is here, while Ryan Goodman‘s Just Security post on same is here, and Ryan Vogel‘s Lawfare post is here.)

Colombia: The report reiterated a prior finding of “a reasonable basis to believe that war crimes under article 8 of the Statute have been committed … including … conscripting, enlisting and using children to participate actively in hostilities” in violation of Article 8(2)(e)(vii) of the ICC’s Rome Statute. (¶ 109)

Central African Republic: With respect to a matter that moved from preliminary examination to situation under investigation during the course of this year, Office reported a reasonable basis to believe that the same 3 war crimes — conscription, enlistment, and use — had been committed by Séléka, an armed group that staged a coup in the country in 2012, as well as by the opposition anti-balaka. (¶¶  204, 205)

Nigeria: Again, attacks against girls appear to be on examiners’ radar, as indicated by ¶  178:

‘The abduction by the group of over 200 girls from a government primary school in Chibok, Borno State on 14-15 April 2014 has drawn unprecedented international attention to the Boko Haram insurgency.’

As noted at ¶  187, Prosecutor Fatou Bensouda condemned the abduction soon after it occurred, in a statement that, like others she has made recently (see here and here), underscores that the Office’s attention not just to child-soldiering, but also to the full range of crimes against children.

Human-rights-driven judicial decree may alter solitary imprisonment in Palau

800px-Koror_JailWhile most of us Stateside were making ready for last week’s Thanksgiving holiday, an overseas American was issuing a remarkable ruling against solitary confinement conditions in the South Pacific island Republic of Palau.

The November 25 order captioned In the Matter of McClain Angelino for a Writ of Habeas Corpus granted the sought-after writ. What is more, the ruling, by Associate Justice Ashby Pate, condemned the entire solitary confinement system in Palau’s Koror Jail. (photo credit) The order concluded:

‘Although the Court recognizes that its particular jurisdiction here is confined within the four corners of this particular Petitioner’s Emergency Application for Writ of Habeas Corpus, the Court strongly urges and recommends the Director of the Bureau of Public Safety, the Warden of the Koror Jail, and all those acting on their behalf, to immediately CEASE AND DESIST from the use of the solitary confinement quarters FOR ANY REASON, until such time as the facility is equipped to be operated in a humane and constitutional fashion and reviewed by a competent constitutional authority….’

Palau was a U.S. trustee state in the post-World War II period. Since achieving independence in the mid-1990s, the Republic of Palau has maintained 1 U.S. appointee among the 4 members of its the Palau Supreme Court. Pate has served in that capacity for about 2 years; I met when he spoke here at Georgia Law shortly before leaving his law practice in Birmingham, Alabama, to take up the post.

The case to which Pate was assigned as trial judge, Angelino, arose out of a complaint filed by petitioner, “a 19-year-old male” who “could easily pass for … 13 or 14″ — a “child,” as the ruling calls him, “at most 5’3 tall and .. at most 120 pounds.” The petitioner had “been incarcerated off and on at least since he was 14 years old for various assaults and burglaries, as well as at least two unsuccessful escape attempts,” and had psychiatric problems that an expert witness said might’ve been exacerbated by conditions of prolonged solitary confinement.

To test petitioner’s claims, Justice Pate conducted a site visit. He pulls no punches in his 1st-person description of solitary (used, as he explains, because the jail is so old that even young, weak, tiny prisoners like petitioner can otherwise escape pretty much at will):

‘…I was in a room of near total darkness, illuminated only by the diffuse light coming from the open door behind us. There was no light bulb in the only exposed and broken socket set in the ten-foot ceiling, and the hard concrete floor was strewn with trash, what appeared to be broken glass, dank wet magazine pages, and soiled clothes. The stench of urine and feces was overpowering. There was no sink, no toilet, and no ventilation other than a small grated opening in the iron door, no bed or bedding, no light, and no drain.
‘…As the door closed, the heat and the stench combined were so overwhelming that I had to resist the urge to physically be sick. After the door closed, at least eighty-percent of the cell was in total darkness, and only a pale column of diffuse light came in through the narrow grating in the iron door, and that was only because the door to the outside remained ajar as a result of our visit.
‘…The sounds from the outside, prisoners murmuring and clanging doors, weirdly reverberated in the confined space, as they would in an echo chamber. The effect was a disorienting combination of utter sensory deprivation, at least with respect to vision and touch, coupled with a nauseating sensory overload of putrid smell and booming sound. After approximately one minute, I asked to be released.’

Pate’s ruling declared the conditions of confinement violative of Article IV § 10 of the Palau Constitution, which states:

‘Torture, cruel, inhumane or degrading treatment or punishment, and excessive fines are prohibited.’

Citing Palau case law, Pate found as the source for that prohibition the 1948 Universal Declaration of Human Rights, and so examined international human rights law. Mentioned were, inter alia, customary international law, a 2011 U.N. report, U.N. Standard Minimum Rules for the Treatment of Prisoners, commentary by the U.N. Committee Against Torture, and jurisprudence of the European and Inter-American human rights courts. His bottom line:

‘[T]he conditions in the solitary confinement quarters of the Koror Jail fail to meet even the minimum standards of internationally recognized human decency, and … flagrantly violate Petitioner’s constitutional and human rights.’

The order is an impressive national-court application of international human rights norms. Look forward to learning more of the state’s response to this condemnation of its incarceration practices.

Breakthrough in drone-debate white noise

droneWhat once was a rather loud drone of debate over the use of armed, remote-controlled, aerial attack vehicles seems recently to have receded into background noise. Perhaps that’s in part because of newly perceived threats like ISIS — threats that many Americans, tired of U.S. ground-troop casualties, would rather see addressed by Reaper and Predator drones. (photo credit) Perhaps it’s because criticism of U.S. counterterrorism practices has muted since the days of the Bush Administration, or because reports of any such criticism now are relegated to the back pages of a few national newspapers.

A recent New Yorker article deserves to break through this complacent fog: “The Unblinking Stare: The drone war in Pakistan,” by Steve Coll, a Pulitzer Prizewinning reporter on national security issues and dean of the Columbia Journalism School. It’s a great synthesis of reportage on the origins and evolution of the program, coupled with commentary that raises questions all ought to be asking.

Of particular note:

► The recognition that the practice of “‘signature strikes'” — drone-killings of “armed military-aged males engaged in or associated with suspicious activity even if their identities were unknown” — stands at odds with settled law. Coll cites a 2013 report by Christof Heyns, U.N. Special Rapporteur on extrajudicial, summary, or arbitrary executions, for the proposition that such strikes do not fall under either “proper standard for attacking a person under the laws of war … ‘continuous combat function’ or … ‘directly participating in hostilities.'” (Coll might’ve gone a step further, and acknowledged that “continuous combat function” is a concept not established in written international humanitarian law, and thus itself still subject to challenge.)  Concern over legality seems to have contributed to President Barack Obama’s tightening of drone-killing standards a year or so ago. The result? Since that time, “there has not been a single documented civilian casualty, child or adult, as a result of a drone strike in Waziristan.

► The role that children play in the story. Coll reports that a Pakistani documenter of human rights violations soon realized that data on drone-killings of adults stirred little interest; “if a drone missile killed an innocent adult male civilian, such as a vegetable vend[o]r or a fruit seller, the victim’s long hair and beard would be enough to stereotype him as a militant.” The documenter’s solution? “[F]ocus on children.” Thus were recorded, via photographs, the harm done to children in the course of drone attacks. Such photos helped fuel “a social-media contest,” Coll wrote, a contest that includes widely varying statistics about just how many civilians, of any age, have perished in U.S. strikes. The disparity makes it hard to evaluate — and thus hard to challenge — U.S. administration claims that drones are more humane, more precise than other sorts of aerial attacks.

Even if the claims are true, Coll questions whether that matters in the end. He cites a recent Foreign Affairs essay in which scholars Micah Zenko and Sarah Kreps argued that the promise of precision “may create more war.” And he writes of meeting in Islamabad with young men who acknowledged the upside of more precision, then added: “But they also talked about the suffering their families had endured — kidnappings, homes under pressure — and their own struggles to obtain an education. In their telling, the relative precision of the aircraft that assailed them wasn’t the point.”

In Leiden, experts celebrate 25th anniversary of Children’s Convention

kinderLEIDEN – Children, or kinder, has been the watchword these days in this Dutch city, where Leiden University’s been hosting a whirlwind of activities to mark the 25th anniversary of the Convention on the Rights of the Child. A film festival, moot court competition,* art exhibit, and commemoration by Princess Beatrice were just some of the events.

I was honored to take part in “25 years CRC,” a 2-day conference that brought to Leiden hundreds of children’s rights experts, from Auckland to Zagreb and many places in between. Plenary presentations included Corinne Dettmeijer-Vermuelen‘s fascinating comparison of U.S. and Dutch laws against online sexual exploitation of children. Then scholars and practitioners met in early a dozen parallel sessions, where they tackled an array of topics.

The session I chaired featured: Claire Achmad‘s outline of her Ph.D. dissertation, a children’s rights approach to regulation of international commercial surrogacy; Mies Grijn‘s anthropological account of child marriage practices in a village in Java, Indonesia; and Emily Waller‘s discussion of children, sexual violence-related stigmatization, and reparations. A common thread in these talks was the difficulty of drafting, adapting, and enforcing laws meant to be applied in societies marked by changes and cultural variations.

In a session on children and armed conflict, Olga Jurasz explored the treatment of children in cases before the International Criminal Court. Aurélie Roche-Mair followed suit, with an emphasis on the interrelation between the Children’s Convention and the Rome Statute of the ICC. Concluding was Gloria Atiba-Davies, head of the Gender and Children Unit in the ICC Office of the Prosecutor. Together, their presentations underscored the legal and practical challenges to achievement of the goal of ending wartime crimes against children – a goal to which ICC Prosecutor Fatou Bensouda recommitted her office, in her October speech on “Children & International Criminal Justice,” and in a statement yesterday that marked the Convention’s anniversary. It’s a goal to be pursued as her office continues consultations with experts, in the course of developing its Policy Paper on Children.

* Congratulations to the Students of the Law Society of Ireland for winning 1st place at yesterday’s finals. And kudos to Leiden Professors Ton Liefaard and Julia Sloth-Nielsen for the vision and hard work that produced this amazing week.