GJICL publishes “Children and International Criminal Justice” issue

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Very pleased to announce that papers from a Georgia Law conference “Children & International Criminal Justice” have just been published by our Georgia Journal of International & Comparative Law.

The conference was cosponsored by Dean Rusk International Law Center and the Georgia Law Project on Armed Conflict & Children, as well as the university’s African Studies Institute, the Planethood Foundation, and the American Society of International Law-Southeast.

About 2 dozen experts came to Athens, Georgia, from as far as Doha and Kinshasa, to discuss the topic at hand. In so doing, they assisted in the preparation of the International Criminal Court Office of the Prosecutor Policy on Children. As detailed in recent posts, available here and here, the public comment period for the draft of that Policy continues through August 5, 2016, with launch of the final document set for mid-November.

bensouda_me2_28oct14cropA keynote speech by ICC Prosecutor Fatou Bensouda (at right) highlighted our conference, and the text of her speech headlines the edition. Other writings link the work of the ICC to the 1989 Convention of the Rights of the Child, examine the experiences of children in armed conflict and similar situations. Student rapporteurs’ accounts of expert breakout sessions additionally treat a range of issues. All these papers contributed significantly to the Policy process.

The edition concludes with students’ notes apart from the conference; one of these, for which I was honored to serve as faculty adviser, examines the issue of child marriage.

Here, in full, is the table of contents for Volume 43, issue 3, with PDF links to each article:

Children and International Criminal Justice Conference

“Convening Experts on Children and International Criminal Justice,” by yours truly, Diane Marie Amann (above, at left), Associate Dean for International Programs & Strategic Initiatives and Emily & Ernest Woodruff Chair in International Law, and also Prosecutor Bensouda’s Special Adviser on Children in & affected by Armed Conflict

“Children and International Criminal Justice,” by Fatou Bensouda (above, at right), Prosecutor of the International Criminal Court

malone“Maturing Justice: Integrating the Convention on the Rights of the Child into the Judgments and Processes of the International Criminal Court,” by Linda A. Malone (right), Marshall-Wythe Foundation Professor of Law and Founding Director of the Human Security Law Center, William & Mary Law School

drumblm“Children, Armed Violence and Transition: Challenges for International Law & Policy,” by Mark Drumbl (left), Class of 1975 Alumni Professor of Law and Director of the Transnational Law Institute at Washington & Lee University School of Law

“Child Protection in Times of Conflict and Children and International Criminal Justice,” by Kerry L. Neal neal(right), Child Protection Specialist, Justice for Children, UNICEF, New York

“Expert Workshop Session: Regulatory Framework,” by Ashley Ferrelli, Eric Heath, Eulen Jang, and Cory Takeuchi (all Georgia Law graduates, who were members of GJICL)

“Expert Workshop Session: Child Witnesses: Testimony, Evidence, and Witness Protection,” by Chelsea Swanson, Elizabeth DeVos, Chloe Ricke, and Andy Shin (now Georgia Law graduates, all then were members of GJICL)

“Expert Workshop Session: The Global Child,” by Haley Chafin, Jena Emory, Meredith Head, and Elizabeth Verner (all Georgia Law graduates, who were members of GJICL)

Student Notes

“Changing the Game: The Effects of the 2012 Revision of the ICC Arbitration Rules on the ICC Model Arbitration Clause for Trust Disputes,” by Colin Connor

“Water, Water Everywhere, But Just How Much is Clean?: Examining Water Quality Restoration Efforts Under the United States Clean Water Act and the United States-Canada Great Lakes Water Quality Agreement,” by Jill T. Hauserman

“REACHing for Environmental and Economic Harmony: Can TTIP Negotiations Bridge the U.S.-EU Chemical Regulatory Gap?,” by Ashley Henson

“Child Marriage in Yemen: A Violation of International Law,” by Elizabeth Verner

Experts take part in Hague consultation on ICC OTP draft Policy on Children

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THE HAGUE, Netherlands – Experts gathered this week from around the world for a wide-ranging consultation on the International Criminal Court Office of the Prosecutor’s draft Policy on Children.

In her Opening Remarks to Monday’s consultation, Prosecutor Fatou Bensouda explained:

“This Policy, once finalised and adopted, will guide my Office in our ongoing efforts to address international crimes against or affecting children under the Rome Statute, as well as our interaction with children during the course of our work.

“The Policy will further provide clarity and transparency on how we intend to methodologically undertake this crucial work.

“Additionally, it is my hope that this Policy will also serve as a useful guide for national authorities and other actors in their respective endeavours to address crimes against and affecting children, and in their interactions with children in judicial processes.”

Released last month, the draft Policy:

► Reaffirms an oft-repeated commitment of the Prosecutor. To be precise, the Policy reinforces her Office’s concern for “children with weapons” – that is, persons under fifteen who have been recruited or used in armed groups, often called “child soldiers.” But it also details the Office’s concern for what the Prosecutor called “children affected by the weapons” – that is, all persons who, before their 18th birthday, endured crimes within the jurisdiction of the Court.

► Adopts a child-sensitive approach to its dealings with children. That approach recognizes children as both vulnerable and capable, as both needy and resilient – often, at the same time. The Policy pledges sensitivity to these realities according to the regulatory framework of the Rome Statute system, and also according to principles drawn from international instruments, like the 1989 Convention on the Rights of the Child, a treaty that enjoys near-universal ratification and is founding on 4 guiding principles:

  1. The child’s right to be treated without adverse discrimination;
  2. The right to life, survival, and development;
  3. The right to have the child’s best interests taken into account; and
  4. The child’s right to express views and have them considered.

The draft Policy on Children (available in full here) explicitly recognizes those principles and sets out the contours for respecting and ensuring them.

It thus enumerates crimes against and affecting children. Included are crimes of conscription and use, as well as child trafficking as enslavement and forcible transfer as genocide. Also included are crimes like persecution, if it targets children on the basis or age or birth, as well as attacks on schools.

The policy further details the approach of the Office with respect to children at all stages of the proceedings: preliminary examinations, investigations, prosecutions, sentencing, and reparations.

All these aspects received discussion at Monday’s consultation; some are reflected in tweets available at #EndCrimesAgainstChildren. The policy working group will be considered along with other public comments. The Office welcomes additional such comments, which should be sent via e-mail to OTPLegalAdvisorySection@icc-cpi.int no later than Friday, August 5, 2016. The Office anticipates final publication in October of this year.

It was an honor to take part in this consultation in my capacity as the Prosecutor’s Special Adviser on Children in & affected by Armed Conflict – and also to be accompanied at the consultation by one of my Georgia Law students, Chanel Chauvet. (We’re pictured below in front of a mural at the ICC’s new permanent premises.) A  rising 2L and Dean Rusk International Law Center Student Ambassador, Chanel just completed a weeklong Hague summer school on international humanitarian law.

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Hague flags invite all to global celebration of International Criminal Justice Day

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THE HAGUE, Netherlands – International Criminal Justice Day isn’t till next Sunday, but The Hague is ready. Flags like the one depicted above greet visitors throughout city center.

Occurring every July 17, the Day coincides with the signing in 1998 of the Rome Statute of the International Criminal Court – a landmark moment in the movement to call perpetrators of international crimes to account. The court began operating on July 1, 2002, and since then has examined, investigated, prosecuted, or adjudicated cases arising in nearly 19 countries, from Afghanistan to Ukraine.

To mark this 18th anniversary of the Rome Diplomatic Conference, the ICC welcomes photos from around the world. The idea’s to create an image of the scales of justice and show its presence throughout the world by posting on social media with hashtags #JusticeMatters, #17July, and #ICC. Details here.

Further to that effort, yours truly looks forward to today’s roundtable consultation on the draft Policy on Children, opened for public comment last month by the ICC’s Office of the Prosecutor.

Dean Rusk and the dissent channel

March 18, 1967. Afternoon. Secretary of State Dean Rusk conducts a briefing on Vietnam for state governors in the Fish Room of the White House.

At White House, with President Johnson in attendance, US Secretary of State Dean Rusk briefs US governors on the US-Vietnam War. The briefing took place March 18, 1967, not long before Rusk set up a “dissent channel” for State Department diplomats frustrated by US foreign policy. (photo credit)

In my current role as leader of the 38-year-old Dean Rusk International Law Center at the University of Georgia School of Law, I tend to take a close look at any reference to our Center’s namesake, Dean Rusk, who served as the only Secretary of State to Presidents John F. Kennedy and Lyndon B. Johnson.

And so it is with the US diplomatic topic du mois, the “dissent channel” at the Department of State.

This channel is much in the news these days, on account of a Page 1 New York Times story leaking a dissent-channel letter by 51 diplomats at State who want more use of force in Syria than President Barack Obama to date has authorized. (Worth-reading questions about the “leak” here.) And then there was yesterday’s Times story by Ellen Barry, about a dissent-channel “Blood Letter” that forestalled career advancement for the eponymous letter-writing diplomat.

Quite a surprise, amid all this, to read this explanation of the dissent channel, in a transcript of the June 17 Daily Press Briefing by a State Department spokesperson:

“This procedure, this vehicle has been in place since Secretary of State Dean Rusk was in office in 1971.”

Why a surprise? Because by 1971, Rusk was regaling Georgia Law students as the revered Sibley Professor of International Law.

At the briefing, an unnamed reporter took immediate issue with the spokesperson’s account:

QUESTION: And just – can we be clear about when it actually began? Because Rusk, I think, was gone by ’69 when the Nixon Administration came in. So I don’t think he was Secretary of State in 1971, but I could certainly be mistaken.

[ANSWER]: I think it was 1971 and —

QUESTION: Okay.

[ANSWER]: — my reading of the history said that Rusk had something to do with it. But I’m not going to quibble with you —

QUESTION: No, no.

[ANSWER]: — over the history of the program.

Uncharacteristic of these kind of transcripts, the spokesperson’s assertion is supported by a footnote [1]. It says only “William P. Rogers.” That’s the name of the man who became Secretary of State in 1969, after Rusk left government service for the last time. But a quick look at Rusk’s bio on the Department’s site would have confirmed the premise of the reporter’s question.

So what’s right, and wrong?

On the small point of timing, the spokesperson is wrong. But on the larger point of establishing a channel for dissent, unique among the world’s diplomatic services, the account is spot on. To quote a memorial published the year that Rusk died, in the Department’s own publication, Dispatch:

Dean Rusk left his mark not only on the nation and the world, but also on the Department of State as an institution. At a time of tremendous domestic social change, he encouraged minorities and women to enter the Foreign Service. He established the Dissent Channel and the Open Forum to give members of the Department alternative ways to make their foreign policy views known.

 

(Cross-posted from our Center’s Exchange of Notes blog)

ICC Office of Prosecutor invites public comment on draft Policy on Children

draftpolicyIt is my great honor to note today’s release for public comment of the draft Policy on Children of the International Criminal Court Office of the Prosecutor.

Since my December 2012 appointment as Prosecutor Fatou Bensouda’s Special Adviser on Children in and affected by Armed Conflict, I’ve had the privilege of helping to convene consultations and taking part in the construction of this draft Policy. As part of that process, as noted on page 11 of the draft, we at the Dean Rusk International Law Center, University of Georgia School of Law, were honored in October 2014 to host the Prosecutor, members of her staff, and nearly 2 dozen other experts from academic, nongovernmental groups, and intergovernmental organizations. Our “Children & International Criminal Justice” conference featured a morning public plenary and Prosecutor’s keynote (pictured below), followed by an afternoon of closed-door breakout sessions. (Proceedings from that event, to appear in our Georgia Journal of International & Comparative Law, are nearing publication.)

Addressed in the draft Policy, which spans 37 pages, are:

► Overarching concerns, such as the nature of a child and childhood, the experiences of children in armed conflict and other contexts within the jurisdiction of the ICC, and how the Rome Statute of the ICC and other documents treat crimes against and affecting children; and

► Practical concerns, such as how the Office of the Prosecutor engages with children, in all aspects of its work, including preliminary examination, investigation, charging, prosecution, sentencing, reparations, and external relations.

As stated in the press release accompanying today’s publication:

In highlighting the importance of the Policy, Prosecutor Bensouda stated: “when I assumed 8_events2the role of Prosecutor in June 2012, one of the principal goals I set for the Office was to ensure that we pay particular attention not only to ‘children with arms’, but also ‘children affected by arms.’ This Policy demonstrates our firm commitment to closing the impunity gap for crimes against or affecting children, and adopting a child-sensitive approach in all aspects of our work bearing in mind their rights and best interests. It is also our hope that the Policy, once adopted, will serve as a useful guide to national authorities in their efforts to address crimes against children.”

The Office welcomes public comment on the draft. Such comments should be e-mailed to OTPLegalAdvisorySection@icc-cpi.int, no later than Friday, August 5, 2016.

Following revisions based on the comments, the Office of the Prosecutor expects to publish the final Policy on Children in November of this year.

Emerging security challenges require norm development, State lawyer says

IMG_5540At first blush, today’s security challenges may seem familiar. Yet they are new – emerging, in U.S. State Department parlance – because of the novel ways in which those challenges present themselves.

So explained Mallory Stewart (near right), Deputy Assistant Secretary of State for Emerging Security Challenges & Defense Policy, during her fascinating talk Monday at Tillar House, the Washington, D.C. headquarters of the American Society of International Law. We at Georgia Law’s Dean Rusk International Law Center were honored to join ASIL’s Nonproliferation, Arms Control & Disarmament Interest Group in cosponsoring Stewart’s talk, “Common Challenges to Diverse Security Threats.” (For the event video, see here.)

Stewart’s talk followed introductions by Kathleen A. Doty, Interest Group Co-Chair and our Center’s Associate Director for Global Practice Preparation, as well as opening remarks by yours truly (above, at right) respecting Dean Rusk’s arms control legacy.

Stewart pointed to technological change, in outer space and elsewhere, as one of the emerging challenges. Within this category was what is essentially garbage; that is, the debris left in outer space by state actors and, increasingly, nonstate/commercial actors, whose celestial flotsam and jetsam continue to orbit and present hazards to active satellites, space stations, and the like.

Another challenge is dual-use technology. Items as seemingly innocent as chlorine – a chemical essential to everyday cleaning – can become a security threat when deployed as a weapon, as is alleged to have happened during the ongoing conflict in Syria.

Yet another is ubiquity, the reality that technologies, such as cyber capabilities, are, literally, everywhere, and thus not easy to contain.

Containment – regulation – thus is difficult both to design and to effectuate. With regard to dual-use technologies, for instance, Stewart posed questions of intent: How, exactly, does one define and identify the moment that an innocent item is transformed into a weapon? What about attribution – in areas like cyberwarfare, how can the perpetrator be identified? How can attacks waged with such weapons be prohibited in advance?

Stewart gave due respect to the 20th C. arms control treaties that form the core portfolio of State’s Bureau of Arms Control, Verification & Compliance, where she practices. Nevertheless, stressing global interdependence, she stressed the need for more nimble forms of international lawmaking. To be precise, she looked to mechanisms of soft law, such as codes of conduct, as ways that states and other essential actors might develop norms for responsible behavior in the short term. In the longer term, if the internalization and implementation of such norms should prove successful, eventually legally binding treaties may result.

(Cross-posted from Exchange of Notes blog, where this post appears as Part 2 of a 2-part series; Part 1 is here.)

At Center event in D.C., reviewing namesake Rusk’s arms control legacy

outerspaceVisitors to Tillar House, the Washington, D.C., headquarters of the American Society of International Law, were treated Monday to a superb overview of emerging security challenges by the U.S. State Department lawyer who leads that portfolio, Mallory Stewart. I was proud both to have Georgia Law’s Dean Rusk International Law Center cosponsor, and also to serve as discussant for this important event. This post and the post above will outline the proceedings. (For the event video, see here.) This post consists of my opening remarks, which aimed to to reacquaint the audience with to the role that our Center’s namesake, Dean Rusk, played in building the arms control framework within which Stewart and her colleagues work.

. . .

Everyone knows, of course, about Dean Rusk and Vietnam – of his role in championing a foreign conflict that claimed more than a million American and Vietnamese lives between 1965 and 1974. Everyone knows, too, of his pivotal role in averting nuclear catastrophe during the Cuban Missile Crisis of 1962, when Rusk famously said,

“We are eyeball to eyeball, and the other fellow just blinked.”

What may be less well known – or been forgotten – is likewise significant. That is Rusk’s role in the design and implementation of the international arms control regime that has prevailed since the United States dropped atomic bombs on Japan seven decades ago. An Army officer who served in Asia and then in the War Department in D.C., Rusk, like many of his generation, did not fault the military decision. Yet in his memoir, As I Saw It, he wrote (p.122):

“[W]e made a mistake with the Manhattan Project from its inception. We should have built in a political task force to consider the ramifications of using the bomb.”

That position is consistent with Rusk’s own work, first as a State Department diplomat who championed the United Nations, NATO, and other multilateral postwar efforts, and ultimately as the head of that Cabinet department, for the entirety of the Kennedy and Johnson administrations.

As Secretary of State, Rusk oversaw the establishment of the U.S. Arms Control and Disarmament Agency, a forerunner of the Bureau for which our principal speaker, Mallory Stewart, now works. Moreover, Rusk was instrumental in the drafting, negotiation, conclusion, or implementation of at least seven major arms control treaties.

ltbtruskOne was the 1963 Limited Test Ban Treaty, about which Rusk wrote (p. 259):

“[A]fter the Cuban missile crisis, it was important to demonstrate that the United States and Soviet Union could coexist. The test ban required careful and extensive negotiations, but we and they did sign a major agreement on the heels of the most horrendous crisis the world has seen. … Such is the legacy of what President Kennedy felt was his proudest achievement.”

The other treaties were the Antarctic Treaty, the Outer Space Treaty, the Treaty of Tlatelolco, the Nuclear Non-Proliferation Treaty, the Seabed Arms Control Treaty, and the Anti-Ballistic Missile Treaty. Many of them remain at the core of the U.S. arms control portfolio to this day. Yet with the same modesty that pervades his memoir, Rusk wrote (p. 353):

“On the whole, our record on arms control under Lyndon Johnson was respectable.”

He did allow himself a light pat on the back (p.353):

“In reviewing the accomplishments of the Kennedy-Johnson years, I claim only one for myself: that with the agreements negotiated and our constant talking with the Soviets, my colleagues and I helped add eight years to the time since a nuclear weapon has been fired in anger.”

Rusk’s commitment to extending that time continued long after he left government, in 1969, and joined the faculty at the University of Georgia School of Law. Professor Rusk spoke often about arms control, with students, with the larger community, and with the stream of colleagues who consulted with him at his new home. Indeed, as late as 1985 – less than a decade before his death – Rusk welcomed to Athens, Georgia, former British Prime Minister Edward Heath, former Secretary of Defense McGeorge Bundy, former Secretary of State Alexander Haig, and others for a televised discussion entitled “Forty Years Since Hiroshima: What Next for Mankind?”

Rusk’s 1990 memoir returned to that question. In the final chapter, entitled “Dean Rusk’s Message to the Young,” he wrote (p. 630):

“Your generation will discover in the decades ahead whether mankind can organize a durable peace in a world in which thousands of megatons are lying around in the hands of frail human beings. A world in which collective security – what my generation used to try to curb the obscenity of war – is withering away, and we are not even discussing what shall take its place.”

We are here today to put the lie to that last line – that is, to discuss those very issues of global security. I look forward to Ms. Stewart’s remarks.

(Cross-posted from Exchange of Notes blog. Part 2 of this 2-part series outlines Mallory Stewart’s remarks. Credit for photo at top, of Rusk signing the Outer Space Treaty; credit for photo above of Rusk, standing just to the left of the portrait as President Kennedy signs the Limited Test Ban Treaty)