What an honor to present my work in progress, “Intersectional Sovereignties: Dr. Aline Chalufour, Woman at Nuremberg – and at Paris, Ottawa, and Dalat” last week in “Global History and International Law”, a months-long seminar under way online.

Organizer of this superb scholarly offering is Dr. Anne-Sophie Schoepfel of the Institut d’études politiques de Paris, better known as SciencesPo. Her affiliation struck me as serendipitous, given that the subject of my paper was a graduate of SciencesPo. Born in 1899, Chalufour was also the 6th woman ever to earn a Ph.D. in international law from the University of Paris. In 1945-1946, she was the only woman lawyer on the French team that joined U.S., British, and Soviet allies in prosecuting vanquished Nazi leaders at Nuremberg.

Chalufour is one of the women on whom I’m focusing in my book-length study of women’s roles at that first Nuremberg trial, before the International Military Tribunal. But the richness of her experiences inspired this separate article.

Among the other highlights in Chalufour’s 90-year life: practice before the Paris Bar; activism in national and international feminist groups; teaching at colonial schools in what’s now Vietnam; serving de Gaulle’s Fighting French as a propagandist in Canada; gathering evidence about war crimes from liberated ex-detainees; taking part as the only French prosecutor in Britain’s first trial on Ravensbrück, a Nazi concentration camp for women; and, starting a few years after Nuremberg, service as a national judge.

My paper considers these episodes in light of of 3 theorizations: 1st, the shared sovereignty of the post-World War periods; 2d, sovereignty dynamics in colonial and imperial sites; and 3d, sovereignties of the person, imagined and corporeal. The paper then examines interrelations among these 3.

Serving as my discussant at last Wednesday’s session was Dr. George Giannakopoulos of King’s College London and NYU London. Numerous other participants offered valuable comments.

This was the 5th session in the seminar, which is slated to run through June 24 and has attracted law and history scholars from Asia and Latin America as well as Europe and North America. Next up, at 3 pm EDT this Wednesday, May 20, are 2 papers within the umbrella theme “Imperial Origins of the World Order”; details here.

What’s more, in due course Dr. Schoepfel and her SciencesPo colleagues are posting edited podcasts of each session. Already available at the seminar’s website and its YouTube channel:

  • “Epistemic Communities in Exile: Coining ‘Crimes against Humanity’ at London, 1940-45” by Dr. Kerstin von Lingen of the University of Vienna, Austria and author of a new journal article on this subject, as well as ‘Crimes against Humanity’. Eine Ideengeschichte der Zivilisierung von Kriegsgewalt 1864-1945 (Paderborn 2018), a monograph soon to be available in English. Discussants were Dr. Barak Kushner of the University of Cambridge, England, and Dr. Sabina Ferhadbegović of Imre Kertész Kolleg Jena, Germany.
  • “Genocide in Historical Perspective. The Language of Trangression” by Dr. Dirk Moses, of the University of Sydney, Australia, and author of The Problems of Genocide. Permanent Security and the Language of Transgression (forthcoming Cambridge University Press). Discussant was Dr. Charles Maier of Harvard University.
  • “The Nuremberg Moment. International Trial, American Lawyers and the Racial Question” by Dr. Guillaume Mouralis of Centre Marc Bloch in Berlin, and author of Le Moment Nuremberg. Le procès international, les lawyers et la question raciale (Presses de Sciences Po 2019). Discussant was Dr. Elizabeth Borgwardt of Washington University in St. Louis.

The full list of seminar participants is here; full schedule and registration information, here.

Caution in giving too much credit, or blame, to one individual formed the focus of my contribution to last week’s symposium on “The Next ICC Prosecutor.”

Entitled “Placing the Prosecutor within the International Criminal Justice Project,” my post appeared Friday at Opinio Juris, cosponsor along with Justice in Conflict of the online symposium.

My post began by welcoming the rich dialogue – in anticipation of December’s election of the 3d Prosecutor of the International Criminal Court – that had unfolded all week. Fueling that discussion were contributions from a couple dozen commentators on international criminal law: Ewan Brown, Danya Chaikel, David Crane, Geoff Dancy, Tom Dannenbaum, Christian De Vos, Elizabeth Evenson, Kate Gibson, James Goldston, Douglas Guilfoyle, Kevin Jon Heller, Mark Kersten, Patryk Labuda, Stephen Lamony, Luis Moreno Ocampo, Jonathan O’Donohue, Mariana Pena, Priya Pillai, William Schabas, Melinda Taylor, Valerie Oosterveld, Beth Van Schaack, and Kate Vigneswaran, Alex Whiting, and William H. Wiley.

My post then pointed to risks involved in “placing too much weight on the person and position of Prosecutor.” These included:

  • the risk of generating expectations, “inevitably doomed to disappoint”; and
  • the risk that “the very association of a complex project with a lone person or position” obscures the myriad ways that many other actors “play roles, in helping to construct perceptions of the project and in contributing, or not, to the project.”

My contribution is available in full here. For additional posts in the symposium, see list here.

Very pleased to announce the publication of my new article, “The Policy on Children of the ICC Office of the Prosecutor: Toward greater accountability for crimes against and affecting children.”

As indicated in the just-before-publication version that I’ve posted at SSRN, the International Review of the Red Cross placed this article online last month, on February 21. Currently, that published version is available to Cambridge Core subscribers at a First View page; once it appears in print, in a special issue on “Children and War,” it will be freely accessible at the Review‘s website.

Here’s the abstract:

The Policy on Children published by the International Criminal Court Office of the Prosecutor in 2016 represents a significant step toward accountability for harms to children in armed conflict and similar extreme violence. This article describes the process that led to the Policy and outlines the Policy’s contents. It then surveys relevant ICC practice and related developments, concluding that despite some salutary efforts, much remains to be done to recognize, prevent and punish the spectrum of conflicted-related crimes against or affecting children.

This article represents my latest effort to assist in raising awareness and developing strategies respecting children and conflict (prior posts). It’s an effort in which I’ve been deeply involved since my 2012 appointment as the International Criminal Court Prosecutor’s Special Adviser on Children in and affected by Armed Conflict.

Central to this effort was the multiyear process of researching and drafting, along with an Office of the Prosecutor working group and in consultation with others, of the document published in 5 languages and launched in November 2016 as the Policy on Children. Other aspects have included:

Happy to provide further details. And as always, comments welcome.

The new print edition of the American Journal of International Law includes my essay on last February’s International Court of Justice decision respecting the Chagos islands. This post describes that publication and takes note of developments since it went to press.

My essay, “International Decisions: Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965,” 113 AJIL 784 (2019), may be accessed at this SSRN link or at the AJIL website.

The essay outlines the ICJ advisory opinion, which is available here. It explains that the Chagos Archipelago, a group of islands located in the Indian Ocean, was considered part of Mauritius when both formed a British colony. But after Mauritius won independence in the mid-1960s, the United Kingdom kept the archipelago, naming it the British Indian Ocean Territory, then forcibly removed its inhabitants and leased it for a US military base, CNIC Naval Support Facility Diego Garcia, that is still there today. The legality and effects of these actions lay at the heart of the ICJ’s advisory proceedings, instituted following a request by the United Nations General Assembly.

The abstract elaborates:

“Decolonization and its quite valid discontents lay at the center of the recent International Court of Justice advisory opinion regarding the territory and populations of the Chagos Archipelago, located in the Indian Ocean. Answering questions posed by the UN General Assembly, the concluded that because these islands were detached from Mauritius as a condition of independence, the decolonization of Mauritius had not been completed in accordance with international law. The Court further ruled unlawful the United Kingdom’s continued administration of the Chagos Archipelago and called upon all UN member states to aid completion of the decolonization process. As detailed in this essay, the advisory opinion contained significant pronouncements on decolonization, on the right of all peoples to self-determination, and on the formation of customary rules respecting both.”

Notably, all on the ICJ bench agreed with the result except for the U.S. judge, Joan E. Donoghue, who maintained that the court ought not to have exercised its discretion to consider the issue on the merits.

Since 2017, for the 1st time in the court’s history, there has been no ICJ judge from the United Kingdom. As my essay indicates, UK officials spoke out against the court’s advisory opinion, framing it as a bilateral dispute over sovereignty, and stating that Britain would not “cede sovereignty to Mauritius” until Britain determined the archipelago “is no longer required for defence purposes.”

After the essay went to press, the United Kingdom reiterated that position in a 30 September 2019 letter to UN Secretary-General António Guterres, requesting that it be circulated to the General Assembly.

Two weeks earlier, Pope Francis had weighed in, on behalf of the Chagossians. In his words:

“Not all things that are right for humanity are right for our pocket, but international institutions must be obeyed.”

Maintaining the current British policy is the Tory government led by Prime Minister Boris Johnson. Its policy stands in contrast with that of Labour, the Tories’ principal rival; as the Guardian reported on Friday:

“Jeremy Corbyn has pledged to renounce British sovereignty of the remote Chagos Islands and respect a UN vote calling for the archipelago to be handed back to Mauritius.”

In short, the immediate fate of the islands may depend – not unlike Brexit – on the Britain’s next general election, set for 12 December.

On this, the 30th anniversary of the Convention on the Rights of the Child, the United Nations has just published “Child Rights, Conflict, and International Criminal Justice,” my 1st contribution to the UN Audiovisual Library of International Law. (See also here.)

The 41-minute lecture’s available in video (here) and audio formats (SoundCloud, Apple Podcasts, and Google Podcasts).

After noting the particular harms that children endure in armed conflict and similar violence, the 8 November 2019 lecture proceeds to trace the developments in child rights that led to adoption, on 20 November 1989, of the Convention on the Rights of the Child. Next, it describes parallel developments in two other key legal fields, international humanitarian law and international criminal law. After looking at relevant provisions of the Child Rights Convention and other instruments – in particular, the 1998 Rome Statute of the International Criminal Court – the lecture concludes by evaluating efforts to ensure the rights of the child by preventing and punishing international crimes against and affecting children.

Also provided is a list of related materials on which the lecture relies.

My thanks to all at the Codification Division of the UN Office of Legal Affairs for the honor of commemorating the treaty, about which my lecture observed:

“As for the 1989 Child Rights Convention itself – today it has 196 parties, including the Holy See, the State of Palestine, and every UN member state except the United States of America. Because of its nearly universal acceptance, as well as its comprehensive contents, the Convention has served for the last thirty years as the pre-eminent global charter on child rights and protection.”

“For those of us who enjoyed the rare privilege of clerking for Justice John Paul Stevens … there was only one Boss. And it was not Bruce Springsteen.”

WASHINGTON – So begins “Justice John Paul Stevens leaves behind a rich legacy that we cannot forget,” the op-ed I published last week in the Washington Post. It offers personal and professional reflections on the Supreme Court Justice, for whom I served as a law clerk in OT’88.

He died last Tuesday, just months shy of his 100th birthday, after serving on the Court for an extraordinary 3-1/2 decades, from 1975 to 2010.

I’d written as well in the past about aspects of his career:

John Paul Stevens, Originalist,” 106 Northwestern University Law Review 743 (2012)

John Paul Stevens and Equally Impartial Government,” 43 University of California Davis Law Review 885 (2010)

John Paul Stevens, Human Rights Judge,” 74 Fordham Law Review 1569 (2006)

John Paul Stevens and the American Century” (SCOTUSblog, April 20, 2010)

Three More Anecdotes from Clerks” (Blog of Legal Times, April 11, 2010)

Steeped in Tradition” (Blog of Legal Times, April 9, 2010)

Memorial services for Justice Stevens begin this morning, with a ceremony in the Court’s marble rotunda, where he will lie in repose till midnight, with interment at Arlington National Cemetery tomorrow.

It’s an honor to be in attendance at these historic events.

(At top, 2007 AP photo (credit); below, poster for 2009 symposium I organized while a law professor at the University of California-Davis

Honored to have contributed on the doctrine of command responsibility to the newest edition of ICC Forum, an online publisher of essays on human rights and international criminal law. My essay was one of several responding to this question, posed by the editors:

“What does the Bemba Appeal Judgment say about superior responsibility under Article 28 of the Rome Statute?”

My own response, entitled “In Bemba, Command Responsibility Doctrine Ordered to Stand Down,” amplified an argument I’d made in an EJIL: Talk! contribution last year (prior post).

Specifically, it traced the development of the international-humanitarian- law/law-of-armed-conflict-doctrine that places on military commanders a burden greater than that shouldered by other combatants. It then turned to the International Criminal Court Appeals Chamber’s 2018 judgment in Bemba. The majority’s interpretation of the ICC Statute’s command-responsibility provision, my essay argued, risks tolerating “derelictions of duty” so as “to condone indiscipline,” and thus “to increase the risks of the very harms that the doctrine of command responsibility is intended to dispel.” As a result, perhaps “no one can be held to account.”

Other invited experts who contributed essays were: Miles Jackson, Associate Professor of Law, Jesus College, University of Oxford; Michael A. Newton, Professor of the Practice of Law and Political Science at Vanderbilt University Law School; Nadia Carine Fornel Poutou, Executive President Association of Women Lawyers of Central African Republic; and Leila Nadya Sadat, James Carr Professor of International Criminal Law at Washington University School of Law.

ICC Forum is supported by the Promise Institute for Human Rights at UCLA School of Law; UCLA Law Professor Richard H. Steinberg serves as Editor-in-Chief.

“On sundry occasions in US history, the president has defied a check that a co-equal branch of the federal government has sought to place on him (to date, the president has always been a man). Such defiance, alone, is confrontation. But confrontation soon will escalate to crisis if the legislative or judicial branch abdicates its duty fully to check unwarranted executive behavior.”

The passage is drawn from my comment in response to the question whether the United States is in a “constitutional crisis” or “confrontation.” My comment appears as part of an expert legal roundup at Vox, compiled by journalist Sean Illing.

The comment begins with the observation that the U.S. Constitution is the product of crisis, and also a bold, 230-year experiment in which “Americans dared to promise equality in an unequal world, to prescribe government by the rule of law rather than the whim of one man” Setbacks continue. Respecting the promise of equality, “persons of color, women, and others continue to struggle … for their due place in the American polity.” Respecting the prescription for rule by law, it remains to be seen whether the unfolding separation-of-powers confrontation will constitute crisis.

The full roundup is here. Also contributing were: Victoria Nourse, Georgetown Law; Keith Whittington, Princeton; Jessica Silbey, Northeastern Law; Peter Shane, Ohio State Law; Mark Tushnet, Harvard Law; Alice Ristroph, Brooklyn Law; Sanford Levinson, Texas Law; Aziz Huq, Chicago Law; Tom Ginsburg, Chicago Law; and Ilya Somin, George Mason Law.

Delighted to be back in Washington for the 113th Annual Meeting of the American Society of International Law, and to have the honor of leading a roundtable aimed at exploring contemporary security governance.

Entitled Challenges and Prospects for International Peace and Security: UN Peacekeeping, NATO, and the UDHR at 70, the roundtable will take place 9-10:30 a.m. this Thursday, March 28. Participants (including some names different from ASIL’s printed program) are:

  • Michael W. Doyle, University Professor at the Columbia University School of International and Public Affairs
  • Steven Hill, Legal Adviser and Director of the Office of Legal Affairs at NATO Headquarters in Brussels
  • Bruce Oswald, Professor and Director of the Asia Pacific Centre for Military Law in the Melbourne Law School at the University of Melbourne; and
  • Rita Siemion, International Legal Counsel at Human Rights First

After noting that UN Peacekeeping, NATO, and the Universal Declaration of Human Rights all are marking their 70th anniversaries, the roundtable description asks:

“Have they failed to deliver on their original promise or have they adapted effectively to contemporary global realities? Is their future dependent on the continuation of Western hegemony and unity? Can they adapt to the changing nature of security threats, rising powers and a waning commitment to multilateralism? Are they instruments for peace, security and the promotion of international law? What challenges and opportunities lie ahead?”

Thanks to Jesse Clarke, member of the annual meeting planning committee and the Assistant Secretary, Office of International Law, International Division, in the Department of the Australia Attorney-General, for organizing what promises to be a stimulating discussion.

More on annual meeting participation by my colleagues from the University of Georgia School of Law Dean Rusk International Law Center, and me, here.

“With his four-page letter on Mueller’s report, Attorney General William Barr drives the obstruction-of-justice ball firmly into Congress’s court.”

So begins my comment on the Attorney General’s brief summary of the presumably much longer report submitted to him Friday by Special Counsel Robert Mueller. It appears as part of an expert legal roundup at Vox, compiled by journalist Sean Illing.

The comment proceeds to recount Barr’s quotation of Mueller: although the

“‘report does not conclude that the President committed a crime, it also does not exonerate him.’”

Still, Barr wrote that he found insufficient evidence beyond a reasonable doubt of presidential obstruction of justice. That standard of proof is essential to conviction in criminal court – but not in impeachment proceedings, which, if launched, would  begin in the House of Representatives and end in the Senate. For that reason, the ball is in Congress’s court. However, I wrote, the further finding of no coordination or conspiracy to aid Russian election interference may means Congress lets the ball lie there.

The full roundup is here. Also contributing were: Victoria Nourse, Georgetown Law; Jessica Levinson, Loyola Law; Ciara Torres-Spelliscy, Stetson Law; Christopher Slobogin, Vanderbilt Law; Miriam Baer, Brooklyn Law; Keith Whittington, Princeton; Robert Weisberg, Stanford Law; Jimmy Gurulé, Notre Dame Law; Stephen Legomsky, Washington University Law; Frances Hill, Miami Law; Ilya Somin, George Mason Law; Jens David Ohlin, Cornell Law; Ric Simmons, Ohio State Law; and Peter Margulies, Roger Williams Law.

(photo credit)