Role of “commentaries” key to significance of ICRC project

The role of “commentaries” in the shaping of contemporary international law proved a recurring question in the just-concluded morning public plenary of today’s conference, “Humanity’s Common Heritage: 2016 Commentary on the First Geneva Convention.”

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First broaching the issue was the keynote, Jean-Marie Henckaerts (above). A Georgia Law alumnus, he’s the Legal Adviser at the International Committee of the Red Cross who’s leading the ICRC’s multiyear effort to produce 21st C. commentaries on the meaning of the core instruments of international humanitarian law; that is, the four Geneva Conventions of 1949 and their subsequent Protocols Additional. Joining him were participants in the panel that followed: speakers Major-General Blaise Cathcart, Judge Advocate General of the Canadian Armed Forces, NYU Law Professor Ryan Goodman, Emory Law Professor Laurie R. Blank, and Oxford Law Professor Dapo Akande, plus the moderator, yours truly, Associate Diane Marie Amann. I’ve the honor of serving as director of the Dean Rusk International Law Center at the University of Georgia School of Law, which is sponsoring the event along with the ICRC and the Georgia Journal of International & Comparative Law.

Soon to appear in print, the 2016 Commentary is available online here. At that website, the 2016 Commentary is situated alongside an earlier version, published in the 1950s by ICRC jurist Jean Pictet – and there’s a rub.

“Commentaries are not unusual,” Henckaerts remarked, adding that tomes exist commenting on nearly all the world’s treaties. Though true, the observation pretermits the sui generis status of the author of the 2016 Commentary – the ICRC, since 1863 a Geneva-based private organization that has led developments related to the shaping and compliance with international humanitarian law.

The earlier volumes “are ‘capital C,’ or maybe all caps,” Blank said. Others agreed, pointing not only to the ICRC’s unique status, but also to the fact that the Pictet commentaries  occurred when the intentions of the negotiating states parties – to quote Goodman, “what the framers had in mind” – were well within memory. Continuing her analogy, Blank said she regarded the 2016 effort as a “small c” commentary –  an extraordinary collection of expert analysis, but not exactly the same thing” as the Pictet effort.

Akande broadened the conversation, examining the ICRC commentaries within the context of public international law and treaty interpretation. Pictet’s work may enjoy “unjustifiable authority,” he said, adding that the constitutive nature of the new effort might outweigh any resulting loss of authoritative status. He then called upon the ICRC consistently to be “upfront” about how and why it arrived at its interpretive conclusions.

The points provoked multiple questions: How are treaties to be interpreted? What individuals or entities have authority to engage in interpretation? What weight do interpretations of states parties deserve – and with regard to universally ratified treaties like these, which states parties? What weight to a private organization like the ICRC? Nongovernmental organizations? And what about the victims of armed conflict – do their voices matter in this interpretive effort, and if so, how can victims be given voice?

The search for answers to these and many other questions continued this afternoon. In 3 consecutive closed sessions, about 2 dozen experts (including IntLawGrrl Shana Tabak, pictured at right) discussed: (1) the Common Article 1 obligation to “ensure respect” for the Geneva Conventions; (2) protection of the wounded, sick, and other specially protected persons; and (3) classification of armed conflict.

(Cross-posted from Exchange of Notes blog)

“Humanity’s Common Heritage”: Friday Georgia Law-ICRC conference on Geneva Conventions Commentaries

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Humanity’s Common Heritage – norms codified in international humanitarian law treaties to which all countries of the world belong – will be the topic of a conference this Friday, September 23, at the University of Georgia School of Law in Athens, Georgia.

The conference title derives from this observation about those treaties, the four 1949 Geneva Conventions, by Peter Maurer, President of the International Committee of the Red Cross:

“We know that the values that found expression in the Geneva Conventions have become an essential part of our common heritage of humanity, as growing numbers of people around the world share a moral and legal conviction in them. These contradicting realities challenge us to act: to react to the suffering and violations of the law, and to prevent them from occurring in the first place.”

At the core of this daylong event will be the Commentaries on which the ICRC is now working. Published online earlier this year was the initial Commentary, covering the Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, as well as the articles common to all 4 Conventions. (Prior posts here, here, and here.) Experts will examine this 2016 Commentary and its role in the development, promotion, and implementation of contemporary international humanitarian law.

thumbnail_p1130913We’re honored that the Georgia Law alumnus leading that project, Geneva-based ICRC legal adviser Jean-Marie Henckaerts (LLM 1990), will keynote our conference, and also that the ICRC is cosponsoring the conference, along with our Center and our Georgia Journal of International & Comparative Law. This student-run review, which celebrates its 45th anniversary this year, will publish papers by the assembled experts and Georgia Law student rapporteurs.

akandeDr. Henckaerts will be part of a public panel from 9:15 a.m.-12 noon in Georgia Law’s Hatton Lovejoy 0042401-14ABCourtroom. Speaking in that morning session will be: Oxford Law Professor Dapo Akande; Emory Law Professor Laurie R. Blank, an IntLawGrrls contributor; Major-General Blaise Cathcart, Judge Advocate General of the Canadian Armed Forces; New York University Law Professor Ryan Goodman; and the cathcartmoderator, yours truly, Diane Marie ryan_goodman_photo_horizontalAmann, Associate Dean for International Programs & Strategic Initiatives and Emily & Ernest Woodruff Chair in International Law at Georgia Law, and also the International Criminal Court Prosecutor’s Special Adviser on Children in & affected by Armed Conflict.

Joining them in closed sessions during the afternoon will be additional international humanitarian law experts experts: Georgia Law Professor Harlan G. Cohen; Houston College of Law Professor Geoffrey S. Corn; American University Law Professor Jennifer Daskal; Jonathan Davis, a University of Georgia international affairs graduates and U.S. Department of State Attorney-Advisor; IntLawGrrl Kathleen A. Doty, our Center’s Director of Global Practice Preparation; Julia Grignon, Université Laval Law; Rutgers Law Professor Adil Haque; Christopher Harland, Legal Adviser at the ICRC’s Washington, D.C., office; Eric Jensen, U.S. Department of Defense; Michael Meier, U.S. Army Judge Advocate General Corps; Naz K. Modirzadeh, Harvard Law; Nicholas W. Mull, U.S. Marine Corps Judge Advocate General Corps (ret.); Vanderbilt Law Professor Michael A. Newton; Sasha Radin, U.S. Naval War College; Professor James K. Reap (JD 1976) of the University of Georgia, who’s just been named to the State Department’s Cultural Property Advisory Committee; IntLawGrrl and Georgia State Law Professor Shana Tabak; and Creighton Law Professor Sean Watts.

Full description and details about the conference here.

(Cross-posted from Exchange of Notes, the Dean Rusk International Law Center blog)

Georgia Law hosts ambassador’s talk on US Presidential election & foreign policy

untitledIssues of foreign policy and national security remain foremost in many voters’ minds as the 2016 U.S. Presidential election has entered its final, post-Labor Day lap. We’re thus delighted to be welcoming an expert in this areas to our Athens campus next week:

Fresh from recent lectures in Oxford, Auckland, and Berlin, Ambassador Derek Shearer will deliver a public talk entitled “The Whole World Is Waching: Foreign Policy & the U.S. Presidential Election” at 12:30 p.m. this Tuesday, September 13, at the University of Georgia School of Law. Sponsoring the talk is Georgia Law’s Dean Rusk International Law Center; cosponsors are the World Affairs Council of Atlanta and the University of Georgia School of Public & International Affairs.

Shearer, whom I’ve long been privileged to call a colleague, is Chevalier Professor of Diplomacy and World Affairs at Occidental College in Los Angeles who served as an economics official in the U.S. Department of Commerce, and then as U.S. Ambassador to Finland from 1994 to 1997. He’s the author of several books and a frequent writer on and contributor to public policy discussions;  his articles have appeared in The New York Times, Wall Street Journal, and International Herald Tribune.

In addition to the talk, Shearer will speak to students in Election Law and Strategic Intelligence courses.

toigoWe’re also very pleased to welcome Sue Toigo (left), Chairman of Fitzgibbon Toigo Associates and Shearer’s wife. She’ll discuss corporate responsibility with Georgia Law Business Ethics students.

For additional details, e-mail ruskintlaw@uga.edu.

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)