“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)

This International Women’s Day, Friday, March 8, 2019, experts will gather here in Athens for a conference entitled “The International Criminal Court and the Community of Nations.”  Featured will be panels on the ICC’s relation to various constituent communities, as well as a video message from the ICC Prosecutor, Fatou Bensouda.

Principal sponsors of this University of Georgia School of Law conference are the Georgia Journal of International & Comparative Law and the Dean Rusk International Law Center, which I am honored to serve as a Faculty Co-Director. I’m pleased to serve as faculty adviser for this conference, given my ongoing role as Special Adviser to Prosecutor Bensouda on Children in & affected by Armed Conflict, and also to be joined at this conference by her Special Adviser on Crimes Against Humanity, Leila Nadya Sadat.

The conference concept note begins with a quote from the Preamble of the 1998 Rome Statute of the International Criminal Court, whose Hague headquarters of which are depicted above. In it, states parties “[r]esolved to guarantee lasting respect for and the enforcement of international justice.” The concept note continues:

“Across the globe, resurgent nationalisms place stress on institutions designed to promote human and collective security through international cooperation. Critiques – even, at times, outright denunciations – compel such institutions to re-examine, in a process that poses challenges yet also portends opportunities for renewal. The dynamic surely affects the International Criminal Court. In the last several months alone, states as varied as Burundi, the Philippines, and the United States have levied harsh criticism against this twenty-year-old justice institution, established in recognition that “children, women and men have been victims of unimaginable atrocities” that “threaten the peace, security and well-being of the world.” In the same time frame, the ICC Prosecutor welcomed a multistate referral of alleged crimes in Venezuela and launched a preliminary examination into alleged forced deportation in Myanmar, and the Court as a whole continued complementary efforts to strengthen national and regional prevention and accountability. It did so within legal, geopolitical, and budgetary constraints imposed by a trio of stakeholder communities.

“Experts from academia and the practice will cast a critical eye on ‘The International Criminal Court and the Community of Nations’; that is, on the place of the ICC vis-à-vis communities of states parties, nonparty states, and nonstate stakeholders, as well as inherited communities. Presentations will be published in the Georgia Journal of International and Comparative Law.”

Here’s the schedule:

8:45-9:00 Welcome

Dean Peter B. “Bo” Rutledge University of Georgia School of Law

9:00-10:30  Community of States Parties

Diane Desierto University of Notre Dame Keogh School of Global Affairs ǀ The Philippines and the International Criminal Court: Withdrawal from the Rome Statute and the War on Drugs

Mark Kersten Wayamo Foundation, University of Toronto Munk School of Global Affairs ǀ On the Road to Compromise? African States and the International Criminal Court

Naomi Roht-Arriaza University of California Hastings College of the Law ǀ The Role of the Court in Latin America

Leila Nadya Sadat Washington University School of Law ǀ States Parties and the Shifting Sands of the Court’s Jurisprudence

David Tolbert Duke University Sanford School of Policy ǀ A Look Back, Learning from the Experiences of the Ad Hoc Tribunals: What Lessons for the ICC?

Moderator ǀ Kathleen A. Doty University of Georgia School of Law

11:00-12:30  Community of Nonstate Stakeholders

Tess Davis Antiquities Coalition ǀ Cultural Heritage as an International Criminal Court Stakeholder

Christopher Engels Commission for International Justice & Accountability ǀ Private Investigations, Public Partnerships—Supporting International Criminal Prosecutions through Nongovernmental Organizations

Megan A. Fairlie Florida International University School of Law ǀ The International Criminal Court and the Community of Nonstate Stakeholders: Defense Issues

Valerie Oosterveld University of Western Ontario Faculty of Law ǀ Victims of Sexual and Gender-Based Violence as Stakeholders in the International Criminal Court: An Assessment

Peter Robinson Defense Counsel before International Criminal Court ǀ How the Defense Can Support the ICC

Moderator ǀ Melissa J. Durkee University of Georgia School of Law 

1:45-2:00  Video Remarks

Fatou Bensouda International Criminal Court Prosecutor

2:00-2:35  Inherited Communities

Diane Marie Amann University of Georgia School of Law ǀ What Would Maître Chalufour Say Today?

Mark A. Drumbl Washington & Lee University School of Law ǀ What Would Justice Pal Say Today?

2:45-3:45  Community of Nonparty States

Chimène Keitner University of California Hastings College of the Law ǀ International Institutions and the “Ideology of Patriotism”

Jane E. Stromseth Georgetown University Law Center ǀ The United States and the ICC: Why John Bolton’s Attack on the ICC Is Not in U.S. Interests

Saira Mohamed University of California Berkeley School of Law ǀ States Parties, Non-States Parties, and the Idea of International Community

Moderator ǀ Harlan G. Cohen University of Georgia School of Law

3:50-4:00  Closing Remarks

Morgan Renee Thomas Editor-in-Chief, Georgia Journal of International and Comparative Law

Registration, for CLE credit, and other details here. Additional cosponsors include the International Law Society, Georgia Law’s chapter of the the International Law Students Association, along with SPIA, the University of Georgia School of Public & International Affairs.
(Cross-posted from Exchange of Notes)

Over the last decade it was my honor on occasion to invite Judge Pat Wald to join in a project, to contribute a writing or to speak at an event. Invariably she accepted with the same wry caveat: “Yes, if I am still here by then.” Happily she always was still “here,” enlivening every project to which she contributed. But now she is not. News media reported that Patricia Anne McGowan Wald died in her Washington home yesterday, having succumbed at age 90 to pancreatic cancer.

Many obituaries will focus on her prodigious and inspiring career in the United States: her journey, from a working-class upbringing in a single-parent family, to practice as a lawyer on child rights and in the Department of Justice, to service, in the District of Columbia Circuit, as the 1st woman Chief Judge of a U.S. Court of Appeals, and quite recently, as an Obama appointee to the Privacy & Civil Liberties Oversight Board.

We international lawyers also will recall Wald’s fierce service as a judge on the International Criminal Tribunal for the former Yugoslavia. There, she took part in noted judgments, among them a genocide conviction in Prosecutor v. Krstić and a “turning point” appellate ruling in Prosecutor v. Kupreškić.

Even after retiring from the ICTY, Judge Wald championed international criminal justice, placing particular emphasis on women. It was my privilege to welcome her interventions on these subjects, and at times to aid publication of her contributions (Pat’s computer savvy was, it must be said, rudimentary).

Just last year, our Georgia Journal of International & Comparative Law was honored to publish Pat’s essay “Strategies to Promote Women’s Participation in Shaping International Law and Policy in an Era of Anti-Globalism,” based on remarks she’d given here at the University of Georgia School of Law Dean Rusk International Law Center. They were a highlight of our 10th birthday conference for IntLawGrrls blog, not least because Pat referred to us assembled scholars and practitioners as “you ‘young people’ in the room.” She traced the beginnings of international criminal justice, then said:

“I do not suggest that the process of integrating women as upfront participants in international courts, let alone the inclusion of the crimes most commonly committed against women as worthy subjects of international criminal law jurisprudence, has been completed. More accurately, these developments had just gotten off to a reasonable start at the moment that global politics seem to have begun to shift toward a so-called anti-globalist populism. My central point, therefore, is that we must strategize in the face of a desired, yet elusive future.”

Her strategies: ally to strengthen international law, international legal education, and global-mindedness in many sectors, including the arts; “protec[t] the venues in which women have had significant impact,” including the International Criminal Court and related forums; and work globally to raise women’s awareness “about educational opportunities, rights to land ownership and profits, how to start a small business, how to farm efficiently, how to participate in voting or run for office, and about legal rights to divorce or separation.”

Issues like these were prominent in a special issue of the International Criminal Law Review, “Women and International Criminal Law,” dedicated to the Honorable Patricia M. Wald, for which I served as a co-editor along with Jaya Ramji-Nogales, Beth Van Schaack, and Kathleen A. Doty. Wald herself wrote on “Women on International Courts: Some Lessons Learned” for vol. 11 no. 3 (2011). And as shown in that issue’s table of contents, additional contributors included many whom Judge Wald’s life and work had touched: Supreme Court Justice Ruth Bader Ginsburg and Harvard Law Dean Martha Minow, along with Kelly Askin, Karima Bennoune, Doris Buss, Naomi Cahn, Margaret deGuzman, Katharine Gelber, Laurie Green, Nienke Grossman, Rachel Harris, Dina Francesca Haynes, Jennifer Leaning, David Luban, Rama Mani, Jenny Martinez, Fionnuala Ní Aoláin, Katie O’Byrne, Lucy Reed, Leila Nadya Sadat, and David Tolbert. The issue stemmed from a 2010 roundtable (pictured below) that then-Executive Director Elizabeth “Betsy” Andersen hosted at the American Society of International Law, an organization Judge Wald long supported.

Pat’s support for IntLawGrrls predated this event. In 2009, she had contributed a trilogy of essays to the blog: 1st, “What do women want from international criminal justice? To help shape the law”; 2d, “What do women want? Tribunals’ due attention to the needs of women & children”; and 3d, “What do women want? International law that matters in their day-to-day lives”.

In keeping with the blog’s practice at that time, Pat dedicated her IntLawGrrls posts to a transnational foremother, “a wonderful German/Jewish woman, Gisela Konopka,” a University of Minnesota social work professor with whom Pat had collaborated in a lawsuit against the Texas Youth Authority. In her lifespan of 93 years, Konopka, Wald wrote, “fought in prewar Germany for children’s rights, was put in a concentration camp, managed to get out and work her way through occupied Europe to America, where she became the champion of children, especially girls, who got in trouble with the law.” Explaining how Konopka had influenced her, Judge Wald penned a sentence that today does service as her own epitaph:

“She inspired me as to what an older woman can do right up to the point of departure to help those behind.”