Monthly Archives: February 2013

‘You may have the votes, but you’re going to have a fight.’

That’s Washington Post columnist Dana Milbank’s takeaway from yesterday’s U.S. Supreme Court argument on the Voting Rights Act.

3justicesPrompting the quote was the battery of questions that the newcomer Justices, Sonia Sotomayor and Elena Kagan, aimed at arguments of their longest-serving colleague, Justice Antonin Scalia. By Milbank’s account, more than once the newcomers challenged Scalia’s comments. Sotomayor, he wrote, is given to “blunt” interruption; Kagan, “sharp-witted” observation.

Often heard in gender-parity talks is this question: Are women so different from men — more caring, perhaps — that more women in high places would change things? Milbank’s account answers “yes” — that, regardless of eventual outcome, strengthening women’s voices may broaden the frame of debate. (credit for 2010 Steve Petteway/Supreme Court photo, of, from left, Justices Sotomayor, Ruth Bader Ginsburg, and Kagan)

Turns out many women, no less than many men, will fight to the teeth for their beliefs.

ICC_member_states_world_mapAt a conference on the International Criminal Court yesterday, Pittsburgh Law Professor Charles Jalloh asked Ambassador Stephen J. Rapp to clarify the status of the United States vis-à-vis the Rome Statute of the International Criminal Court. Rapp, who leads the State Department’s Office of Global Criminal Justice, began by recounting the Clinton Administration’s signing in 2000. (credit for map depicting signatories in gold) Next Rapp gave an account of what some have called the Bush Administration’s “unsigning.” He then described to his Emory Law audience the position of the Obama Administration: The United States is endeavoring to advance accountability goals underlying the ICC treaty. Indeed, Rapp reminded, State Department Legal Adviser Harold Hongju Koh more than once had made this same point.

Koh’s most recent affirmation came in “International Criminal Justice 5.0,” a speech delivered in New York and at The Hague in November 2012, a couple months before Koh’s term ended. U.S. ratification of the ICC treaty is not in sight, Koh said then (as did Rapp yesterday). Koh then listed many ways in which the United States has worked in recent years to support the court’s efforts (again, as did Rapp). Finally, Koh recalled remarks he’d given two years earlier, on which IntLawGrrls then had posted. (And see Jennifer Trahan’s OJ post.) Koh quoted the 2010 statement in his speech last November, as follows:

Putting all of this together, as I made clear more than two years ago in a speech at New York University,
“What you quite explicitly do not see from this Administration is U.S. hostility towards the Court. You do not see what international lawyers might call a concerted effort to frustrate the object and purpose of the Rome Statute. That is explicitly not the policy of this administration. Because although the United States is not a party to the Rome Statute, we share with the States parties a deep and abiding interest in seeing the Court successfully complete the important prosecutions it has already begun.”

That phrasing hearkens to Article 18(a) of the 1969 Vienna Convention on the Law of Treaties, which provides that “[a] State is obliged to refrain from acts which would defeat the object and purpose of a treaty when … it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty ….”

In short, regardless of how one characterizes the 2002 letter in which then-U.S. Ambassador John Bolton “inform[ed]” the U.N. Secretary-General “that the United States does not intend to become a party to the treaty” and so “has no legal obligations arising from its signature,” top Obama Administration officials have made clear that the United States now acts toward the ICC treaty as any good signatory should.

In a season when Americans are roiling from news of shootings in Newtown in December, and in too many U.S. cities every day, the emcee of the Oscars ceremony last night had the gall to joke about a Presidential assassination.

His invocation of John Wilkes Booth came (many long) hours before a program twist of which no doubt knew – the announcement of the best picture made, via remote telecast, by the 1st Lady, wife of the sitting President, who’d mourned earlier this month with the parents of a Chicago shooting victim.

As a mogul might put it, there’s something wrong with the pictures.

US-Flag-and-Rainbow-Flag-e1330027721669-275x300Yesterday the Obama Administration urged the U.S. Supreme Court to invalidate § 3 of the 1996 Defense of Marriage Act, which defines “marriage” as the union of a man and a woman, and thus precludes extension of many benefits to spouses in same-sex marriages. The Brief for the United States on the Merits Question in United States v. Windsor argued that:

  1. The Court must examine the legality of discrimination based on sexual orientation at a heightened level; and
  2. Such heightened scrutiny exposes the statute as a violation of the equal protection obligations that the 5th Amendment places on the United States. (I examined that constitutional doctrine in a 2010 article.)

Acknowledging intervenor’s “appeal to this Court to allow the democratic process to run its course,” the government’s brief in Windsor concluded:

‘That approach would be very well taken in most circumstances. This is, however, the rare case in which deference to the democratic process must give way to the fundamental constitutional command of equal treatment under law. Section 3 of DOMA targets the many gay and lesbian people legally married under state law for a harsh form of discrimination that bears no relation to their ability to contribute to society. It is abundantly clear that this discrimination does not substantially advance an interest in protecting marriage, or any other important interest. The statute simply cannot be reconciled with the Fifth Amendment’s guarantee of equal protection.’

With the filing of this brief and others, focus in the United States now shift to the Court, which will hear arguments in Windsor and another marriage-equality case, Hollingsworth v. Perry, at the end of March. (IntLawGrrls’ posts on these cases available here.) (photo credit)

In the meantime, worth noting are developments in countries the United States has long considered allies – countries with which the United States shares fundamental rights traditions:

Given recent U.S. decisions’ silence on foreign law, it will come as no surprise if these developments  prompt scant mention in the March arguments in Windsor and Perry. Nevertheless, these overseas threads will form part of the fabric of Justices’ deliberation.

At IntLawGrrls and elsewhere, colleagues and I have, in recent years, told the stories of  Women at Nuremberg. A 2011 article of mine profiled Cecelia Goetz, who, after becoming the 1st woman to give an opening statement at an international criminal trial, went on to become the United States’ 1st federal bankruptcy judge. American University’s Shana Tabak has published a 2-part series on Grace Kanode, who, in July 1946 in Tokyo, became the 1st woman to appear bdolefore an international criminal tribunal. (See here and here.) And Katherine B. Fite, the U.S. State Department lawyer who helped draft the Nuremberg Charter, is not only the subject of 2 publications (a 2010 article by St. John’s Law Professor John Q. Barrett and a 2012 article by me), but also the namesake of an annual lecture given at the International Humanitarian Law Dialogs.

Not all the postwar pioneers have yet been named, however, and so we have Baltimore attorney Marlene Trestman to thank for bringing another to the fore. She is Bessie Margolin (right). Born in 1909, Margolin’s mother died when she was 4, so that she and her sibling grew up as “half-orphans” in the New Orleans Jewish Orphans’ Home. Her 1930 graduation from Tulane Law School led to research and, in 1933, a doctorate from Yale Law. Soon Margolin found herself the 1st woman lawyer at the federal government’s newly created Tennessee Valley Authority. By 1939 she’d moved to the Wage and Hour Division of the Department of Labor, the beginning of a three-decades career that included argument of 28 Supreme Court cases, plaudits from top-ranking judges, and a slew of awards.  (credit for circa-1950s Department of Labor photo, courtesy of Marlene Trestman) Margolin died in 1996 without ever securing the federal judgeship for which she’d campaigned.

A sliver of that career included the months in 1946 and 1947 that she spent at Nuremberg, Germany. Even as the International Military Tribunal Trial of the Major Nazi War Criminals unfolded at the Palace of Justice, Margolin did the important work of devising the plan for the subsequent trials before the U.S. entity now known as the Nuremberg Military Tribunals. The article’s depiction of Margolin’s dual status, as a serious lawyer and as an oft-invited guest at parties, mirrors stories of Fite and others.

Author Trestman, who lived years later at the same New Orleans orphanage, published a brief account of Margolin’s life last year, in a Journal of Supreme Court History article entitled “Fair Labor: The Remarkable Life and Legal Career of Bessie Margolin.” She’s now at work on a book-length treatment, one that will enrich understanding of the contribution that Margolin and other women lawyers of the last half-century made, both away at Nuremberg and here at home.

hagenThe Brussels-based Forum for International Criminal & Humanitarian Law and the Beijing-based Peking University International Law Institute seek proposals for history-focused papers to be presented at a conference they’re cosponsoring in Asia this time next year. “The Historical Origins of International Criminal Law” is scheduled to take place February 28 and March 1, 2014, in Beijing, China, and New Delhi, India. Organizers, who anticipate publishing the papers in a conference volume, write:

‘What are the main historical origins of international criminal law as a discipline of international law? ….

‘By pursuing focused research and discourse on the history of international criminal law, the organisers aspire to generate new knowledge, broaden the common hinterland to international criminal law, and further consolidate this relatively young discipline of international law. … This project seeks vertical consolidation – an increased awareness and knowledge of the historical and intellectual foundations of international criminal law and its social function – which can strengthen the quality, independence and viability of criminal justice for core international crimes in diverse and rapidly changing social contexts. …’

Tradition extends the history of international criminal law at least as far back as the 1474 capital war-crimes trial of Peter von Hagenbach, depicted above and recently analyzed in an article by North Dakota Law Professor Gregory S. Gordon. (image credit) This history includes many other events, as detailed in the organizers’ sample list of topics.

Experts in law, history, and social science are encouraged to submit papers proposals, in English or Chinese. Full call for papers here. Proposal deadline is May 1, 2013.

Her hula hoop having just swirled to her feet, Turkieh, an 8-year-old girl from Homs, answers a question:

‘My Mum went to buy bread and was coming back … And the sniper shot her,’

Turkieh explains, then gives the hoop another spin. Hers is one of several stories in “Inside Syria Exclusive Video: Children at War,” published this week at GlobalPost. Made in homes 1in Homs and Qsier, the video reveals how war in Syria has affected the country’s children. The conflict is due to pass the 2-year mark next month. The civilian death toll “is probably now approaching 70,000,” the U.N. High Commissioner for Human Rights, Navi Pillay, told the Security Council on Tuesday. That number is staggering, hard to visualize. The video is not: the stories told by a few children, in fewer than 6 minutes, give faces, voices, to the violence.

It is hard watching. Not because there are tears, as the viewer might expect, but rather because no tears are shown. These children talk of loss with stone faces, at times with smiles. For children like those in the screenshot above – for girls like Turkieh, who have known violence a quarter of their lives – war is normal. That fact is more troubling than tears.