(What follows are the remarks I delivered earlier today at the annual meeting of the American Society of International Law in Washington. The footnoted version of this speech is available at SSRN here.)
I am very honored, and most deeply humbled, by this Prominent Woman in International Law award. I am humbled when I look at the list of prior recipients. They include: Pat Wald and Mireille Delmas-Marty, two women whose lifework has inspired my own. Stateswomen like Pat Schroeder and Geraldine Ferraro. ASIL leaders like Lucy Reed and Edie Weiss. Another woman who serves as a Special Adviser to the International Criminal Court Prosecutor, Patti Sellers. And Carol Lee, a woman who, like me, once clerked for Justice John Paul Stevens. (Indeed, as of today Justice Stevens may add “feeder judge for PWIL award” to his long list of accomplishments.)
I am even more humbled when I think of all the amazing international law women who deserve this award. Let me name a very few: Our new ASIL President-Elect, Lori Damrosch (who is here with her mother, Jean Fisler, a WILIG stalwart), not to mention ASIL fearless leader Betsy Andersen. Joan Donoghue and her sisters on the International Court of Justice. The ICC Prosecutor whom I am honored to serve, Fatou Bensouda, as well as my sister Special Advisers, Leila Sadat and Brigid Inder. Stateswomen like Mary Robinson and Hillary Clinton. And still another woman whose lifework has inspired my own, Martha Minow.
(You know, I never had a sister, and my mother has been gone for more than a decade now. But I would like to give shout-out to the men in my life: my husband, Peter O’Neill, and our son, Tiernan O’Neill. Tiernan is in school today, so they had to stay at home, but they are here today in my heart.)
I am humbled, finally, to accept this award not only on my behalf, but also on behalf of my three co-editors, Kate Doty, Jaya Ramji-Nogales, and Beth Van Schaack, and, indeed, on behalf of the more than 300 women (plus a few men) who have contributed to IntLawGrrls. Those of you who are with us here today, please stand. Thank you. This award belongs to every one of you.
Even though we are all winners, our general dislike for cacophony demands that only one of us speak today. That honor falls to me, and given that this is a lunch talk, I have chosen a light and modest topic. Well, no, I’m afraid I have not. My title is, in fact, “International Law and the Future of Peace.” For this audience, it might more fittingly be called “Peace: A Feminist Project.”
As many of you know, IntLawGrrls often dedicated their contributions to transnational foremothers. Consistent with the assumption that we women are more nurturing than other humans, contributors frequently chose to honor pacifist heroines. Many from this group of foremothers rode what is sometimes called the first wave of feminism – that period in the late nineteenth and early twentieth centuries when many women (plus a few men) campaigned for change. Members of this movement are best known for winning women the vote. That goal, however, was but one of several that animated them. Equally important to many of these feminists was pacifism. Theirs was an all-out quest to end war. One such campaigner was Jeannette Rankin (above). (photo credit) As a rare woman member of Congress, Rankin voted “No” on legislation by which the United States entered World War I – and twenty-three years later, World War II.
Another was Jane Addams (below), who lectured for peace and against war, and led the U.S.-based Women’s Peace Party. In 1915, Addams chaired the International Congress of Women at The Hague and became the founding President of the Women’s International League for Peace and Freedom, an organization that thrives to this day. For her efforts Addams eventually would receive the Nobel Peace Prize. (photo credit) It must be noted that despite her achievements, the American Society of International Law denied Addams’ application for membership. As chronicled in a 1974 AJIL article co-authored by Alona Evans, Addams was “invited, instead, to subscribe to the Journal ‘for the same amount as the annual dues ….’” In fact, no woman was admitted to membership until 1921, when the Constitution’s guarantee of women’s suffrage appears to have forced the Society’s hand.
It must also be noted that not every foremother was a woman of peace. Quite to the contrary. The pirate Gráinne Ní Mháille, or Grace O’Malley, was cited by me and by nearly every other Irish IntLawGrrl. Selected from Asia were Lakshmi Bai and Trưng Trắc; from Africa, Ndaté Yàlla; and from the Caribbean, Anacaona and Nanny of the Maroons. At times, each of these women resorted to combat as a means to keep her people free from conquest or exploitation.
That we IntLawGrrls chose to honor warriors and pacifists alike points to a central paradox of peace. In its purest sense, pacifism connotes opposition to violence. And surely, the human condition is advanced every time that a life-threatening attack is averted. But the absence of that sort of violence – the non-use of force, as we lawyers call it – is not, in and of itself, peace. Whenever a careful examination reveals an apparent absence of violence to be little more than a veneer that masks exploitation, there is no peace.
It is in recognition of this fact that the peacemaker who died forty-five years ago today, Dr. Martin Luther King, Jr. (left), made clear his preference not for “negative peace which is the absence of tension,” but rather for “positive peace which is the presence of justice.” (photo credit) Similarly, a leading theorist of peace, the Norwegian sociologist Johan Galtung, distinguished attacks, which he called “direct violence,” from exploitation, which he called “structural violence.” Galtung insisted on attention to the latter as well as the former, “not only because exploitation may lead to direct violence,” but also, and perhaps most importantly, because exploitation “is violence in itself.” This fuller understanding of peace, this acknowledgment that exploitation is itself violence, poses a challenge, Galtung wrote. The challenge is to reduce direct violence – to promote the non-use of force – without simultaneously enabling exploitation. In short, there is a line to be drawn. And in our world, the task of drawing that line often falls to the shapers of international law.
We all know in broad outline the rules that govern the use of force. They appear in the foundational text of modern international law, the Charter of the United Nations. From 1945 onwards, U.N. member states promised to “settle their disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered,” and further to “refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state.” States reserved an “inherent right” of self-defense, but only “if an armed attack occurs, until the Security Council has taken measures necessary to maintain international peace and security.” We know too that at Nuremberg and in Tokyo, convicted leaders were hanged for committing aggressive war – called crimes against peace – and for the atrocities that ensued. Taken together, these developments signaled that no state would be permitted to launch an offensive attack, that none therefore would need to exercise self-defense, and that leaders who acted in violation would be punished. That legal framework ought to have put an end to war, or at least to war between states. It did not.
The next six decades saw a number of international armed conflicts, as well as many conflicts dubbed “not of an international character” even though outside countries were aiding one side or another. Examples are the Iran-Iraq War and the struggle in the Democratic Republic of the Congo, each of which claimed a million or more lives. In the face of such conflicts, the Security Council often failed to shoulder its responsibility to maintain peace; that is, it failed both to stop attacks and to bring attackers to account.
From these failures emerged new doctrines, doctrines by which states sought to justify acting outside the confines of the Council. The timing requirement for self-defense was said to permit reaction not only after, or in immediate anticipation of, an armed attack, but also well before a presumed attack is imminent. States were said to be free to use force so long as such use would not be “inconsistent with the Purposes of the United Nations”; for example, in order to rescue their own nationals. Also said to serve U.N. purposes was the resort to force in defense of others, commonly known, of course, as humanitarian intervention.
And what of the crime against peace that was prosecuted at Nuremberg? Concern was expressed; it was said that authorizing the ICC to punish this offense of aggression might have a chilling effect on interventions undertaken in the name of rescuing humanity.
Among those giving voice to this concern was my dear colleague, Professor Van Schaack. While putting it forward in an article, however, she acknowledged that privileging this concern has consequences. To deny international mechanisms the power to question war-making decisions is, in effect, to give leaders the right to choose whether to intervene. Accepting that result “requires,” she wrote, “coming to terms with a certain valorization of militarism.”
Her words serve to underscore one feature of these emergent doctrines: they condone violence; that is, they justify meeting violence with violence. In my view, this too is cause for concern. Suffering and death are the inevitable spawn even of just wars. Doctrinal emphasis on forcible options tends to downplay human costs and to inflate presumed threats. This may be discerned in speeches in which officials of the United States have sought to defend lethal drone strikes. An emphasis on force likewise tends to disregard non-forcible paths to peace. This is evident in writings that consider the concept of responsibility to protect almost solely within the context of military intervention.
In similar vein, the easy justification of force invites states to abandon too hastily the difficult pursuit of pacific dispute settlement. The example that jumps to mind is the 2003 decision to dispense with diplomacy and invade Iraq. Invasion led not to the promised discovery of enemy weapons of mass destruction, but rather to the deaths of nearly 5,000 service members and more than 100,000 civilians, to the displacement of well over a million persons, and to costs in the trillions of dollars.
Our pacifist heroine, Jane Addams, would have had none of this. In 1915, a year into the conflict on the Continent, Addams bemoaned that “because of war, the finest consciences in Europe are put to the old business of self-justification, of utilizing outgrown myths to explain the course of action which their governments have taken.” (credit for photo of Addams, near left, with Mary McDowell) Addams argued that the war footing dispossessed women in particular of values in which they “held a vested interest.” These values were, first, the ideal of a state founded upon individual liberty rather than collective fear, and second, as she put it, “the belief that human life is sacred above all else that the planet contains.”
“Yes, well, but,” I hear some of you thinking. “But what happens when human life is not held sacred? What happens when a president so values power, or a rebel so lusts for power, that he will harm even his own people in order to secure it?” In sum, you ask: “What is to be done about Syria?”
In contrast with Libya, where NATO’s 2011 actions are said to have prevented a bloodbath, in Syria, the past two years of non-action have produced a death toll that exceeds 70,000 children, women, and men. Countless more Syrians have suffered displacement, rape, or torture. Syria seems a classic case for military intervention. Yet it must be remembered that other means have not really been tried. The ultimate international cause of the Syrian tragedy is a failure of diplomacy; that is, the refusal of an essential U.N. member state to exert genuine, effective pressure on the Syrian regime. Russia’s refusal has impeded attempts to ease the crisis by non-forcible means, such as the sanctions and the ICC referral that preceded NATO’s action in Libya. Russia’s refusal, moreover, has permitted unconscionable loss of life and stoked calls for military intervention without the approval of the Security Council.
Let us suppose for a moment that the calls for freedom-fighting prevail, that a coalition of states deploys armed force against the Syrian regime. Is there then is a role for persons who prefer pacific settlement of disputes? There is, I would submit, and it is a role with at least three facets.
The first facet is to pinpoint the lines drawn by international law – to caution that a decision to operate in the doctrinal grey area of humanitarian intervention does not free policymakers from other laws of armed conflict, such as the principle of proportionality and the injunction to wage war as humanely as possible.
The second facet is to remind that even well-intended violence begets violence – providing a case in point is the report that weapons looted during the chaos in Libya two years ago today fuel the combat in Mali.
Finally, the third facet is to continue the hard work of improving global society – to demand not only that each state lives up to its own obligations, but also that each state pressures others to follow suit, and sanctions them when they fail to do so.
This demand helps to ensure human security. This demand seeks not just to stop attacks, but also to undo exploitation; that is, to buttress the legal framework that protects humans against and within the state. In short, this demand subverts both structural and direct violence, and so serves the fullest understanding of peace.
Not surprisingly, this is a demand that Jane Addams made upon the United States when it joined World War I. With an eye to postwar reconstruction, she wrote that the United States must “protec[t] and preserv[e] the higher standards of internationalism.” And casting her eye at the war itself, she urged the United States to send Europe food, so that not even the enemy’s “women and children” would starve. Addams’ emphasis on children was no accident. Like many feminists of her era, as dear to her as suffrage and pacifism were children; to be precise, the freeing of children from factory labor and the protecting of children from the worst ravages of war.
This last goal, of seeking peace for future generations, inspires me in my new role as Special Adviser on Children in and affected by Armed Conflict. It provides me with one answer to the perennial question, “What can I do?” With your indulgence, before closing this talk I would like to suggest a few more things that we can do.
Let me first address what we can do as members of ASIL’s Women in International Law Interest Group.
We can honor our foremothers. We can read and teach and write about women such as Addams, like me a native Illinoisan, as well as Congresswoman Rankin, who, as it happens, used to live just miles from what is now my home in north Georgia. We can ask ASIL to right wrongs done a century ago by granting posthumous membership to all women whose pre-1921 applications were denied. Alona Evans’ AJIL article cites not only Addams in this regard, but also Belva Ann Lockwood, who was the first woman to run for President of the United States and the first to argue a case before the Supreme Court.
We can also honor Alona Evans, whose Wellesley career included a stint as thesis advisor to Hillary Rodham, the young woman who grew to become our most recent Secretary of State. Evans’ long service to ASIL was recognized by her election as its first woman President, in 1980. But then it was cut short – she died before the year was out. In her will Evans left $40,000 to the Society; it is my personal hope that one day she will be made the namesake of ASIL’s Patron-level donors.
Let me conclude with what we can do as scholars and practitioners of international law.
We can work to assure that non-forcible means of intervention are fully considered. And we can insist that when such mechanisms – for instance, Security Council referral to the ICC – are chosen, those mechanisms are given the monetary and other resources they need to complete the task before them.
We can expose to searching scrutiny, against the backdrop of law, every use of armed force. And even when what they have to say causes some of us discomfort, we can welcome, and not shun, the voices of our sisters, and brothers, who speak law to power.
In these and other ways we, each of us, can aid the pursuit of peace.