In lovely Sicily, specialists discuss globalization & international criminal law

duomoSIRACUSA – For the 13th year in a row, this 2,700-year-old Sicilian city is playing host to a Specialization Course in International Criminal Law for Young Penalists. A hundred practitioners and scholars from around the world are considering sessions on the theme of “The Future of International Criminal Law in the Era of Globalization.” It’s my honor to join more than 2 dozen colleagues as a faculty member.

Sessions in the initial days of this 10-day course have provoked much thought, many questions, from attendees and presenters alike. This morning and last began with a lecture from our host, M. Cherif Bassiouni, Emeritus Professor at Chicago’s DePaul Law and President of ISISC, the Siracusa-based Istituto Superiore Internazionale di Scienze Criminali/International Institute of Higher Studies in Criminal Sciences. He voiced concern for civilian victims of armed conflict,  and sounded concern that international criminal law may be too fragmented. With so many legal regimes and institutions at play, he said, what vans1is called a system of international criminal justice has troubling working in fact like a system. This in turn may weaken the normative core common to these enterprises. Exploring these issues yesterday were, as depicted above, Larissa van den Herik, Elies van Sliedregt, and Beth Van Schaack.

Today William A. Schabas and I offered our thoughts. Among many other points, Bill delved deeper into the character of our global society, citing Harvard Psychologist Steven Pinker’s 2011 book, The Better Angels of Our Nature: Why Violence Has Declined. Meanwhile, I highlighted some positive effects that the multiplicity of regimes and institutions may have. To name 2:

► As demonstrated in external responses to the United States’ 2002 establishment of an indefinite detention center at its military base at Guantánamo Bay, Cuba, the presence of many sites for adjudication or other challenge to a state’s practice may compel a state to adjust; in contrast, if there is only one such legal regime or institution, a state more easily may circumvent its strictures. (A notable aside: back in D.C., President Barack Obama is slated to talk about GTMO in a policy address this Thursday afternoon.)

► As demonstrated by the fits-and-starts history of international criminal justice, it seems unlikely that policymakers will design a perfect institution on the 1st try. Inspired by U.S. Supreme Court Justice Louis Brandeis’ description of experimentation within the “laboratory” of the subnational state as “one of the happy incidents of the federal system,” I observed that simultaneous operation of multiple institutions might make it easier for each institution to learn, and adjust, from the lessons of the others.

The sessions continued with a fascinating exploration of commissions of inquiry, with speakers including 3 experts who’ve served on such commissions, Christine Chinkin, Serge Brammertz, and Philippe Kirsch. Up tomorrow is a survey of tribunals other than the International Criminal Court. Then more as the week goes by…not to mention much opportunity to enjoy the beauty of this ancient city.sunset

Acquainting students with international law, scholars, and scholarly methods

With carpenters at work on an annual tradition – building the platform on which 230 Georgia Law students will be graduated Saturday – it seems a good time to reflect on this semester’s pedagogical adventure.

colloqThe adventure was the Georgia Law International Law Colloquium, founded 8 years ago and still going strong. This was the 1st year I served as series coordinator, bringing here to Athens 8 scholars whom my colleagues, Harlan Cohen, Lori Ringhand, Bo Rutledge, and Tim Meyer, helped me select. As the roster indicates, we welcomed scholars who work overseas as well as Stateside. Their works in progress spanned many subfields of international law law, from comparative constitutionalism to human rights and migration, from investment arbitration and intellectual property to targeting of military objectives. We got sneak peeks of some nearly finished writings, such as an excerpt from Bill Schabas’ new 3-volume work on the Universal Declaration of Human Rights and Leila Sadat’s forthcoming American Journal of International Law article on crimes against humanity, as well as looks at works still in their formative stages. We enjoyed spirited conversations among scholars, discussants, and students.

For me, the 20 students who took part made the class far more than just another scholars’ roundtable. The week before our 1st visitor arrived, we began by exploring ways to do international law scholarship. Each students read an article from among the following:

► The 9 articles comprising the “Symposium on Method in International Law” co-edited by Anne-Marie Slaughter and Steven Ratner and published in the April 1999 issue of AJIL. It remains a stellar introduction to issues of methodology, including commentary on positivism, legal process, law and economics, critical legal studies, and feminist jurisprudence. A few other articles served to fill a few gaps:

► On idealism and realism, 2 articles published following “The Limits of International Law” symposium sponsored in 2005 by our Georgia Journal of International & Comparative Law; participants explored the then-new book of the same named by Jack Goldsmith and Eric Posner.

►On comparativism and internal implementation of international law, a 2003 McGill Law Journal article by Jamie Cameron.

The readings led to a wide-ranging discussion, 1st, on how international law writing is done, what its goals are, who its audience or audiences may be, and 2d, on how answers to those questions militate in favor of some but not other methodologies. That set the stage for students’ informed and informative questions and comments about each work in progress, posted initially in reaction papers and then in face-to-face discussions with the scholar-author. The learning curve moved quickly throughout the course, making for a rewarding teaching and learning experience.

ASIL seeks papers for Research Forum, scheduled for November 1-3 @ NYU Law

midyearmeeting

Scholars seeking the perfect venue for presenting their work in progress need look no further than the 3d annual American Society of International Law Research Forum, to be held as part of ASIL’s 2013 Midyear Meeting, November 1-3 at New York University School of Law.

Delighted to see that my Georgia Law colleague, Professor Timothy L. Meyer, will serve as a Co-Chair of the Research Forum, as he did the October 2012 Midyear Meeting & Research Forum, which brought scores of scholars, from all over the world, here to Athens. Tim will be joined by Seton Hall Law Professor Kristen Boon. In the call for papers, they write:

‘The Research Forum, a Society initiative introduced in 2011, aims to provide a setting for the presentation and focused discussion of works-in-progress by Society members. All ASIL members are invited to attend the Forum, whether presenting a paper or not. … The Research Forum Committee will organize the selected paper proposals around common issues, themes, and approaches. Discussants, who will comment on the papers, will be assigned to each cluster of papers.’

Welcomed are unpublished papers “on any topic related to international and transnational law,” including “[i]nterdisciplinary projects, empirical studies, and jointly authored papers.”

Deadline for submission of 500-or-fewer-word abstracts is Friday, June 14, 2013; details on submission and other aspects of the Research Forum here.

China’s stance on Syria, informed by use of responsibility to protect doctrine in Libya

Did regime-change overreach in Libya seal the awful fate that civilians have endured these last years in Syria? A new article in a Beijing-based law journal, China Legal Science, strongly argues “Yes.”

liAmong the 5 permanent members of the U.N. Security Council are 3 from the West – Britain, France, and the United States – plus China and Russia. The latter 2 countries have incurred much criticism for blocking Council action on Syria. ‘Way back in October 2011, for example, the United States’ Permanent Representative to the United Nations, Susan E. Rice, “storm[ed] out” after the latter 2 P-5 countries refused to join what she called “a watered-down resolution” against Syria. Criticism has tended to center around Russia’s commercial and geopolitical relationships with Syria. But the new article, “Responsibility to Protect: A Challenge to Chinese Traditional Diplomacy” (no. 1-2013, pp. 97-120), indicates that other concerns also have been at play. Asserts Dr. Zhu Wenqi, Professor of International Law at Renmin University (formerly a diplomat in China’s Ministry of Foreign Affairs and an attorney in the Office of the Prosecutor at the International Criminal Tribunal for the Former Yugoslavia, and holder of a doctorate from the University of Paris II):

‘The Council’s failure to take action in the Syrian case is because of reflections by China and Russia upon what happened after the resolutions adopted by the Security Council in the case of Libya.’

Zhu cites Resolution 1970 (Feb. 26, 2011), which imposed certain sanctions against Libya and referred the situation to the International Criminal Court, and Resolution 1973 (Mar. 17, 2011), which authorized member states “to take all necessary measures … to protect civilians.” China voted in favor of 1970 and abstained from voting on 1973. In positing “the Libyan authorities’ responsibility to protect” its people, each resolution invoked the responsibility to protect doctrine. With admirable clarity and conciseness, Zhu recounts the 15-year history of that doctrine, by which:

► 1st, each state has a duty to protect its own population; and

► 2d, should a state fail in its duty, the international community has the responsibility to step in and protect the threatened population.

What happened right after adoption of Resolution 1973? NATO mounted a many-month military operation, which ended only after Libya’s longtime ruler, Muammar Gaddafi, was deposed, put on the run, and ultimately killed. The Security Council had not made regime change an explicit aim in either Resolution 1970 or Resolution 1973; a month into the intervention, however, an op-ed by the leaders of the Western P-5 members insisted that Gaddafi “must go, and go for good.” Zhu writes that this ouster effort led China to criticize the resolutions as “pretextual” and as costly in the numbers of civilians harmed.

The Libya lesson has prompted China to resist calls for intervention in Syria, Zhu states. (credit for AP photo above, captioned “Chinese Ambassador to the UN Li Baodong sitting with his hands down as Security Council members vote on resolution to back an Arab League call for Syria’s Assad to step down, Feb. 4, 2012”) What’s more, it has led China to revert to skepticism toward the doctrine of responsibility to protect. In an account that echoes writings of Judge Xue Hanqin on which I recently posted, Zhu sets out not only the value that China places on the sovereignty guarantees in Article 2(4), (7) of the U.N. Charter, but also the relation of that value to the desire to maintain independence from “‘the remnants of imperialist and colonialist oppression'” (quoting the late Wang Tieya). Quoting from this article, Zhu writes that China’s opposition to regime change in Syria is seen as reinforcing the Charter:

‘In the eyes of many Chinese evaluators, China’s attitude toward the Syrian issue actually demonstrated that China “is assuming more responsibilities and obligations” in international affairs.’

Amid this week’s reports that the United States may be backing off from demands for the resignation of Syria’s President, Bashar al-Assad, the article is timely – and its explication of the Chinese legal perspective on global security has value any time.

Kudos to Beth Hillman, appointed to new Defense panel on sexual assaults

hillman-10Pleased to congratulate my colleague, Dr. Elizabeth Hillman, who’s been named to the Response Systems to Adult Sexual Assault Crimes Panel, just formed by the U.S. Department of Defense.

The Academic Dean of the University of California Hastings College of the Law in San Francisco, Beth is well known as an expert on military law. She is the President of the National Institute of Military Justice, a nongovernmental organization on whose board I also serve, and is also a co-author of Military Justice Cases and Materials (2d ed. 2012) and author of Defending America: Military Culture and the Cold War Court-Martial (2005) (as well as an IntLawGrrls contributor). Before joining Hastings in 2007, Beth, who served in the Air Force and earned a J.D. and a history Ph.D. from Yale, taught law at Rutgers-Camden and history at the U.S. Air Force Academy and Yale.

Last September, Beth took part in a high-level Hastings symposium on the issue the new panel will address, sexual assaults and related offenses in the military. As stated by the Defense Department announcement:

‘The panel, established in accordance with section 576 of the National Defense Authorization Act for Fiscal 2013, is a federal advisory committee that will conduct an independent review and assessment of the systems used to investigate, prosecute, and adjudicate crimes involving adult sexual assault and related offenses under article 120 of the Uniform Code of Military Justice, for the purpose of developing recommendations concerning how to improve the effectiveness of those systems.’

Beth was named to the panel by U.S. Rep. Adam Smith (D-Wash.), ranking member on the House Armed Services Committee. Also appointed, either by Secretary of Defense Chuck Hagel or by the Armed Services Committee of the House or Senate, were: one former member of Congress, Elizabeth Holtzman; four retired military officers, Army Brigadier General Melinda Dunn, Navy Vice Admiral James Houck, Army Brigadier General Colleen McGuire, and Army Colonel Holly O’Grady Cook; retired U.S. District Judge Barbara Jones; Dr. David Lisak, and Virginia Beach Commonwealth’s Attorney Harvey Bryant.

The expertise of Beth and all will be much needed on the panel, announced the same day as Pentagon findings that, as reported by the New York Times,

‘ 26,000 people in the armed forces were sexually assaulted last year, up from 19,000 in 2010….’

Children’s rights “summer” course @ Leiden Law School, the Netherlands

headerrightPleased to see (hat tip) news of a 4-day “summer” course on international children’s rights – although it’ll take place too late for most U.S. law students.

Children’s Rights at Cross-Roads is the title of the Grotius Centre course, to be offered August 26 to 30, 2013, in the Netherlands. Coordinators are Dr. Ton Liefaard, UNICEF Professor of Children’s Rights at Leiden Law School, and Dr. Julia Sloth-Nielsen, Law Dean at South Africa’s University of the Western-Cape. They’ll be joined by faculty from institutions in Britain, Denmark, Ireland, and the Netherlands. Organizers write:

‘Children’s Rights at Cross-roads provides a comprehensive children’s rights course, which takes a close look at contemporary children’s rights issues from a legal perspective accompanied by reflections from other academic disciplines, legal systems, local perceptions and realities.’

In addition to coursework, students will visit a youth institution and the International Criminal Court.

Details and registration (deadline is July 1) here.

John Paul Stevens, Legal Historian

In “John Paul Stevens, Originalist,” an article published last year in Northwestern University Law Review, I examined how Justice Stevens, during his 34-plus years on the U.S. Supreme Court, had treated the interpretive methodology known as originalism. I wrote of a 1985 speech in which Edwin Meese III, President Ronald Reagan’s Attorney General, “urged adoption of a single standard –  ‘a Jurisprudence of Original Intention’ that would obligate judges to be guided solely by what the Framers chiefshad meant when they selected the words of the Constitution.'” Justice Stevens pushed back in his own speech the same year and in a 1986 lecture, The Third Branch of Liberty. “Stevens,” I wrote, “identified ‘the probable intent of the Framers’ to give to ‘future generations of judges’ the power and duty to check majoritarian abuses of individual liberty.” After examining Stevens’ treatment of history in cases involving the 2d Amendment, my article quoted Stevens’ Five Chiefs: A Supreme Court Memoir 226 (2011):

‘Historical analysis is usually relevant and interesting, but it is only one of many guides to sound adjudication.’

Though Stevens left the bench in 2010, he scarcely may be called retired. He’s written the just-quoted memoir and several New York Review of Books essays, and given a host of speeches. The latest of these was delivered in Louisville, Kentucky, a couple weeks ago – just 2 days before Stevens celebrated his 93d birthday, to be exact. Entitled “Glittering Generalities and Historic Myths,” it illustrates the role that history continues to play in Stevens’ thinking about law. Stevens identified instances in which the Court contributed to the making and maintenance of myths, some of which, he said, “have a longer life expectancy than the truth.” Identification of each myth implied disapproval of the decisions that had relied on them.

► Thus incurring criticism was the Court’s recent 2d Amendment cases; in particular, the most recent, McDonald v. Chicago (2010).

As I described beginning on 757 of my “Originalist” article, McDonald marked the last case in which Stevens wrote. His solo opinion drew retort from his longtime sparring partner on matters of constitutional interpretation, Justice Antonin Scalia. Stevens’ Louisville speech challenged as myth 2 views of history that underlay the majority’s invalidation in McDonald, on federal constitutional grounds, of a local gun-control ordinance: 1st, the view that the Court got it wrong in Slaughter-House Cases (1873); and 2d, the view that the Court got it right in  United States v. Cruikshank (1875).

Justices were not wrong but right in upholding local health laws in Slaughter-House, Stevens wrote, though “unfortunately” they rested their decision on a little-used, and in his view not-useful, constitutional ground. They were not right but wrong, Stevens ColfaxMassacreadded, to set aside in Cruikshank 3 convictions for the April 13, 1873, killings of scores of African-American men in Colfax, Louisiana. (image credit) (As Stevens noted, Charles Lane depicted these events in The Day Freedom Died (2009).) The release of the defendants in Cruikshank enabled a “myth that they were heroes fighting for a noble cause,” Stevens wrote, not to mention a myth “that laws that failed to preserve white supremacy were ‘misrule.'” Stevens’ speech endorsed the lower court’s articulation of state action doctrine. In an expansive rendering that anticipated the next century’s human rights jurisprudence, that court, in United States v. Hall, 26 F. Cas. 79, 81 (C.C.S.D. Ala. 1871), had defined denial of equal protection as follows:

‘Denying includes inaction as well as action, and denying the equal protection of the laws includes the omission to protect, as well as the omission to pass laws for the protection of his fundamental rights, as well as the enactment of such laws.’

► Also drawing Stevens’ attention were 2 decisions dating from the World War II era – an era that, as I have written here and here, informed Stevens’ own jurisprudence in the aftermath of the terrorist attacks against U.S. targets on September 11, 2001.

quirinAddressed 1st was Ex parte Quirin (1942), in which the Court unanimously approved secret-tribunal convictions of 8 Germans who’d landed on U.S. soil with the aim of committing sabotage. Among the 8 was a man presumed a U.S. citizen, so that in post-9/11 legal discourse the judgment has been cited as authority that citizens may be treated as “enemy combatants” and thus deprived of a panoply of rights. Quirin mythology also includes, Stevens wrote, “the mythical inference that their apprehension was the product of superior intelligence work by the FBI.” (image credit) In fact, citing Jess Bravin’s Terror Courts (2013), Stevens noted that the FBI learned of the plot only when a conspirator turned himself in.

Discussed 2d was In re Yamashita (1946), in which a majority of the Court sustained an overseas U.S. military commission’s capital conviction of the general who, as Stevens wrote, “had assumed command of the Japanese forces in the Philippines shortly before the war ended.” Today thyamae decision is the taproot for the doctrine of command responsibility, by which superiors are held liable for failing to prevent their troops from committing atrocities. But it did not win the favor of Stevens, who clerked for a Yamashita dissenter, Justice Wiley B. Rutledge Jr., a couple years later. Stevens’ speech cited Yamashita’s Ghost: War Crimes, MacArthur’s Justice, and Command Accountability (2012), in which author Allan Ryan dispels “the myth that General Yamashita was a war criminal because he failed to prevent the troops under his command from committing unspeakably cruel atrocities.” In fact, Ryan’s book contends “not just that the General did not authorize any of the atrocities – but that he did not even know about them and probably could not have prevented them even if he had ….” (credit for photo of trial of Yamashita) The former Justice concluded:

‘If the prosecution’s theory of the case were applied to the American Army in the Viet Nam conflict, General Westmoreland would receive the death penalty for failing to prevent the My Lai atrocities.’