Monthly Archives: June 2013

Having accepted a kind invitation to speak at a Norway conference on international criminal justice next year, I’m pleased to give notice of the call for papers.

psloOrganized by my IntLawGrrls colleague, Professor Cecilia M. Bailliet, as part of the PluriCourts project, the conference will be held August 30-31, 2014, at the University of Oslo Faculty of law. Called “The Legitimacy and Effectiveness of International Criminal Courts,” the conference will explore empirical, normative, comparative or theoretical approaches to the study of international criminal tribunals. Contributions from law and social science, including philosophy, sociology, criminology, psychology and history, are welcomed. As detailed in the full call for papers, overall topics may include:

► Fairness, application of legal standards, and the relationship to the Security Council

► Evaluating the effectiveness of international criminal tribunals

► Cross-fertilization of international criminal tribunals with other regimes and complementarity

► Funding and legitimacy challenges

Deadline for paper proposals is November 1, 2013. Full call for papers here; hope to see you there.

‘[S]uggestions that cyber means and methods of warfare exist in an extra-normative space beyond the reach of IHL are completely counter-normative.’

Michael N. Schmitt, contributing a post to a series on “International Humanitarian Law & New Technologies” sponsored at Intercross, the blog of the International Committee of the Red Cross. Schmitt, who heads the U.S. Naval War College International Law Department and is a Senior Fellow at the NATO Cooperative Cyber Defence Centre of Excellence, is among the experts who maintain that Intercross ID logo_0international humanitarian law enjoys what he calls “inherent adaptability”; therefore, consideration of what uses of new technology are lawful ought to occur within the frame of that body of law. It’s the stance he took on release of the Tallinn Manual on the International Law Applicable to Cyber Warfare (2013), about which I previously posted, and to which he refers in his Intercross post. Schmitt does not argue that IHL is static. Rather, he predicts that some legal concepts may be “reinterpreted”; for instance, what constitutes an “attack” within cyberspace. What I’ve titled “human-free weapons” – that is, autonomous or robotic weapons, able to make targeting decisions without human intervention – pose particular interpretive challenges. Schmitt notes others’ posts in the series and “join[s] the ICRC in calling for further informed examination of the issues the systems arise.”

contemplation of justiceHere, in a nutshell, are the marriage equality rulings issued just now by the U.S. Supreme Court, with links to the actual judgments:

Judgment in United States v. Windsor: By a 5-4 vote, the Court held that equal protection and due process guarantees inherent in the Due Process Clause of the 5th Amendment to the Constitution forbid the federal government to privilege one class of married people over another, as the Defense of Marriage Act had required. The Act is thus unconstitutional as applied to same-sex couples married in states permitting such marriages. (Prior post.) Quote from opinion for the Court by Justice Anthony M. Kennedy (pp. 25-26):

‘DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment. This opinion and its holding are confined to those lawful marriages.’

Judgment in Hollingsworth v. Perry: By another 5-4 vote, the Court held that petitioners, private parties opposed to same-sex marriage who stepped in when the State of California would not, did not have standing. The petitioners had appealed a federal district court ruling that invalidated Proposition 8, the state constitutional provision banning gay marriage. Quote from opinion for the Court by Chief Justice John G. Roberts, Jr. (p. 17, citations omitted):

‘The Article III requirement that a party invoking the jurisdiction of a federal court seek relief for a personal,particularized injury serves vital interests going to the role of the Judiciary in our system of separated powers.“Refusing to entertain generalized grievances ensures that . . . courts exercise power that is judicial in nature,” and ensures that the Federal Judiciary respects “the proper — and properly limited — role of the courts in a democratic society.” States cannot alter that role simply by issuing to private parties who otherwise lack standing a ticket to the federal courthouse.’

This ruling leaves in effect the lower court order allowing same-sex marriages in California. SCOTUS blog posts on the question here.

Given my interest in law and the value of peace, I read with interest the call for papers to be presented at a conference entitled “Law, Peace, and Violence: Jurisprudence and the Possibilities of Peace.”

It’ll be hosted by Seattle Journal of Social Justice on March 14, 2014, at the Seattle University School of Law in Washington state. Invoking thinkers like Thoreau and Fanon and Gandhi and King as well as scholarly colleagues like Mark Drumbl and Mary Dudziak, organizers ask a variety of intriguing questions:

► Can the law help forge a more peaceful world?books

► Do peaceful protest and rhetoric pose special hazards to vulnerable groups?

► Can we incorporate peace activism and theory into our practices and jurisprudence? Or is peaceful resistance – and even the concept of peace – anti-law?

► Is peace activism a luxury of the privileged?

Welcomed are abstracts of up to 500 words describing “traditional academic paper topics,”  as well as “abstract proposals for fiction, non-fiction, or visual art,” addressing issues related to inter alia poverty, violence, law, peace, war. Abstract deadline is September 2, 2013. Details in the full call for papers.

(hat tip to Faculty Lounge blog, with thanks to Ed Gordon)

powerobamaNews of Samantha Power’s nomination as U.S. ambassador to the United Nations prompted me to read her biography of that 68-year-old international organization. In truth, the book is a biography of the top diplomat killed 10 years ago when a car bomb gutted U.N. headquarters in Baghdad. Yet because that diplomat had effectively grown up alongside the United Nations – he was born fewer than 3 years after its Charter entered into force, and he would serve under 5 of its 8 Secretaries-General – Power’s Chasing the Flame: Sergio Vieira de Mello and the Fight to Save the World (2008) tells the life story of both the man and the organization. The book thus indicates what Power thought of the United Nations back when she was advising then-Senator Barack Obama on foreign policy.

Emphasized throughout Chasing the Flame is Vieira de Mello’s transformation from a man of humanitarian action alone to one who comes to realize, indeed to embrace, the significance of politics in humanitarian endeavors. Recounting his late-1980s role in repatriating Vietnamese refugees, Power wrote with disapproval of Vieira de Mello’s decision to “downplay his and the UN’s obligation to try to shape the preferences of governments” (p. 69, emphasis hers). She likewise criticized his early ’90s stance of neutrality while serving in UNPROFOR, the hapless U.N. Protection Force mission in Bosnia: “impartial peacekeeping between two unequal sides was,” she wrote, “its own form of side-taking” (p. 179). In contrast, Power conveyed approbation when she wrote that by the late 1990s, after working to return Hutu refugees to Rwanda, Vieira de Mello “was now convinced that UN officials would better serve the powerless if they could find a way to enlist the power of the world’s largest countries” (p. 219). According to Power’s epilogue, the key to harnessing that power is flexibility (p. 516-17):

power‘While many have responded to today’s divisions and insecurities with ideology, Vieira de Mello’s life steers us away from one-size-fits-all doctrine to a principled pragmatism that can adapt to meet diffuse and unpredictable challenges.’

The United Nations, she added (p. 519), has a critical role to play:

‘UN civil servants had to become more self-critical and introspective, accepting what had taken Vieira de Mello years to learn: that they are agents of change themselves and not simply the servants of powerful governments.’

In this book as in A Problem From Hell: America and the Age of Genocide (2002), Power put much blame on the U.S. government. The United States’ perception of its own self-interest often appeared short-sighted and inept. U.S. officials’ resistance to the International Criminal Court won them no favor. Ineptitude was especially evident in the U.S.-led invasion and occupation of Iraq – events that would place Vieira de Mello and other humanitarians in Baghdad on the fateful date of August 19, 2003.

Power herself began working for the U.S. government not long after Chasing the Flame was published. As Special Assistant to President Obama and Senior Director for Multilateral Affairs and Human Rights at the White House-based National Security Council, she spent years working on issues at the heart of her earlier writings.  (An account of a central effort, establishment of an Atrocities Prevention Board made up of officials from various U.S. agencies, was the subject yesterday of a New York Times article.) She’s reported to have played a pivotal role in the U.S. decision to intervene in Libya based on U.N. Security Council resolutions that invoked a concept discussed in her book, the responsibility to protect; to be precise,at p. 528 and elsewhere, Power stressed Vieira de Mello’s espousal of the emerging doctrine. These experiences may have adjusted Power’s views on the relation between the United Nations its member states. Yet most likely her 5 requirements for foreign policy success, distilled from her account of Vieira de Mello’s life, remain a constant. Quoted in full from p. 523, they are:

  • Legitimacy matters, and it comes both from legal authority or consent and from competent performance.
  • Spoilers, rogue states, and nonstate militants must be engaged, if only so they can be sized up and neutralized.
  • Fearful people must be made more secure.
  • Dignity is the cornerstone of order.
  • We outsiders must bring humility and patience to our dealings in foreign lands.

sotomayorMy Beloved World is a gem of a memoir. That’s not the least because of who wrote the 300-page volume released this past January. The author is 58-year-old Sonia Sotomayor, who’s served as a Justice of the U.S. Supreme Court since 2009. Her recollections display a candor rare in books by high-ranking public officials.

There is, for instance, her admission of childhood relief that the premature death of her alcoholic father might end conflict and bring stability to her household, as well as her account of the ignorance with which she and her high school sweetheart entered a marriage that would scarcely last through her college years. And there are moving reflections on her subsequent life as a single person. At page 232, Sotomayor tells how various factors, including the Type 1 diabetes with which she’s coped since age 7, influenced her decision not to become a parent:

‘My nephews are all the proof I could have needed of how emotionally satisfying adoption might have been. Still, there remained the fear that I might not be around long enough to raise a child to adulthood. Ultimately, the satisfaction of motherhood would be sacrificed, though I wouldn’t say it was sacrificed to career.’

At the heart of Beloved World are Sotomayor’s stories of growing up in the South Bronx in the ’60s, in a socially conservative, extended family. Many of her relatives had journeyed north from their native Puerto Rico. Family life swirled around their matriarch, Abuelita, the grandmother with a gift for giving love and a penchant for the late-night seance.

This was a world where Spanish dominated – except in the classrooms, where English-speaking nuns kept order by corporal punishment. Sotomayor writes frankly of the routine reality of beatings and fights, in homes and schools alike. She expresses approval that a recent visit back to Blessed Sacrament showed that teachers had adopted “a more nurturing approach since abandonment of the rod,” and then remarks,”Every generation has its own way of showing it cares.” (p. 88)

Her narrative resonates beyond the subculture it describes. Having grown up not many years later among Italian relatives in northwest Chicago, I found much in Beloved World that rang familiar: how acculturation pulled at homeland languages and lifestyles; how workplaces and parishes regulated life more directly than more distant governments; how diabetes or drinking or drugs or disability could bring shame and devastation; how some children managed to succeed in the larger world (often to their families’ bewilderment), while others found failure in every world they inhabited.

Sotomayor returns again and again to this last question of resilience – of how some children move forward even as others stumble. The book’s title hints at her answer: the foremost factor in success is love. Recalling her relationship with Abuelita, Sotomayor writes at page 16:

‘I have come to believe that in order to thrive, a child must have at least one adult in her life who shows her unconditional love, respect, and confidence.’

There is more, Sotomayor makes clear. Given the gift of “selfless love” (p. 254), the child must build on it, must learn to ask help from others. “[D]on’t be shy about making a teacher of any willing party who knows what he or she is doing,” she urges (p. 72). Sotomayor thus provides in Beloved World a string of inspiring stories about how and whom she asked, as well as the often-positive result of her asking for help. (Aspiring lawyers will welcome the consequent practice tips.)

All must be done in service of community. “There are no bystanders in this life,” Sotomayor insists (p.256); to the contrary:

‘Our humanity makes us each a part of something greater than ourselves.’

wilson_drawingAUGUSTA – Who would have guessed that this city at Georgia’s border with South Carolina, now best known as host to a premier golf tourney, used to be home for the boy who grew up to be the United States’ 1st global President?  Yet that’s what we discovered on driving through Augusta a few days ago: On a downtown corner amid a modern urban landscape stood 2 sturdy brick houses fronted by a plaque that declared “Boyhood Home of Woodrow Wilson.”

Our visit revealed that one house used to belong to the family of Joseph Lamar, who would become a Justice of the U.S. Supreme Court. Next door wilson_homelived Lamar’s childhood friend, fellow preacher’s son, and fellow teammate on the neighborhood baseball team, “Tommy” Wilson. That is how the future President was known in the dozen years he lived in Augusta –  he even etched “T O M”, in cursive letters, on a downstairs window. It was not until adulthood that he would prefer his middle name, Woodrow.

Upstairs a bedroom featured boys’ twin beds, toys like a hobby horse and jacks, and drawings made by Tommy himself. Most interesting was the sketch at top, apparently drawn while looking out of a window in the upstairs drawing room. The foreground depicts the train, which trundled by at all hours. Behind the train lies the church where Rev. Wilson was a minister; behind it, wounded Union soldiers stream into the military hospital there in that post-Civil War, Reconstruction era. Some believe that the experience of watching those injured soldiers affected the boy –wilson_horse indeed, according to our guide, this childhood exposure to the tragic costs of armed conflict is said to have contributed to President Wilson’s reluctance to send U.S. troops into the 1st World War.