WASHINGTON – Yesterday I had the honor of serving as Distinguished Discussant for the 16th Annual Grotius Lecture, a keynote event at the ongoing joint meeting of the American Society of International Law and the International Law Association. Delivering the lecture was NYU Global Law Professor Radhika Coomaraswamy, whose former posts include Special Representative of the U.N. Secretary-General on Children & Armed Conflict and U.N. Special Rapporteur on Violence against Women. (event video here) Her talk was entitled “Women and Children: The Cutting Edge of International Law.”

Below is a version of my remarks in response, prepared and delivered in my personal capacity. The final, fully footnoted article is set to appear in due course, along with that of Professor Coomaraswamy, in the American University International Law Review, thanks to the lecture’s cosponsor, American University Washington College of Law.

The Post-Postcolonial Woman or Child

“‘Let the child be excused by his age, the woman by her sex,’ says Seneca in the treatise in which he vents his anger upon anger.” So wrote the namesake of this lecture, Hugo Grotius, in his masterwork entitled The Law of War and Peace. With this quotation, “Let the child be excused by his age, the woman by her sex,” Grotius traced to the writings of an ancient Roman philosopher the injunction against harming women and children in time of war. Grotius’ reiteration of Seneca’s words tacitly admitted that as late as 1625, armies still were violating the injunction. Sadly, the same is true 389 years later. Today neither women nor children are excused from wartime assaults, violence, and upheaval. In Syria alone, three years of conflict have left well over 100,000 persons dead, and forced another 2.5 million persons to flee their country. Women and children are included in those statistics. Conflicts elsewhere generate similarly grim numbers, as Professor Coomaraswamy indicated by her references to the Central African Republic, to the Democratic Republic of the Congo, and to her own homeland of Sri Lanka. Indeed, outrage at the persistent violation of laws protecting women and children undergirds the Grotius Lecture that we have just heard.

Commensurate with her distinguished career in international law academia, policy, and practice, Professor Coomaraswamy has presented a vast and intricate tapestry of global developments. It would be impossible for me to comment in full in the time allotted. Instead, I propose to pull five strands out of the fabric of her lecture and to weave them anew, as a means to invite the imagining of a possible future, that of “the post-postcolonial woman or child.”
My first strand addresses Professor Coomaraswamy’s statements of concern about postcolonial theorists prevalent in the global south. These scholars, she said,

‘reject the human rights framework as part of the ‘liberal’ ‘imperialist’ project especially when it comes to cultural practices. … [They] rejec[t] the dominance of the European Enlightenment and the sacredness of the power of reason.’

My response might raise hackles among some of those scholars, for it begins with this claim: We are all postcolonials now.

By way of example, both of my own countries of citizenship are postcolonial states.

One is Ireland. This is the eighth decade since the adoption of the Irish Constitution, a postcolonial charter from which India later borrowed. Yet as demonstrated by this week’s first-ever visit to England by an Irish President, remnants of eight centuries of colonization still litter both islands.

My other country is, of course, the United States. Here, the structure of government rests upon the postcolonial intuitions of the men who wrote its Constitution. Having won a revolution, these framers professed to borrow the best and to reject the worst from their colonial past. The choices they made two hundred years ago – admirable choices like the checking of power and shameful ones like slavery – influence U.S. policy to this day. To this day, moreover, Americans see themselves as having repulsed foreign tyranny and invented a superior form of sovereignty. The American identity thus remains postcolonial – also, perhaps, preimperial. This self-perception contributes to seemingly contradictory impulses that have coexisted for much of American history; to be specific, the U.S. affinity for intervention overseas and the U.S. aversion to scrutiny from abroad.

Such interrelations of subjugation and independence, of isolation and cooperation, of the internal and the international, pervade our world. Relationships of this sort may be found to some degree in and among all member states of the United Nations. They pertain as well to nonmember entities, such as Taiwan, Kosovo, and Palestine. It is in our efforts to restitch the remnants of colonization – and maybe, in places like Kharkiv and Crimea, to confront a new colonial patchwork – that we, the members of the global community, are revealed as postcolonials.

This is especially the case with regard to international law, the topic that structures the second strand that I pull from Professor Coomaraswamy’s rhetorical tapestry. International law is said to have forefathers – a few Spanish priests and our lecture’s namesake, Grotius. The periods of colonization in which these men lived shaped their writings; in turn, their writings shaped, even justified, the colonial project. Grotius was, among many other things, a lawyer for the Dutch East India Company. His position in the colonial era is evident in his espousal of the law of prize. It also surfaces in his acceptance of slavery as a fact of the law of nations – albeit a fact “contrary to nature,” a practice that the “better nations” would do well to avoid.

Our own international legal system operates in reaction to that colonial era. In the last half-century the norm of equal sovereignty empowered new states as they emerged out of eroded empires. This dispersion of authority is apparent in bodies like the General Assembly. Yet significant power still resides exclusively in certain states – most notably, the Security Council’s five permanent members, each of whom has, at various times, shown an imperialist streak. Vestiges of colonialism – what Professor Coomaraswamy and many others have called “double standards” – remain hallmarks of our postcolonial epoch.

We are thus in need of post-postcolonialism. To paraphrase Gayatri Spivak, not only must the subaltern be permitted to speak, but when she does, others must listen, must admit her as an equal to their ongoing conversation, and must, eventually, adjust their behavior to accommodate her place in their world. As scholars like Mireille Delmas-Marty have stressed, this process, of what Adeno Addis aptly labeled “dialogic pluralism,” must alter the structures of social and economic inequality within which the seeds of armed violence germinate.

What did our putative forefather of international law have to say about women and children?

His historical account afforded little relief for either. “Included in the law of war,” Grotius wrote, was a “right to inflict injury” that extended to “the slaughter even of infants and of women … with impunity.” Yet his very mention of women and children hinted at a preferred rule, one that he soon made explicit. “Children should always be spared,” Grotius wrote, and so too most women. Among his most plaintive example in support of this injunction are these words, written by another ancient Roman:

“‘For what crime could little ones have deserved death?’”

Grotius typically portrayed women, no less than children, as “innocents” who should be exempted from the ravages of war. Notably, he included within this exemption a ban on sexual assault. Grotius acknowledged that “many” writers had maintained “that the raping of women in time of war is permissible.” He disagreed. Grotius insisted on what he called “a better conclusion,” enforceable

‘not only as a part of military discipline, but also as a part of the law of nations; that is, whoever forcibly violates chastity, even in war, should everywhere be subject to punishment.’

These passages depict women and children as bystanders, beings not fully conscious of the world around them – not actors, but rather objects, in the tableau of the battlefield. They are to be protected, rescued even, in service of the actors’ notions of honor. A social scientist would say they have no agency. They are, first and last, victims.

The depiction rings familiar almost four centuries later. Mark Drumbl, Fionnuala Ní Aoláin, and Dianne Otto are just a few of the many scholars demonstrating that the discourse of victimhood continues both to motivate and to justify global action on behalf of persons perceived as victims. Here too, then, remnants of a colonialist power dynamic persist in what is supposed to be a postcolonial era.
What is to be done?

Makers of post-postcolonial international law should aspire to deploy the tools of motivation and action in a way that avoids reviving outdated notions of societal honor, and instead honors the actual humans who endure violence amid war. This is fourth strand that I draw from Professor Coomaraswamy’s talk, not only because of her express mention of honor killings, but also because of her recognition that “womenandchildren” is not a single word, that discrete attention must be paid to the many different hues of human experience. Victimization may be an aspect of that experience, but it is not the only one.

Consider this sentence from the boyhood memoir of one who survived World War II:

‘Children, even relatively young children, learn to be cunning or street-smart when circumstances demand, and they are fast learners when they have to be in order to live another day.’

The author is Professor Thomas Buergenthal, whose career has included service as judge on the International Court of Justice.

Another backward glance reveals glimpses of Buergenthal’s insight in Grotius’ time, and not only because Grotius himself began the practice of law at the ripe old age of sixteen. Was there, in that time, any foremother of international law?

An early President of the American Society of International Law, James Brown Scott, once cited “that noble woman who preserved him” – that is, Grotius – “for us and for international law.” That woman was his wife, Maria de Groot. When Dutch authorities detained the couple as political dissidents, she and a maidservant stuffed Grotius in a trunk and smuggled him to France. (image credit) There he completed The Law of War and Peace. As long ago as the seventeenth century, Maria and her maid flouted the stereotype of passive womanhood.

The same is surely true of two other women of that era. One is the Spanish queen who commissioned the voyage of Columbus; the other, the queen who waged war in England’s first colony and built a global navy whose power encroached upon the Grotian tenet of freedom of the seas. These two monarchs contributed mightily to colonialism, the practice that Grotius and the Spanish priests theorized. If Grotius is a forefather, therefore, Isabella and Elizabeth are foremothers of international law. Perhaps it is in recognition of their ruthless reigns that Grotius stopped short of advocating a blanket exemption for women. To the contrary, he maintained that wartime violence could be wreaked against women who “have committed a crime which ought to be punished in a special manner”– women who “take the place of men.”

This and other references to punishment direct me to my final strand, accountability. On this, I fear that Professor Coomaraswamy is rather more sanguine than I. She cites with optimism U.N. monitoring mechanisms, Security Council resolutions, and International Criminal Court prosecutions. Yet she pretermits the apparently stalled status of the Council proposal to sanction persistent perpetrators of grave violations like recruiting or using child soldiers. And though the ICC broke ground by convicting a militia leader of that very war crime, it must be noted that two subsequent verdicts acquitted other leaders of similar charges, despite judges’ findings that child soldiers were everywhere during the conflict under review. What is more, not one ICC trial has resulted in conviction on charges of sexual violence. Considered in light of developments at the Security Council, these facts compel us:

► 1st, to put to one side claims that legal technicalities explain the ICC verdicts;
► 2d, to inquire whether we have entered a new era of soft – some would say no – accountability; and
► 3d, if so, to ask what we are going to do about it.

(Our inquiry must explore the freedom from accountability that countries including the United States enjoy by dint of their P-5 status.)

So where does this leave us?

If not victim, who is our post-postcolonial child or woman, and how should international law both protect and empower her? Initially, we must accept that she may not be a she. This is an insight gaining currency in the last couple years, as states and human rights organizations begin to address sexual violence and other wartime harms done to boys and, yes, even to adult men. And there is much to be gleaned from the scholarship of Martha Albertson Fineman. It posits that what warrants protection is vulnerability, not sex, not age. It thus refocuses analysis away from a singular identity as “woman” or “child,” and toward the varied ways that all persons, on account of some traits but not others, at some times in their lives but not others, may be vulnerable. It is to those moments of vulnerability that she would direct the making and implementation of law. Fineman’s focus brings into view an image that transcends both colonial and postcolonial assumptions of societal strata and personal predilections. It thus bears promise for the envisaging of a post-postcolonial future.

Who knows? Maybe a culture that admits that everyone, at times, is weak will prove less eager to initiate armed violence, less apt to tolerate the violence done by structural inequalities, and more willing to construct a just and enduring peace.