Monthly Archives: June 2014

This year’s Nominating Committee of the American Society of International Law seeks a few good leaders.
Specifically, it seeks, from among its members, nominees – including self-nominees – to stand for election for a number of leadership positions, to be filled at the Society’s 109th Annual Meeting, set for April 8 to 11, 2015, at the Hyatt Regency Capitol Hill, 400 New Jersey Ave, N.W., in Washington, D.C. (Note: Deadline in the call for Annual Meeting proposals detailed here has been extended to the end of this month.)
ASIL’s immediate past President, Donald Francis Donovan (Debevoise & Plimpton), will chair the committee, whose members include Andrew Guzman (California-Berkeley), Karen Bravo (Indiana-Indianapolis), Rosemary Barkett (Iran-U.S. Claims Tribunal), David Bowker (WilmerHale), and, as an alternate, Elizabeth Andersen, the longtime ASIL Executive Director who soon will become Director of the American Bar Association Rule of Law Initiative.

According to the ASIL notice, “The Committee will seek to nominate those who have evidenced a willingness to contribute time and effort to the work of the Society, while endeavoring also to enhance the diversity of the Society’s leadership.” The Committee will be guided in its decisions by the Society’s Guidelines, available here, which the Committee advises every candidate and prospective nominator to review.  Positions are:

President-Elect: The term will be for 1 year; then, in April 2016, the President-Elect will be expected to succeed incumbent President Lori Damrosch, and so to serve a 2-year term as President. In keeping with tradition of alternating between practitioners and academics, it’s anticipated that the 2015 President-Elect will be drawn from among the Society’s practitioner members.
Vice Presidents: To be filled are 2 vacancies (an academic and a practitioner) for this position  – which carries a 1-year term, usually renewed once. Vice Presidents generally take the lead in overseeing a major ASIL activity or program.
Executive Council: To be filled are 8 vacancies on the Council, ASIL’s chief governing body. Members convene as a group twice a year, at the Annual Meeting in Washington, D.C., and at the traveling Midyear Meeting (this year, in Chicago). They serve 3-year terms and are expected to provide leadership to one or more of ASIL’s programs or activities.
Counsellors: To be filled are up to 8 vacancies, each for a 3-year term. Counsellors are nonvoting members of the Executive Council, who attend the Council meetings and are “chosen from from among the more senior members of the Society.”

Deadline for nominations is August 8, 2014; details on how to nominate here.

boscoPower politics managed to control the direction of the International Criminal Court in its 1st decade, but whether that dynamic will persist over the long haul remains to be seen: so concludes David Bosco in his superb book, Rough Justice: The International Criminal Court in a World of Power Politics (Oxford University Press 2014).

Bosco is an Assistant Professor of International Politics at American University in Washington, D.C., so it’s no surprise that Rough Justice theorizes a range of ways that relevant players might have behaved in the wake of the 1998 adoption by 120 states of the ICC’s Rome Statute. Of interest to him is the response of powerful states – in particular, the 5 permanent members of the U.N. Security Council – when confronted with the ICC, an institution whose formal rules give considerable power to weak states. Bosco posits that the major powers could have taken, to greater or lesser degrees, any of three paths:

  1. Marginalization, aimed to “ensure that the court remains weak and ultimately fades into irrelevance.” (p. 13)
  2. Control, not only “to keep the court within its mandate but also to ensure that the court does not interfere with important state political or diplomatic interests.” (p. 15)
  3. Acceptance, an embrace of the court likely brought on by pressure from other states and nongovernmental organizations, as well as the court’s own cultivation of a deservedly good reputation. (p. 16)

In the end, Bosco determines that marginalizing tactics by the court’s most vocal early opponent, the United States, fell short of their goal. But then, Bosco argues, the U.S. government and some other states succeeded in exercising control, by means including narrowly defined Security Council referrals and “informal signaling” of state preferences. (Some of my writings on issues Bosco raises may be found here, here, and here.) Looking at how actors within the ICC responded, Bosco finds that Prosecutor Luis Moreno-Ocampo took a “strategic” approach to his choice of situations. And Bosco asks whether Prosecutor Fatou Bensouda, who took over in 2012, will “chart a dramatically different course.” (pp. 181-87) (By way of beginning an answer, the new Prosecutor has revisited some policies subject to Bosco’s critique; reversing a 2006 decision by her predecessor (p. 119), for example, Bensouda reopened a preliminary investigation into allegations of abuse during the 2003-08 period of war in Iraq.)

These theoretical chapters bookend an outstanding chronology of the ICC’s origins and early years. Even close followers of post-Cold War efforts at international criminal justice will learn from Bosco’s concise, well-told, and exhaustively researched account.

Fifa2014WorldCupQualifiersAny of my fellow fans of sports and international law notice that all but 5 of the 32 teams playing in this year’s World Cup are states parties to the Rome Statute of the International Criminal Court? They are Argentina, Australia, Belgium, Bosnia and Herzegovina, Chile, Colombia, Costa Rica, Côte d’Ivoire, Croatia, Ecuador, England (United Kingdom is the state party), France, Germany, Ghana, Greece, Honduras, Italy, Japan, Mexico, Netherlands, Nigeria, Portugal, Republic of Korea, Spain, Switzerland, Uruguay, and, of course, the host state, Brazil. (image credit)

The 5 nonparty outliers? Algeria, Cameroon, Iran, Russia, and, of course, the United States.

The combined victory record of those outliers = 1 win, out of 6 games played. Just sayin’.

Following a raft of ratifications this week, the Arms Trade Treaty is 4/5 of the way toward entry into force.

Paying-the-priceDepositing their instruments of ratification on Tuesday were Australia, Austria, Belgium, Burkina Faso, Jamaica, Luxembourg, Saint Vincent and the Grenadines, and Samoa. They join 30 other countries that’ve become full members of the treaty since its adoption by the U.N. General Assembly on April 2, 2013. Ten more joinders are needed for the treaty to take effect.

In its 28 articles, the Arms Trade Treaty provides for states parties’ regulation of traffic in a range of arms, from battle tanks to light weapons. (Prior posts available here.) As indicated by the Control Arms poster above, regulating the latter is a principal aim of treaty proponents. (image credit)

Among the 5 permanent members of the U.N. Security Council (among them major arms-exporting states), Britain and France have ratified. The United States signed last September, but the treaty has not been presented to the Senate for consideration. China has not signed; Deutsche Welle reported this week:

‘China has indicated that it would consider signing if the US ratified, which is unlikely to happen.’

And in late May, the Voice of Russia reported that the Russian Federation would not sign, for the following reasons:

‘Russia considers this document to be not completely thought through. It also discriminates against the Russian military-industrial complex.’

megVery seldom (read never) do I take part in online campaigns, but today I am compelled to make an exception.

A middle school teacher here in Athens, Georgia, has achieved the amazing feat of winning a Fulbright Distinguished Award in Teaching, 1 of only 43 awarded this year in the entire country. The award will allow her to spend the fall semester in  England, where she plans to enrich her already considerable knowledge about the Holocaust, with a focus on women’s roles as victims and perpetrators.

She is Meghan McNeeley (above), who’s taught at Clarke Middle School since 2000. Her languafrnakge arts class introduces 8th graders to the Holocaust through study of Anne Frank: The Diary of a Young Girl  (prior posts) – study that includes not only reading of the iconic book, but Q&A on the context in which it occurred, as well as students’ preparation of personal timelines comparing what Frank was doing at various ages to their own achievement at those same age benchmarks. Her style, on this and other assignments such as the annual Elizabethan Fair, is one to which my own son responded with fervor when she taught him a few years back. He’s just one of many students whom she’s inspired to become writers.

Ms. McNeeley’s work in this area includes visits to Auschwitz and service as a Teacher Fellow at the U.S. Holocaust Memorial Museum.

The use of Diary to acquaint students with profound issues of peace and war, human rights and human security deserves support – support that Ms. McNeeley now needs. The Fulbright award covers some of her expenses, but she will have to forgo her schoolteacher’s salary for the semester, and so she’s seeking Go Fund Me contributions to make up the shortfall. You can donate here if you’re so inclined.

gassed

In this month that marks the centenary of World War I, the U.S. Supreme Court evoked an epic image of that global conflict. Thus was rejected today the prosecutorial conflation of chemical warfare with what the Court in Bond v. United States called an “unremarkable local offense.”

The image is the one above: John Singer Sargent’s 1919 painting, Gassed. Fully 20 feet wide and 7-1/2 feet tall, it hangs in the Imperial War Museum in London. (image credit) Writing for a 6-member majority, Chief Justice John G. Roberts, Jr., described the scene, one that Sargent had encountered in 1917 on a battlefield in France:

‘[T]wo lines of soldiers, blinded by mustard gas, clinging single file to orderlies guiding them to an improvised aid station. There they would receive little treatment and no relief; many suffered for weeks only to have the gas claim their lives. The soldiers were shown staggering through piles of comrades too seriously burned to even join the procession.’

The tragedy, Roberts wrote, contributed “to an overwhelming consensus in the international community that toxic chemicals should never again be used as weapons against human beings” – a consensus reflected in instruments like the 1992 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, which today has 190 parties. Among them is the United States, which, Roberts explained, “gave domestic effect” to the obligations it had assumed under that treaty in 1998, when it passed the Chemical Weapons Convention Implementation Act, 18 U.S.C. § 229 et seq. The statute makes the use of “chemical weapons,” a federal crime, punishable by death if the use resulted in death. It “‘goes without saying,'” Roberts concluded, that Congress had in mind tragedies along the lines depicted above – or at least as grave as the mid-1990s sarin gas attacks in Japan. He deemed well out of Congress’ mind the facts at bar: “an amateur attempt by a jilted wife to injure her husband’s lover, which ended up causing only a minor thumb burn readily treated by rinsing with water.”

This overturning of a federal conviction on federalism grounds did more than give perspective on the acts under review. It also avoided the asked-for reconsideration of Missouri v. Holland (1920), a precedent nearly as old as Sargent’s painting. There a unanimous Court upheld a federal statute that gave domestic effect to a 1916 treaty by regulating the hunting of birds that fly between the United States and Canada. Invoking the Constitution’s treaty-making and supremacy clauses, Justice Oliver Wendell Holmes, Jr., wrote:

‘If the treaty is valid, there can be no dispute about the validity of the statute under Article I, § 8, as a necessary and proper means to execute the powers of the Government.’

Holmes’ terse reasoning invites questions, many of them bruited about in the months since the Court announced it would review the decision below in Bond. (See, for example, this article by my Georgia Law colleague Harlan Cohen.) Roberts’ majority opinion declined, but 3 Justices who disagreed with him accepted that invitation. “[T]he Treaty Power is itself a limited federal power,” Justice Clarence Thomas wrote in a concurrence-in-the-judgment that Justices Antonin Scalia and Samuel Alito, Jr., joined. In another concurrence-in-judgment Scalia, joined by Thomas, attributed others’ reluctance to revisit Holland to the nature of the case. “We would not give the Government’s support of the Holland principle the time of day,” they insisted, “were we confronted with ‘treaty-implementing’ legislation that abrogated the freedom of speech or some other constitutionally protected individual right.” Whether they are right remains a question for another day.