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The new print edition of the American Journal of International Law includes my essay on last February’s International Court of Justice decision respecting the Chagos islands. This post describes that publication and takes note of developments since it went to press.

My essay, “International Decisions: Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965,” 113 AJIL 784 (2019), may be accessed at this SSRN link or at the AJIL website.

The essay outlines the ICJ advisory opinion, which is available here. It explains that the Chagos Archipelago, a group of islands located in the Indian Ocean, was considered part of Mauritius when both formed a British colony. But after Mauritius won independence in the mid-1960s, the United Kingdom kept the archipelago, naming it the British Indian Ocean Territory, then forcibly removed its inhabitants and leased it for a US military base, CNIC Naval Support Facility Diego Garcia, that is still there today. The legality and effects of these actions lay at the heart of the ICJ’s advisory proceedings, instituted following a request by the United Nations General Assembly.

The abstract elaborates:

“Decolonization and its quite valid discontents lay at the center of the recent International Court of Justice advisory opinion regarding the territory and populations of the Chagos Archipelago, located in the Indian Ocean. Answering questions posed by the UN General Assembly, the concluded that because these islands were detached from Mauritius as a condition of independence, the decolonization of Mauritius had not been completed in accordance with international law. The Court further ruled unlawful the United Kingdom’s continued administration of the Chagos Archipelago and called upon all UN member states to aid completion of the decolonization process. As detailed in this essay, the advisory opinion contained significant pronouncements on decolonization, on the right of all peoples to self-determination, and on the formation of customary rules respecting both.”

Notably, all on the ICJ bench agreed with the result except for the U.S. judge, Joan E. Donoghue, who maintained that the court ought not to have exercised its discretion to consider the issue on the merits.

Since 2017, for the 1st time in the court’s history, there has been no ICJ judge from the United Kingdom. As my essay indicates, UK officials spoke out against the court’s advisory opinion, framing it as a bilateral dispute over sovereignty, and stating that Britain would not “cede sovereignty to Mauritius” until Britain determined the archipelago “is no longer required for defence purposes.”

After the essay went to press, the United Kingdom reiterated that position in a 30 September 2019 letter to UN Secretary-General António Guterres, requesting that it be circulated to the General Assembly.

Two weeks earlier, Pope Francis had weighed in, on behalf of the Chagossians. In his words:

“Not all things that are right for humanity are right for our pocket, but international institutions must be obeyed.”

Maintaining the current British policy is the Tory government led by Prime Minister Boris Johnson. Its policy stands in contrast with that of Labour, the Tories’ principal rival; as the Guardian reported on Friday:

“Jeremy Corbyn has pledged to renounce British sovereignty of the remote Chagos Islands and respect a UN vote calling for the archipelago to be handed back to Mauritius.”

In short, the immediate fate of the islands may depend – not unlike Brexit – on the Britain’s next general election, set for 12 December.

On this, the 30th anniversary of the Convention on the Rights of the Child, the United Nations has just published “Child Rights, Conflict, and International Criminal Justice,” my 1st contribution to the UN Audiovisual Library of International Law. (See also here.)

The 41-minute lecture’s available in video (here) and audio formats (SoundCloud, Apple Podcasts, and Google Podcasts).

After noting the particular harms that children endure in armed conflict and similar violence, the 8 November 2019 lecture proceeds to trace the developments in child rights that led to adoption, on 20 November 1989, of the Convention on the Rights of the Child. Next, it describes parallel developments in two other key legal fields, international humanitarian law and international criminal law. After looking at relevant provisions of the Child Rights Convention and other instruments – in particular, the 1998 Rome Statute of the International Criminal Court – the lecture concludes by evaluating efforts to ensure the rights of the child by preventing and punishing international crimes against and affecting children.

Also provided is a list of related materials on which the lecture relies.

My thanks to all at the Codification Division of the UN Office of Legal Affairs for the honor of commemorating the treaty, about which my lecture observed:

“As for the 1989 Child Rights Convention itself – today it has 196 parties, including the Holy See, the State of Palestine, and every UN member state except the United States of America. Because of its nearly universal acceptance, as well as its comprehensive contents, the Convention has served for the last thirty years as the pre-eminent global charter on child rights and protection.”

“For those of us who enjoyed the rare privilege of clerking for Justice John Paul Stevens … there was only one Boss. And it was not Bruce Springsteen.”

WASHINGTON – So begins “Justice John Paul Stevens leaves behind a rich legacy that we cannot forget,” the op-ed I published last week in the Washington Post. It offers personal and professional reflections on the Supreme Court Justice, for whom I served as a law clerk in OT’88.

He died last Tuesday, just months shy of his 100th birthday, after serving on the Court for an extraordinary 3-1/2 decades, from 1975 to 2010.

I’d written as well in the past about aspects of his career:

John Paul Stevens, Originalist,” 106 Northwestern University Law Review 743 (2012)

John Paul Stevens and Equally Impartial Government,” 43 University of California Davis Law Review 885 (2010)

John Paul Stevens, Human Rights Judge,” 74 Fordham Law Review 1569 (2006)

John Paul Stevens and the American Century” (SCOTUSblog, April 20, 2010)

Three More Anecdotes from Clerks” (Blog of Legal Times, April 11, 2010)

Steeped in Tradition” (Blog of Legal Times, April 9, 2010)

Memorial services for Justice Stevens begin this morning, with a ceremony in the Court’s marble rotunda, where he will lie in repose till midnight, with interment at Arlington National Cemetery tomorrow.

It’s an honor to be in attendance at these historic events.

(At top, 2007 AP photo (credit); below, poster for 2009 symposium I organized while a law professor at the University of California-Davis

Honored to have contributed on the doctrine of command responsibility to the newest edition of ICC Forum, an online publisher of essays on human rights and international criminal law. My essay was one of several responding to this question, posed by the editors:

“What does the Bemba Appeal Judgment say about superior responsibility under Article 28 of the Rome Statute?”

My own response, entitled “In Bemba, Command Responsibility Doctrine Ordered to Stand Down,” amplified an argument I’d made in an EJIL: Talk! contribution last year (prior post).

Specifically, it traced the development of the international-humanitarian- law/law-of-armed-conflict-doctrine that places on military commanders a burden greater than that shouldered by other combatants. It then turned to the International Criminal Court Appeals Chamber’s 2018 judgment in Bemba. The majority’s interpretation of the ICC Statute’s command-responsibility provision, my essay argued, risks tolerating “derelictions of duty” so as “to condone indiscipline,” and thus “to increase the risks of the very harms that the doctrine of command responsibility is intended to dispel.” As a result, perhaps “no one can be held to account.”

Other invited experts who contributed essays were: Miles Jackson, Associate Professor of Law, Jesus College, University of Oxford; Michael A. Newton, Professor of the Practice of Law and Political Science at Vanderbilt University Law School; Nadia Carine Fornel Poutou, Executive President Association of Women Lawyers of Central African Republic; and Leila Nadya Sadat, James Carr Professor of International Criminal Law at Washington University School of Law.

ICC Forum is supported by the Promise Institute for Human Rights at UCLA School of Law; UCLA Law Professor Richard H. Steinberg serves as Editor-in-Chief.

“On sundry occasions in US history, the president has defied a check that a co-equal branch of the federal government has sought to place on him (to date, the president has always been a man). Such defiance, alone, is confrontation. But confrontation soon will escalate to crisis if the legislative or judicial branch abdicates its duty fully to check unwarranted executive behavior.”

The passage is drawn from my comment in response to the question whether the United States is in a “constitutional crisis” or “confrontation.” My comment appears as part of an expert legal roundup at Vox, compiled by journalist Sean Illing.

The comment begins with the observation that the U.S. Constitution is the product of crisis, and also a bold, 230-year experiment in which “Americans dared to promise equality in an unequal world, to prescribe government by the rule of law rather than the whim of one man” Setbacks continue. Respecting the promise of equality, “persons of color, women, and others continue to struggle … for their due place in the American polity.” Respecting the prescription for rule by law, it remains to be seen whether the unfolding separation-of-powers confrontation will constitute crisis.

The full roundup is here. Also contributing were: Victoria Nourse, Georgetown Law; Keith Whittington, Princeton; Jessica Silbey, Northeastern Law; Peter Shane, Ohio State Law; Mark Tushnet, Harvard Law; Alice Ristroph, Brooklyn Law; Sanford Levinson, Texas Law; Aziz Huq, Chicago Law; Tom Ginsburg, Chicago Law; and Ilya Somin, George Mason Law.

Over the last decade it was my honor on occasion to invite Judge Pat Wald to join in a project, to contribute a writing or to speak at an event. Invariably she accepted with the same wry caveat: “Yes, if I am still here by then.” Happily she always was still “here,” enlivening every project to which she contributed. But now she is not. News media reported that Patricia Anne McGowan Wald died in her Washington home yesterday, having succumbed at age 90 to pancreatic cancer.

Many obituaries will focus on her prodigious and inspiring career in the United States: her journey, from a working-class upbringing in a single-parent family, to practice as a lawyer on child rights and in the Department of Justice, to service, in the District of Columbia Circuit, as the 1st woman Chief Judge of a U.S. Court of Appeals, and quite recently, as an Obama appointee to the Privacy & Civil Liberties Oversight Board.

We international lawyers also will recall Wald’s fierce service as a judge on the International Criminal Tribunal for the former Yugoslavia. There, she took part in noted judgments, among them a genocide conviction in Prosecutor v. Krstić and a “turning point” appellate ruling in Prosecutor v. Kupreškić.

Even after retiring from the ICTY, Judge Wald championed international criminal justice, placing particular emphasis on women. It was my privilege to welcome her interventions on these subjects, and at times to aid publication of her contributions (Pat’s computer savvy was, it must be said, rudimentary).

Just last year, our Georgia Journal of International & Comparative Law was honored to publish Pat’s essay “Strategies to Promote Women’s Participation in Shaping International Law and Policy in an Era of Anti-Globalism,” based on remarks she’d given here at the University of Georgia School of Law Dean Rusk International Law Center. They were a highlight of our 10th birthday conference for IntLawGrrls blog, not least because Pat referred to us assembled scholars and practitioners as “you ‘young people’ in the room.” She traced the beginnings of international criminal justice, then said:

“I do not suggest that the process of integrating women as upfront participants in international courts, let alone the inclusion of the crimes most commonly committed against women as worthy subjects of international criminal law jurisprudence, has been completed. More accurately, these developments had just gotten off to a reasonable start at the moment that global politics seem to have begun to shift toward a so-called anti-globalist populism. My central point, therefore, is that we must strategize in the face of a desired, yet elusive future.”

Her strategies: ally to strengthen international law, international legal education, and global-mindedness in many sectors, including the arts; “protec[t] the venues in which women have had significant impact,” including the International Criminal Court and related forums; and work globally to raise women’s awareness “about educational opportunities, rights to land ownership and profits, how to start a small business, how to farm efficiently, how to participate in voting or run for office, and about legal rights to divorce or separation.”

Issues like these were prominent in a special issue of the International Criminal Law Review, “Women and International Criminal Law,” dedicated to the Honorable Patricia M. Wald, for which I served as a co-editor along with Jaya Ramji-Nogales, Beth Van Schaack, and Kathleen A. Doty. Wald herself wrote on “Women on International Courts: Some Lessons Learned” for vol. 11 no. 3 (2011). And as shown in that issue’s table of contents, additional contributors included many whom Judge Wald’s life and work had touched: Supreme Court Justice Ruth Bader Ginsburg and Harvard Law Dean Martha Minow, along with Kelly Askin, Karima Bennoune, Doris Buss, Naomi Cahn, Margaret deGuzman, Katharine Gelber, Laurie Green, Nienke Grossman, Rachel Harris, Dina Francesca Haynes, Jennifer Leaning, David Luban, Rama Mani, Jenny Martinez, Fionnuala Ní Aoláin, Katie O’Byrne, Lucy Reed, Leila Nadya Sadat, and David Tolbert. The issue stemmed from a 2010 roundtable (pictured below) that then-Executive Director Elizabeth “Betsy” Andersen hosted at the American Society of International Law, an organization Judge Wald long supported.

Pat’s support for IntLawGrrls predated this event. In 2009, she had contributed a trilogy of essays to the blog: 1st, “What do women want from international criminal justice? To help shape the law”; 2d, “What do women want? Tribunals’ due attention to the needs of women & children”; and 3d, “What do women want? International law that matters in their day-to-day lives”.

In keeping with the blog’s practice at that time, Pat dedicated her IntLawGrrls posts to a transnational foremother, “a wonderful German/Jewish woman, Gisela Konopka,” a University of Minnesota social work professor with whom Pat had collaborated in a lawsuit against the Texas Youth Authority. In her lifespan of 93 years, Konopka, Wald wrote, “fought in prewar Germany for children’s rights, was put in a concentration camp, managed to get out and work her way through occupied Europe to America, where she became the champion of children, especially girls, who got in trouble with the law.” Explaining how Konopka had influenced her, Judge Wald penned a sentence that today does service as her own epitaph:

“She inspired me as to what an older woman can do right up to the point of departure to help those behind.”

Coomee Rustom Strooker-Dantra, 1937 (credit)

I’m very pleased to have posted a draft of my most recent paper, Glimpses of Women at the Tokyo Tribunal, online. The work arises out of my ongoing scholarly research into the roles that women and others played in the post-World War II international criminal trials. (prior posts) This research focuses primarily on trials at Nuremberg rather than at Tokyo; however, as this essay indicates, the issues and even the personnel in the two forums overlapped considerably.

Many women are brought to the fore in Glimpses; for example: 5 American lawyers, Virginia Bowman, Lucille Brunner, Eleanor Jackson, Helen Grigware Lambert, Grace Kanode Llewellyn, and Bettie Renner; 1 Dutch lawyer, Coomee Rustom Strooker-Dantra, who had been born in what is now Myanmar; and 1 American, memoir-writer Elaine B. Fischel, who assisted defense counsel but did not herself  become a lawyer until after her Tokyo service.

From left, Eleanor Jackson, Virginia Bowman, Grace Kanode Llewellyn, Bettie Renner, and Lucille Brunner, in Los Angeles Times, 15 April 1946 (credit)

Other women also figure – including some who have been introduced into the Tokyo narrative through a documentary, a feature film, and a miniseries, each analyzed in the essay.

Intended as a chapter in a forthcoming essay collection marking the 70th anniversary of the Tokyo Trial judgment, this draft manuscript forms part of the Dean Rusk International Law Center Research Paper Series at SSRN. It may be found in numerous SSRN sites, including the International, Transnational and Comparative Criminal Law eJournal, of which I am the Editor-in-Chief. I was honored to have presented it during last November’s American Society of International Law Midyear Meeting Research Forum at UCLA Law.

Here’s the abstract:

Compared to its Nuremberg counterpart, the International Military Tribunal for the Far East has scarcely been visible in the seven decades since both tribunals’ inception. Recently the situation has changed, as publications of IMTFE documents have occurred alongside divers legal and historical writings, as well as two films and a miniseries. These new accounts give new visibility to the Tokyo Trial – or at least to the roles that men played at those trials. This essay identifies several of the women at Tokyo and explores roles they played there, with emphasis on lawyers and analysts for the prosecution and the defense. As was the case with my 2010 essay, “Portraits of Women at Nuremberg,” the discussion is preliminary, offering glimpses of the Tokyo women in an effort to encourage further research.

The full manuscript may be downloaded here.

Elaine B. Fischel with Tokyo defense counsel, 12 September 1946 (credit)