In passing: Judge John T. Noonan, Jr.

“The defendant before you is an innocent man.” That claim, rarely heard in a court of appeals and still more rarely sustained, compels the attention of the judge. All our provisions for appeal, our careful scrutiny of the record, our hearing of argument, our conferencing and analysis are designed to prevent just such a perversion of the criminal process as the infliction of punishment upon an innocent person. It is not our way to imprison a defendant because we do not like him or find his conduct worthy of disapproval. If he is to be stamped a felon by federal law, he must have committed a federal crime. If he has not, he is innocent. Such Marsh contends he is. Such Marsh should be found to be.

So wrote Judge John T. Noonan Jr., who died Monday at age 90. (photo credit) It appeared in United States v. Marsh, a 1994 decision by the U.S. Court of Appeals for the Ninth Circuit.

For all but a very few, Marsh was a mine-run case. And yet, I personally have never forgotten the quoted passage. For I was the Assistant Federal Public Defender who, late on the morning of November 3, 1993, stood before 3 judges – all of them slouched in their chairs, stern-faced and not a little tired after hearing a long string of short oral arguments – and began the scant 10 minutes allotted for her client’s quixotic appeal with these words:

“The defendant before you is an innocent man.”

It is a bold claim for any defense lawyer to make, in any case. It was especially bold in this case, which involved same-sex phone-sex.

Years earlier, my then-quite-young-and-poor client had met a not-poor, then-in-the-prime-of-his-life man. For decades they were often apart yet still in touch, often communicating by phone. By the early 1990s the elder man was quite elderly. His grown daughter discovered the still-continuing phone calls, and the consequent transfers of her father’s funds. The discovery spurred shock, then outrage, and then a federal complaint, trial, and conviction.

The trial transcript indicates that many in the courtroom found the underlying conduct and calls (the sexual content of which was discussed in graphic detail) distasteful, perhaps even repulsive. Perhaps it was for that reason that the prosecutor forgot to elicit any evidence of an essential element of this charged violation of the Hobbs Act; in this extortion case, to be precise, the prosecutor forgot to elicit even a scintilla of testimony to the effect that the alleged victim paid money out of fear.

It was my position that this utter failure to prove a material element of the offense compelled reversal of the conviction:

“The defendant before you is an innocent man.”

On hearing these words, 2 on the panel looked annoyed – no surprise given the overall tone of the case. But the 3d sat up straight and began asking questions. It was Judge Noonan, a Berkeley Law professor and noted scholar of law and Catholicism, whom President Ronald Reagan had appointed to the 9th Circuit in 1985. Noonan’s questions and my answers eventually produced the passage quoted above, published in dissent from the panel majority’s decision to sustain the conviction.

Anyone who has practiced federal criminal defense will understand this as a kind of victory, despite the larger loss of the appeal.

I met Judge Noonan in person not long after, in a lunch arranged by my supervisor, then-Federal Public Defender Barry Portman, another giant in the San Francisco federal courthouse. Only then did I learn that the question of when – even whether – words alone can provide the basis for criminal punishment was an issue with which the judge long had grappled. His thoughts gelled in one of his several significant writings, Bribes: The Intellectual History of a Moral Idea (1987). (Other works inclined toward legal history and philosophy, among them his masterful book-length case study, The Antelope (1990).) The judge was erudite, a gentleman – even courtly – and I was honored to have met him.

When I entered academia, Marsh joined the repertoire of practice stories I deployed to engage my Criminal Law classes. The experience stayed with me – and long after the decision, I learned that this lingering effect was not mine alone. A student alerted me to the following passage in a symposium piece, “The Foxboro Referee, the Boston Judge, the County Juror, and the Conscience of the Court,” 2003 U. Ill. L. Rev. 1403:

Call it the heart or the spirit or the inner person, there are in each of us perceptions and convictions that cannot be reduced to rules external to us. It is that internal core of the judge that a good advocate seeks to reach. “I represent an innocent man,” declared Diane Marie Amann in a criminal appeal I heard argued six years ago. I had never before heard such a claim. It spoke to something in me more tellingly than a reference to due process of law would have done. It set in motion thought and action …

The author, of course, was Noonan, discussing judges’ professional responsibility. The passage revealed that for him as for me, Marsh had been no mine-run case. It revealed that Judge Noonan still pondered my unexpected yet accurate protestation of my client’s innocence and, indeed, the injustice of my client’s conviction. It revealed that he still pondered his own “thought and action”: his lone vote against conviction, without concern about what mid-1990s America might think of the underlying conduct. It revealed a quintessential judge, whom we will miss.

IntLawGrrls’ birthday, captured on video

My thanks to all who came here to Athens, Georgia, earlier this month to celebrate IntLawGrrls blog, which I founded a decade before, on March 3, 2007. I saw old friends and made new ones, and reveled in watching networks form.

I’m particularly proud that our conference operated to assist many participants who are still building their careers. They included several of whom I’m especially proud:

► J.D. or LL.M. candidates, among them my students: Victoria Barker, new Editor-in-Chief of our Georgia Journal of International & Comparative Law; Chanel Chauvet, a Dean Rusk International Law Center Student Ambassador set to intern this summer in the global legal department of CARE International; LL.M. candidate Urvashi Jain; and Hannah Williams, President of Georgia Law’s International Law Society;

► Ph.D. candidates, including my former Georgia Law student Kaitlin Ball, now studying in the at Cambridge University in the United Kingdom; and

► Advocates like my former California-Davis students Monica Feltz, Executive Director, International Justice Project, Newark, New Jersey, and Kathleen A. Doty, Director of Global Practice Preparation at Georgia Law’s Dean Rusk International Law Center, as well as an M.A. Candidate in Political Science & International Affairs at our university’s School of Public & International Affairs.

Deep thanks too to Işıl Aral, Ph.D. student at England’s University of Manchester and co-founder there of the Women in International Law Network. She videotaped segments of our conference, including the start of my own remarks at our lunch-hour plenary. Reposted above and at Exchange of Notes and IntLawGrrls blogs, the video also includes remarks by Indiana-Indianapolis Law Associate Dean Karen E. Bravo, American Society of International Law President Lucinda A. Low, Temple Law Professor Jaya Ramji-Nogales, and Stanford Visiting Law Professor Beth Van Schaack.

Enjoy!

Women, children, men, 63K strong, join John Lewis in Atlanta’s largest-ever march

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Total geeks.

img_0615Of all the things that Kate, Emma, and I saw in our hours of marching – a very slow couple miles, sloshing in rain boots – it was the sign at right that excited us most. The woman seemed surprised when we asked her if we could take a photograph. We explained:

“We’re international lawyers. Treaties matter to us.”

And thus we commemorated the woman’s tribute to Native Americans.

img_0582That was just one group represented at today’s march through downtown Atlanta. It began at the city’s 2-1/2-year-old Center for Civil & Human Rights. Then it went past Phillips Arena (home of the NBA Atlanta Hawks), the Georgia Dome (set to host tomorrow’s NFC championship, when the Atlanta Falcons plan to #RiseUp against the Green Bay Packers), and the Falcons’ new home, a still-under-construction nest of glass and steel called the Mercedes-Benz Stadium. It ended, as depicted at top, at Georgia’s Capitol, the aptly named Golden Dome.

Besides Native Americans, an array other groups were represented in countless signs, many of which had been sheathed in plastic against the morning downpour.

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Especially prominent were felines and feline references, and more pink than you’d find in a Pepto-Bismol factory.

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img_0593img_0598Families and friends (old and new) marched, all together.

Then, with a replica of the Statue of Liberty standing by, they listened to speeches by an array of community leaders – not least, U.S. Rep. John Lewis, the civil rights icon in whose 5th District the march occurred.

img_0609Organizers said 63,000 came to Atlanta, making it the city’s largest-ever march. They joined literally millions, including ‘Grrls (even non-marchers) in D.C., Sydney, and Philadelphia. Cymie’s crowd count has been eclipsed by the news that 2.5 million are said to have marched around the world.

Time now to convert good feelings and firm resolve to concrete action.

Not-marchers on the march

nobloodforoilSo, I don’t march.

I stayed home when millions protested the invasion of Saddam Hussein’s Iraq. Stayed home for “No Blood for Oil” too (though I did have the T-shirt, at left). Avoided the streets of my Paris sabbatical home on May Day 2002, when half a million marched to the chants of “Là-Bas Le Pen.”

Pretty much avoided all public demonstrations since childhood, never having really seen the point of taking to the streets instead of concrete action – that is, instead of litigating/teaching/reasoning/writing/policymaking toward lasting solutions.

So why march today?

► Because the promise of the election of Barack Obama – hands down, the best President of my lifetime – so soon was dashed by never-believed yet oft-repeated undercuttings of his citizenship. The spurious claims and the events that ensued sunk the hope that had lifted many of us in 2007 and 2008. Fell particularly hard on those of us who are immigrants, or who count immigrants among our loved ones.

aliceroom3Because in the last years we’ve been forced to swallow bile: cruel falsehoods about the 1st woman to be nominated by a major U.S. political party; harsh slaps against everyone who has endured sexual assault; soulless insults about every disadvantaged group imaginable.

► Because Looking-Glass intrigue belongs to the fantasy world of Lewis Carroll, not to the real world in which we all must live.

Because aspirations to human dignity, equality, liberty, and justice, without borders, will not withstand anti-“globalist” attack unless those of us who hold these values dear come to their defense.

Because if we fail to object, we fail our children.

To quote other ‘Grrls:

“It seems like a day when numbers matter.”

“I couldn’t not go.”

And so even we not-marchers march, in D.C., in Philadelphia, and, at last count, in nearly 700 other places around the world.

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(Cross-posted from IntLawGrrls)

Quote in study of ICC and gender justice featured in EJIL: Talk! symposium

politicsWhat a welcome surprise to read words I penned a few years ago quoted-within-a-quote in a post today at EJIL: Talk!

To be precise, Washington & Lee Law Professor Mark Drumbl wrote:

“Gender justice initiatives at the ICC remain entwined with other advocacy movements. Notable in this regard is the push for children’s rights. The pairing of women’s rights with children’s rights – while perhaps seeming somewhat odd – does reflect the historical association, in Diane Marie Amann’s words (cited by Chappell), of ‘women and children as bystanders, beings not fully conscious of the world around them’ within the Grotian Weltanschauung.”

The quote, from my essay “The Post-Postcolonial Woman or Child,” appears in Drumbl’s contribution to a terrific EJIL: Talk! symposium analyzing The Politics of Gender Justice at the International Criminal Court (Oxford University Press 2015), an important book by Louise A. Chappell (below right), Professor and Australian Research Council Future Fellow, School of Social Sciences, University of New South Wales, Sydney, Australia.

chappellChappell (who, like Drumbl, is an IntLawGrrls contributor) traces her subject through chapters that “represent,” “recognize,” “redistribute,” and “complement” gender justice at the ICC, an institution that “nested” “gender advocacy,” as Drumbl puts it in his review, entitled “Gender Justice and International Criminal Law: Peeking and Peering Beyond Stereotypes.” He adds:

“In short: her superb book is a must-read.”

Joining Drumbl in this symposium are:

► An opening post by EJIL: Talk! Associate Editor Helen McDermott, a post-doctoral Research Fellow in law and armed conflict in the Oxford Martin School Programme on Human Rights for Future Generations at the University of Oxford, England.

► An introduction by Chappell, who is due to close the conversation later this week (latter post now available here).

“Beyond a Recitation of Sexual Violence Provisions: A Mature Social Science Evaluation of the ICC” by Patricia Viseur Sellers, who serves as the International Criminal Court Prosecutor’s Special Adviser for Prosecution Strategies, is a Visiting Fellow at Kellogg College, Oxford University, and the former Legal Advisor for Gender and Acting Senior Trial Attorney at the International Criminal Tribunal for the Former Yugoslavia.

“Gender Justice Legacies at the ICC” by yet another IntLawGrrls contributor, Valerie Oosterveld, Associate Dean (Research and Graduate Studies), Associate Professor, and Deputy Director of the Centre for Transitional Justice and Post-Conflict Reconstruction, University of Western Ontario Faculty of Law, London, Ontario, Canada.

To crib from Drumbl’s post, the series is a must-read.

ICC Prosecutor’s Policy on Children, an international criminal justice capstone

Children have become the unwilling emblems of armed conflict and extreme violence.

Searing images have surfaced in news stories, aid workers’ alerts, and rights groups’ dispatches: a 5 year old pulled from Aleppo rubble, orphans at a Goma children’s center, a young Colombian woman struggling to readjust after years as a child soldier, and, face down on a Turkish beach, a drowned 3-year-old refugee. Images of this nature were shown yesterday at the International Criminal Court, during the opening statement in Ongwen, with Prosecutor Fatou Bensouda herself warning “that some of these images are extremely disturbing.”

There is no better time than now to press for strategies both to combat such harms and to bring the persons responsible to justice. Presenting an important step toward those goals is the Policy on Children of the International Criminal Court Office of the Prosecutor.

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Prosecutor Bensouda launched the Policy on Children at an event during last month’s meeting of the ICC Assembly of States Parties. Bensouda quoted from the U.N. expert Graça Machel’s pathbreaking 1996 report on children and armed conflict, then commented:

“[I]t is indeed unconscionable that we so clearly and consistently see children’s rights attacked and that we fail to defend them.
“It is unforgivable that children are assaulted, violated, murdered and yet our conscience is not revolted nor our sense of dignity challenged. This represents a fundamental crisis of our civilisation and a failure of our humanity.
“By adopting the Policy on Children, which we launch today, we at the Office of the Prosecutor seek to ensure that children suffering the gravest injustices are not ignored. That through the vector of the law, we do what we can to protect and advance the rights of children within the framework of the Rome Statute.”

Leading the event was journalist Zeinab Badawi. Among the many others who offered live or video interventions were: Mamadou Ismaël Konaté, Mali’s Minister of Justice and Human Rights of the Republic of Mali; Zeid Ra’ad Al Hussein, U.N. High Commissioner for Human Rights; Leila Zerrougui, Special Representative of the U.N. Secretary-General for Children and Armed Conflict; Angelina Jolie, Special Envoy of the U.N. High Commissioner for Refugees; Nobel Peace Prizewinner Leymah Gbowee; Lieutenant General Roméo-Dallaire, Founder of the Roméo Dallaire Child Soldiers Initiative (see also IntLawGrrls post by Kirsten Stefanik); Marc Dullaert, Founder of KidsRights and the Netherlands’ former Children’s Ombudsman; and Coumba Gawlo, U.N. Development Programme Goodwill Ambassador and National Goodwill Ambassador for the U.N. High Commissioner for Refugees.

screen2I am honored also to have offered brief remarks – and am especially honored to have assisted in the preparation of this Policy in my capacity as the Prosecutor’s Special Adviser on Children in & affected by Armed Conflict, working alongside a dedicated Office of the Prosecutor team led by Shamila Batohi, Gloria Atiba Davies, and Yayoi Yamaguchi. Preparation included experts’ gatherings at the University of Georgia School of Law Dean Rusk International Law Center, at Leiden Law School, and at the ICC itself, as well as consultations around the globe with young persons who had endured armed conflict. (Legal research produced by my students, in seminars on Children & International Law and through the work of the Georgia Law Project on Armed Conflict & Children, also was invaluable.)

The result is a Policy on Children spanning 47 pages, published simultaneously in Arabic, English, French, Spanish, and Swahili. Identifying children as persons under eighteen (paragraph 16), it covers a gamut of issues related to children and the work of the Prosecutor; for example, general policy, regulatory framework, and engagement with children at all stages of the proceedings. Among many other landmarks, the Policy:

► Embraces a child-sensitive approach grounded in the 1989 Convention on the Rights of the Child, a treaty ratified by every U.N. member state save one: the United States, which is also an ICC nonparty state. (My remarks happily noted that my other state of citizenship, the Republic of Ireland, is a state party to both the Child Rights Convention and the ICC’s Rome Statute.) Paragraph 22 of the Policy on Children thus states:

“In light of the foregoing, the Office will adopt a child-sensitive approach in all aspects of its work involving children. This approach appreciates the child as an individual person and recognises that, in a given context, a child may be vulnerable, capable, or both. The child-sensitive approach requires staff to take into account these vulnerabilities and capabilities. This approach is based on respect for children’s rights and is guided by the general principles of the 1989 Convention on the Rights of the Child: non-discrimination; the best interests of the child; the right to life, survival and development; and the right to express one’s views and have them considered.”

► Views children, like all human beings, as multi-faceted individuals and, simultaneously, as members of multi-generational communities. (See, for example, paragraph 100.) Paragraph 25 states:

“Children, by the very fact of their youth, are frequently more vulnerable than other persons; at certain ages and in certain circumstances, they are dependent on others. Notwithstanding any vulnerability and dependence, children possess and are continuously developing their own capacities – capacities to act, to choose and to participate in activities and decisions that affect them. The Office will remain mindful, in all aspects of its work, of the evolving capacities of the child.”

► Acknowledges in paragraph 17 “that most crimes under the Statute affect children in various ways, and that at times they are specifically targeted” – and then pledges that “the Office will, in order to capture the full extent of the harm suffered, seek to highlight the multi-faceted impact on children, at all stages of its work.” The regulatory framework thus enumerates a range of crimes against and affecting children:

  • recruitment and use by armed forces and armed groups of children under fifteen as war crimes (paragraphs 39-43);
  • forcible transfer of children and prevention of birth as acts of genocide (paragraphs 44-46);
  • trafficking of children as a form of enslavement constituting a crime against humanity (paragraphs 47-48);
  • attacks on buildings dedicated to education and health care as war crimes (paragraph 49);
  • torture and related war crimes and crimes against humanity (paragraph 50);
  • persecution as a crime against humanity (paragraph 50); and
  • sexual and gender-based violence as war crimes and crimes against humanity (paragraph 52).

► Details the Office’s plan for applying the child-sensitive approach, with respect both to all stages of proceedings, including preliminary examinations, investigations, and prosecutions, and to cooperation and external relations, institutional development, and implementation.

Even as cases involving crimes against and affecting children, like Ongwen, go forward, the Office is working on implementation of its new Policy on Children. The implementation phase will include developing versions of the Policy accessible to children. I’m looking forward to the opportunity to contribute this phase – and to hearing others’ views on the Policy.

ICC Prosecutor’s opening addresses Ongwen as alleged “victim-perpetrator”

Since accused Lord’s Resistance Army leader Dominic Ongwen surrendered to the International Criminal Court in January 2015, there’s been much discussion of the effect, if any, of reports that he was abducted as a child into the Uganda rebel group, and eventually committed international crimes himself.

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ICC Prosecutor Fatou Bensouda (© ICC-CPI)

ICC Prosecutor Fatou Bensouda responded in her opening statement this morning,  on the 1st day of trial in Prosecutor v. Ongwen (transcript, video, and audio available here). First she discussed the crimes with which he is charged, against children and adults alike. Then Bensouda turned to the accused himself:

“One aspect of this case is the fact that not only is Ongwen alleged to be the perpetrator of these crimes, he was also a victim.”

About this, Bensouda said:

“The reality is that cruel men can do kind things and kind men can be cruel. A hundred percent consistency is a rare thing. And the phenomenon of the perpetrator-victim is not restricted to international courts: it is a familiar one in all criminal jurisdictions. Fatherless children in bleak inner cities face brutal and involuntary initiation ordeals into gang life, before themselves taking on a criminal lifestyle. Child abusers consistently reveal that they have been abused themselves as children.

“But having suffered victimization in the past is not a justification, nor an excuse to victimise others. Each human being must be considered to be endowed with moral responsibility for their actions. And the focus of the ICC’s criminal process is not on the goodness or badness of the accused person, but on the criminal acts which he or she has committed. We are not here to deny that Mr. Ongwen was a victim in his youth. We will prove what he did, what he said, and the impact of those deeds on his many victims.

“This Court will not decide his goodness or badness, nor whether he deserves sympathy, but whether he is guilty of the serious crimes committed as an adult, with which he stands charged.”