review


Anyone interested in exploring, at this half-century mark, the conflict waged on a then-partitioned Southeast Asian coastal land, Vietnam, ought not to stop at the 2017 televised PBS series. Also meriting attention is a less heralded, but entirely worthwhile Public Radio International podcast.

Called “LBJ’s War”, this multi-part podcast focuses on Executive Branch machinations after the United States became involved, siding with the South (Republic of Vietnam) against the North (Democratic Republic of Vietnam) – and against the Viet Cong, an armed ally of the North that operated in the South.

It begins in the fall of 1963, when Lyndon Baines Johnson assumed the U.S. Presidency after the November 22 assassination of his predecessor, John F. Kennedy, and soon confronted the question of whether to continue support for South Vietnam, where the incumbent President, Ngo Dinh Diem, himself had been assassinated on November 2. It ends 5 years later – well before the last Americans fled as Saigon fell, but after Johnson’s surprise March 1968 announcement that he would not seek another presidential term.

Most notable is the way that the podcast recounts these and other key events (including, of course, the 1964 Gulf of Tonkin resolution and the 1968 Tet Offensive). As much as possible, it uses words spoken on cables, in taped phone calls and conversations, and, in the case of Lady Bird Johnson, entries in an audio-recorded diary. Coming to life are her voice, that of her husband, and those of others – among them two Georgians, the Rev. Dr. Martin Luther King Jr. and Secretary of State Dean Rusk.

Well worth a listen.

(credit for photo captioned “President Lyndon B. Johnson awards the Distinguished Service Cross to First Lieutenant Marty A. Hammer”)

Last autumn a colleague recommended The Retreat of Western Liberalism by Edward Luce. I finally got ’round to reading it about 6 months after its June 2017 release, over winter break.

It begins by recounting Luce’s impulse roadtrip in 1989, joining Oxford friends in tearing down the Berlin Wall. It proceeds to survey trends scholars have been discussing for at least a decade – and then, as one might say, the book adds Trump and mixes. The result is a series of aphorisms and anecdotes; an example:

“In Moscow’s view, history is back and nothing is inevitable, least of all liberal democracy.”

Yet just a half-year later, events point to things missing from this mid-2017 account.

One is consideration of how voters would react to the current U.S. administration; that is, whether the ballot box might stymie the very forces it unleashed with the presidential election of November 8, 2016. (This omission surprises, given that as early as April 2017, a Democratic candidate had made a strong showing in a highly publicized Georgia congressional race.) Since Retreat was published, Republicans have lost a U.S. Senate seat in Alabama, along with other races, including 2 presumed GOP-safe statehouse seats in my own Georgia county. If results like these turn out to be bellwethers for the November 2018 midterms – and if newly elected leaders then work to recalibrate the policy agenda – at least some of the governance alarms raised in Retreat will seem less well-founded.

Another is discussion of sex and gender as pieces of the geopolitical puzzle. Nearly all the anecdotes related, and nearly all the sources cited, are male or pertain to men. Exceptions are critiques of the 2016 Democratic presidential candidate, Hillary Clinton, and of the United Kingdom’s post-Brexit PM, Teresa May, plus comments on Germany by reference to Angela Merkel. All 3 are women, of course, yet neither the subject’s sex nor the gendered nature of politics figures into these analyses. The January 21, 2017, global Women’s Marches suggested a need for more attention to sex-gender dynamics, and events in the second half of last year, signaled by #MeToo and #Time’sUp, confirm it.

Perhaps the pretermission is due to the book’s rather strict construction of “Western liberalism,” as  centered on the freedom of the individual. That framing of liberty may incur tension with views of equality that take into account an individual’s  membership in a group. The book evinces discomfort with attention to such membership by reference to “identity politics,” on the one hand, and color-lined “nationalism,” on the other. The excesses of both are indeed complications. But they exist. Better to explore reconciliation of liberty-equality tensions, as another commentator recently did, than only to decry manifestations of excess.

All this is not to say that the book’s structural observations are to be disregarded. To the contrary:

Its concern that elites have overstated the Western liberal solution is correct. The same may not be said of the book’s prescription of listening more to persons who voted for the current president, at least not if “listening” refers to myriad of 2017 articles presenting anecdotal interviews with such voters. Listening in a more statistically grounded manner well may be in order.

Also correct is the book’s concern that as political and economic power shifts east, to Asia, the West ought to recognize, to think, and to act more strategically in response to that shift. Its positing of a standoff between liberal India and illiberal China –

“… Divided by the Himalayas, the world’s two largest countries, China and India, sit side by side – one an autocracy, the other a democracy. …”

– is not immediately persuasive, yet merits further pondering.

In short, Luce’s observations offer a basis on which to continue to make sense of our present and future:

“We must think more radically than that.”

Luce pushes us, and for this, his book is a worthwhile read.

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.

An enterprising student who is set to become part of the Georgia Law 1L class this fall recently wrote me in search of a summer reading list. In the event that my response is of wider interest, here are some superb books – nonfiction works that provide background and context, thus enriching comprehension of issues presented in courses like Public International Law, International Criminal Law, Laws of War, and Foreign Affairs/National Security Law:

wartime► Mary Dudziak, War Time: An Idea, Its History, Its Consequences (2012) (Prior post)

2019680024► John Fabian Witt, Lincoln’s Code: The Laws of War in American History (2012) (Prior post)

paris► Margaret MacMillan, Paris 1919: Six Months That Changed the World (2003) (Prior post)

aworldmadenew► Mary Ann Glendon, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (2002) (Prior post)

gen► Martha Minow, Between Vengeance and Forgiveness: Facing History after Genocide and Mass Violence (1999) (Prior post)

telf► Telford Taylor, The Anatomy of the Nuremberg Trials: A Personal Memoir (1993) (Prior post)

Book, Thirteen Days► Robert F. Kennedy, Thirteen Days: A Memoir of the Cuban Missile Crisis (1969) (Prior post)

terr► Jess Bravin, The Terror Courts: Rough Justice at Guantanamo Bay (2013) (Prior post)

In addition, I recommended these books as means to enhance understanding of other law school courses – Constitutional Law and Federal Jurisdiction, in particular:

nine► Jeffrey Toobin, The Nine: Inside the Secret World of the Supreme Court (2007)

son► Sonia Sotomayor, My Beloved World (2013) (Prior post)

cliff► Cliff Sloan & David McKean, The Great Decision: Jefferson, Adams, Marshall, and the Battle for the Supreme Court (2009) (Prior post)

hab► Linda Greenhouse, Becoming Justice Blackmun: Harry Blackmun’s Supreme Court Journey (2005) (Prior post)

To that list I should have added another book:

cap► Lincoln Caplan, The Tenth Justice: The Solicitor General and the Rule of Law (1987)

And finally, here’s one that helped me prepare for my own 2L summer associateship in Manhattan:

part► James B. Stewart, The Partners: Inside America’s Most Powerful Law Firms (1983)

Other suggestions welcome. Happy summer reading!

radianceTimes of war are marked by yearnings for peace. The landmark 1863 Lieber Code regulating combat thus said, with reference to “nations and great governments”:

‘Peace is their normal condition; war is the exception. The ultimate object of all modern war is a renewed state of peace.’

But what “peace” means is a question that lingers after combatants put down their arms. This is a point that many thinkers have made (in a recent essay I referred to the positive v. negative peace and direct v. structural violence concepts of Martin Luther King, Jr. and John Galtung). And it is a point that Ishmael Beah makes, beautifully, in his just-published novel, Radiance of Tomorrow.

Beah is best known for A Long Way Gone, his 2008 memoir of child-soldiering during the 1990s civil war in his homeland, Sierra Leone. (Prior postscredit for January 2014 photo of Beah at Carter Presidential Library, Atlanta) Some child soldiers figure in the new novel, Radiance, as well. They are now veterans:

‘Children and young people came by themselves with no parents. In the beginning they came one at a time, then in pairs, followed by four, six, or more in a group. They had been at various orphanages and households that had tried to adopt them. Some had even been at centers to learn how to be “normal children” again, a phrase they detested, so they had left and become inhabitants of rough streets in cities and towns. They were more intelligent than their years and had experienced so much hardship that each day of their lives was equal to three or more years; this showed in their fierce eyes. You had to look closely to see residues of their childhood.’

beahLong after the fighting has ended, these youths and other persons of all ages return to the village of Imperi – a name that shares roots with “empire” – in “Lion Mountain,” the anglicized name for Sierra Leone. Together they try to rebuild.

But a  new force invades even as they endeavor to retie the bonds of what had been a traditional, agrarian society. It is the outside world, capitalism in the forming of a mining company. It extracts valuable minerals first from the surrounding area and eventually from the town itself. Schools and story-telling lose support as the town center fills with bars and brothels. The resting place of ancestors is dug up even as new casualties of hazardous work are buried.

The old ways will not survive. The hoped-for “radiant tomorrow” of the book’s title will occur in a new place – even in a new voice. In the novel Beah renders into English poetic phrases from his mother tongue, Mende. As he explained in the foreword:

‘For example, in Mende, you wouldn’t say “night came suddenly”; you would say “the sky rolled over and changed its sides.” Even single words are this way – the word for “ball” in Mende translates to a “nest of air” or a “vessel that carries air.”’

The technique works exceptionally well in the novel’s first part, which is rich in imagery: “the dark spots where fire had licked with its red tongue,” for example, and “the day that war came into her life.” It seems to wane as the novel unfolds, however. This erosion of prose-poetry may be intended to mimic the depletion of Imperi and its people.  The prosaic replacement may reflect the people’s new and different life – as Beah puts it in passages with which the novel begins and ends, their new story. Beah thus provides a thought-provoking answer to the post-conflict question of the meaning of peace.

lacksThe Nuremberg Code made them do it. Or not do it, to be precise.

“They” were “three young Jewish doctors” who refused a superior’s instructions that, in the name of medical research, they should inject unknowing patients with cancer cells. As stated in The Immortal Life of Henrietta Lacks, the 2010 bestseller by Rebecca Skloot:

‘All three knew about the research Nazis had done on Jewish prisoners. They also knew about the famous Nuremberg Trials.’

Skloot proceeds with a brief account of one of the 12 Nuremberg Military Tribunal trials that followed the Trial of the Major War Criminals. In the Doctors Trial,  23 physicians – among them 1 woman – were prosecuted for conducting medical experiments on camp inmates without their consent. The tribunal’s judgment set forth a list of 10 principles that became known as the Nuremberg Code. First and foremost:

‘1. The voluntary consent of the human subject is absolutely essential.’

Although it appeared in a judgment in 1947, issued by a panel of American judges sitting in Nuremberg, as late as 1951, that injunction had not penetrated the medical establishment Stateside. That is the year that physicians in Baltimore took cells from Lacks, a 31-year-old woman who soon would die from cervical cancer. Those tissues, and others taken in the course of her autopsy, gave birth to a cell line that lives to this day – cells numbering in the billions, used for decades, worldwide, to aid research on a host of diseases and genetic disorders. Lacks’ contribution to science is inestimable. But as Skloot relates in her book, which I’ve just finished reading, it took place without full and informed consent of Lacks or her family.

Indeed, it appears the informed consent norm articulated at Nuremberg was not firm even as late as 1963. That’s when those 3 doctors mentioned at top wouldn’t go forward with the ordered injections. Their refusal began a painful but necessary process of informing the family, by then impoverished in both material and emotional sense of the word. It is heartening to learn that the work of international criminal lawyers gave rise to a norm that led to this revelation of the truth – and, one hopes, to more patient-respectful procedures in our own time.

ihlybkAccountability for child soldiering figures prominently in the just-published 2012 Yearbook on International Humanitarian Law. Part II of volume 15, titled “Child Soldiers and the Lubanga Case,” comprises 3 articles:

Between Consolidation and Innovation: The International Criminal Court’s Trial Chamber Judgment in the Lubanga Case. This article focuses on aspects of the 2012 International Criminal Court judgment in Lubanga; specifically, the Trial Chamber’s: definition of the war crimes of conscription, enlistment, and use of child soldiers, as well as its determination that the underlying conflict was not of international character. The author is Dr. Sylvain Vité, now at Bilkent University in Ankara, Turkey.

The Effects of the Lubanga Case on Understanding and Preventing Child Soldiering. The author of this survey of the Lubanga judgment is Washington & Lee University Law Professor Mark A. Drumbl, whose most recent book, Reimagining Child Soldiers, I reviewed in the American Journal of International Law.

Sexual Violence Against Children on the Battlefield as a Crime of Using Child Soldiers: Square Pegs in Round Holes and Missed Opportunities in Lubanga. This article takes the ICC Office of the Prosecutor to task for “[m]isconceptions … which saw the crime of use conflated with conscription/enlistment,” in a way that the author, Joe Tan, an attorney at the British NGO Human Dignity Trust, maintains undercut the prosecution of sexual violence.

(credit for photo of new IHL Yearbook, which also discusses cyberwarfare and the Tallinn Manual)