ad hoc/hybrid tribunals

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.”

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.

UntitledMembers of Congress last week heard a concise and valuable account of how the International Criminal Court could aid efforts to hold wrongdoers in Syria’s civil war accountable.

Use the court as “a ‘reference point’ for the national system,” Richard Dicker, Director of the International Justice Program for Human Rights Watch urged in Wednesday’s testimony before House subcommittees on Africa and the Middle East & North Africa. (Video/screenshot credit here; text of Dicker’s remarks here.) Dicker was among 5 men who testified at the hearing, entitled “Establishing a Syrian War Crimes Tribunal?”

To that question, Dicker answered “No.” He said:

‘[T]he solution most likely to provide justice is not a stand-alone ad hoc tribunal for Syria.’

He then listed “practical obstacles” learned from precedent examples like the International Criminal Tribunal for the former Yugoslavia and the Special Court for Sierra Leone. Even putting to one side the precarious security situation in still-at-war Syria, delay would be inevitable in devising a legal framework, finding and setting up facilities, recruiting personnel, and gaining state cooperation; indeed, Dicker contended that the time lag and expense likely would “be more costly than if a permanent institution is tasked with investigation and prosecution.”

The institution to which he pointed is the ICC – that is, an ICC given the needed resources to commit fully to constructing investigations that could deter further offenses, while preparing affected communities for meaningful accountability at national as well as international levels. (This resources issue is addressed in the 2012-2015 Strategic Plan just released by the ICC Office of the Prosecutor, and in prior posts on Syria and on the ICC.) Also essential, Dicker told the assembled U.S. Representatives, would be candid and open support of the United States:

‘[T]he US government should make clear its position on the ICC instead of demurring behind concerns that Russia and/or China would veto any Security Council resolution which aimed to refer the situation in Syria to the ICC. … There are now 64 countries supporting such a referral, including six Security Council members, so the administration would be smart to at least begin talking about how the court can play a constructive role.’

He pressed his audience to prod the Executive Branch:

‘[T]he administration’s overall justice strategy on Syria should take the ICC into account. Congress is well placed to press the administration on this point and I hope these subcommittees will consider doing so.’

monitoring_and_reportingMuch to ponder following “Accounting for Children Affected by Armed Conflicts,” a dialogue in which I was honored to take part on Friday, as part of International Law Weekend-NYC, the 92d annual meeting of the American Branch of the International Law Association.

Joining me on the panel were Mark A. Drumbl, Washington & Lee University Law Professor, and Jo Becker, Advocacy Director of the Children’s Rights Division for Human Rights Watch. (Both are authors of books published in 2012: Mark, Reimagining Child Soldiers in International Law & Policy, which I reviewed here, and Jo, Campaigning for Justice: Human Rights Advocacy in Practice.) Our able moderator was Jonathan Todres, the children’s rights expert who chairs the Section on Children and the Law of the Association of American Law Schools.

Before an audience of academics, practitioners, and students, we four explored a range of issues related to children in and affected by armed conflict. We began with questions related to child soldiering:

► Why do some treaties, like the 4th Geneva Convention and the Rome Statute, outlaw recruiting of children under 15? Why do others, most notably the 2000 Optional Protocol to the Children’s Rights Convention, set the age at 18? And what are the implications of setting either as the threshold age?

► How does the presence of children in the ranks affect armed forces – not only discipline and professionalism within such units, but also the rules of engagement for adult units that find themselves confronting children in combat?

► How ought children affected by armed conflict be reintegrated into their societies? How can laws and transitional justice programs take into account the youth and vulnerability, as well as the age and agency, of children?

► To what extent can international efforts change norms respecting children in armed conflict? And to what extent can newly established norms be implemented on the ground?

As might be expected, international criminal law was considered; in particular, child soldiering convictions in cases like Lubanga at the International Criminal Court (my casenote here), and Taylor at the Special Court for Sierra Leone. Also looked at were noncriminal mechanisms for prevention, protection, and accountability; for example, the processes of monitoring and reporting, and naming and shaming, developed by the U.N. Security Council and administered by the Special Representative to the Secretary-General for Children in Armed Conflict, Leila Zerrougui. (Her annual report, which she presented before the U.N. General Assembly on October 17, is here.)

Those processes concentrate on 6 “grave violations” against children. One of the 6 – attacks on schools – is notable given the panel’s discussion of threats to education in times of armed conflict. Becker spoke of efforts to document military use of schools and to put an end to such use by urging armed forces to endorse guidelines banning the practice. Such a ban is needed, she said: such use endangers children and teachers not just by militarizing educations, but also by transforming the school buildings into legitimate military targets. (credit for © 2006 UN Photo/Eskinder Debebe, published by the Global Coalition to Protect Education from Attack, with the caption “Coats of students hang on the wall of a partially destroyed school in Kabul, where children attend as part of the ‘Back to School’ campaign launched by the Afghan government with UNICEF’s support to bring 1.7 million students back to school.”)

Ensuring safe and peaceable education could do much to improve the well-being of girls and boys – not to mention the societies that they one day will lead.

?????????????????????????????A lightning-rod figure in international criminal law has left the bar: Jacques Vergès died in Paris Thursday. He’d been born in what was then Siam 88 years earlier – “theoretically,” according to Le Monde. The obituary hedges because Vergès’ birth, to a Vietnamese mother and a father who was the head of the French consulate, may in fact have occurred many months before the date that his parents married and proclaimed his arrival. Vergès made that personal history part of his public identity, even titling a 1997 memoir Le salaud lumineux (The Shining Bastard).

As an attorney, he took part in the defense of persons charged with heinous international offenses, such as genocide and crimes against humanity. These included Klaus Barbie, the German Nazi officer charged and eventually convicted in French national courts of World War II-era crimes (prior posts); Slobodan Milošević, the former President of Serbia who died in custody midway through his trial before the International Criminal Tribunal for the former Yugoslavia (prior posts); Khmer Rouge leader Khieu Samphan, still on trial before the Extraordinary Chambers in the Courts of Cambodia (prior posts available here) (credit for 2008 photo of Vergès at the ECCC); and Laurent Gbagbo, the former President of Côte d’Ivoire who awaits trial before the International Criminal Court.

Vergès’ signature technique was the défense de rupture, a turning of the tables that put not the accused, but rather the judicial institution and the instant prosecution, on trial. Such challenges compelled close examination of the courts and the proceedings. Put succinctly, Vergès’ techniques gave concrete reality to the notion of adversary proceedings. French legal experts remembered him as “courageous,” “provocative,” “intelligent.” And infuriating: his opponent in Barbie, attorney/author Serge Klarsfeld, told Le Monde (my translation):

‘Having conveyed my hostility to Jacques Vergès sufficiently while he was alive, I will refrain from speaking at this moment of his death.’

petitionSupporters of a new ad hoc tribunal have taken their campaign online. As reported this weekend on any number of French-language media, 52 women signatories – dubbed marraines, or godmothers – have launched the above Petition for an International Criminal Tribunal for the Democratic Republic of the Congo. Addressees include: French President François Hollande; U.S. President Barack Obama; the Presidency of the Security Council; U.N. Secretary-General Ban Ki-moon; European Union President Van Rumpoy, African Union President Nkosazana Dlamini-Zuma; and Mary Robinson, U.N. Special Envoy on the Great Lakes Region of Africa, the region within which the protracted Congolese conflict has taken place.

This French-language petition focuses on the findings of a U.N. “mapping exercise” respecting human rights violations that occurred in the Congo between 1993 and 2003. (Notably, most of those violations predated the July 1, 2002, entry into force of the Rome Statute of the International Criminal Court; although not stated, presumably the absence of ICC jurisdiction over such cases forms one reason for the bid for a standalone tribunal.) The ensuing 500-plus page report, completed in 2010, documented the commission of many crimes of international concern against civilians – in particular, against children and women.

The petition envisages establishment of an ad hoc tribunal as a replacement to the International Criminal Tribunal for Rwanda, now winding up its work after 2 decades as a U.N. Security Council-established body. The full text of the 15-paragraph petition may be read here. In part, the marraines write (my translation):

‘We fear with good reason that future generations, more enlightened and more philosophical, will accuse the French, Europeans, and Americans of this century with complicity in barbarity – a complicity contrary to the the universal values on which we have founded our humanity.’

They further contend:

‘To do nothing would constitute discrimination against Congolese women, a denial of international justice and, as such, an encouragement to the commission of “gynocide” or “femicide.”‘

The initial signatories included Collège de France professors Mireille Delmas-Marty (prior post) and  Françoise Héritier, former French governmental ministers Rama Yade and Roselyne Bachelot, and many others. (Reportedly spearheading the effort is a man, however; he is Hamuli Réty, former head of the association of ICTR lawyers.) In the week or so that this website has welcomed additional joinders, more than a thousand more people have signed.

Judge_Patricia_Wald_A9E680357EDB9Delighted to see the name of Judge Patricia M. Wald among those set to receive the Presidential Medal of Freedom later this year. The White House announcement Thursday gave this terse account of her career:

‘Patricia Wald is one of the most respected appellate judges of her generation. After graduating as 1 of only 11 women in her Yale University Law School class, she became the first woman appointed to the United States Circuit Court of Appeals for the District of Columbia, and served as Chief Judge from 1986-1991. She later served on the International Criminal Tribunal in The Hague. Ms. Wald currently serves on the Privacy and Civil Liberties Oversight Board.’

That “international criminal tribunal” is, of course, the one that the U.N. Security Council set up to adjudicate offenses committed during the 1990s wars in the former Yugoslavia. Wald served as an ICTY judge from 1999 to 2001. As a onetime Wald clerk, Stanford Law Professor Jenny Martinez, wrote in a tribute appearing in “Women and International Criminal Law,” the special issue of the International Criminal Law Review dedicated to the judge:

‘When the U.S. government decided to nominate Judge Wald for the vacancy in The Hague, it was the modern equivalent of sending Justice Robert Jackson to Nuremberg. Judge Wald was unquestionably one of the most respected and admired federal judges in the United States. Nominating her to the ICTY said the United States took the court seriously, seriously enough to send one of its very best jurists to the posts.’

Martinez wrote that, at the ICTY, Wald:

► Helped reform procedures “to increase the court’s efficiency while ensuring fair trials.”
► ‘[C]ontributed greatly to the Tribunal’s jurisprudence”; for example, as a member of the Trial Chamber that in its 2001 Judgment in Prosecutor v. Krstić first used “the term genocide to the events at Srebrenica.”‘
► Demonstrated “courageous willingness to stand up for principle” in a way that “helped contribute to perceptions of the ICTY’s legitimacy”; for example, by presiding over the 2001 Appeals Chamber judgment that  reversed the convictions of 3 defendants in Prosecutor v. Kupreškić, who’d “been convicted based almost solely on one eyewitness’s testimony.” (I remarked on the significance of this decision in a 2002 American Journal of International Law casenote.)
► “Helped ensure,” through her “forceful presence in the courtroom,” “that gender-related violence was treated seriously and that victims were treated with respect.”
► “[C]ontinued to contribute to the project of international law since leaving the bench.” Wald’s served inter alia on the Open Society Justice Initiative board, as co-chair of the American Society of International Law International Criminal Court Task Force, as a member the President George W. Bush’s Commission on the Intelligence Capabilities of the U.S. Regarding Weapons of Mass Destruction, and as a member of the privacy/liberties board mentioned in White House notice.

medalNow 84, Wald continues to inspire by example. I was honored earlier this year by her presence at the ASIL Women in International Law Group luncheon where I delivered the keynote speech. A couple years before, Wald had provided essential support to IntLawGrrls’ production the ICLR special issue, attending and speaking at the 2010 roundtable where papers were presented, and publishing her own speech as Women on International Courts: Some Lessons Learned. That essay complemented the 3-part series Wald published in 2009 at IntLawGrrls, on what women want from international criminal law (part 1 here, part 2 here, and part 3 here). (photo credits here and here)

Honoring Patricia McGowan Wald with the Presidential Medal of Freedom: a wise Obama decision.