From a Chinese perspective, a critique of recent international criminal courts

OC.indd“A Point to Meet: Justice and International Criminal Law,” just published by the Asian Journal of International Law, is worth a read, given that its author is Dr. Xue Hanqin, a longtime Chinese diplomat who since 2010 has served as a Judge on the International Court of Justice. (As posted, she and the 2 other women of the ICJ, Judges Joan E. Donoghue and Julia Sebutinde, will headline the American Society of International Law Women in International Law Interest Group luncheon on April 10.)

In the just-published article, based on a 2012 speech, Judge Xue (below right; prior posts) takes on what she calls a “resurgence of legal idealism, in opposition to realism and positivism” – a resurgence evidenced by the growth of international criminal tribunals in the last 2 decades. Toward the end she states:

xue‘Justice should be placed at the centre of international law development, although as with any other topic in the field, the issue of global justice equally involves the politics of international law.’

(Many have made this point, as did I in articles here and here.) The “politics” that Judge Xue’s essay identifies have regional emphases, positioned at some odds with international criminal justice:

► “Asian efforts in socieconomic development” (a phrasing that hearkens to the longstanding “Asian values” debate) are put forward as a “broader” “vision on global justice”; that is, broader than “global justice” defined only to include criminal accountability.

► An “African practice” of ending “bloody conflicts” by means of amnesty, rather than criminal accountability.

The issues are critical, and the references invite scrutiny:

► The former reference describes a vision prevalent not just in Asia, but pretty much anywhere transitional justice is discussed. The identification of this vision with a particular region thus intrigues.

► The latter reference likewise pretermits that the “practice” of amnesty prevailed not just in Africa, but rather worldwide, through to the late-20th-C. revival of international criminal justice mechanisms. Indeed, Article 6(5) of Additional Protocol II (1977) to the 1949 Geneva Conventions specifically contemplates amnesty. Exploration and critique of the history and reasons for movement away from that global practice would have enriched the discussion. The same is true for the essay’s treatment of the International Criminal Court and amnesty: A discussion (like that in this article by my former student, Gwen K. Young) of the potential to consider at least some amnesties, within the framework of the Rome Statute, would have been welcome.

The rather small State of the Union

sotu2014Despite the best efforts of pundits and D.C. PR, the State of the Union address this year seemed, well, small.

Perhaps it was because I didn’t watch the speech this year – 1st time in a long time. Just wasn’t up for TV anchors’ “this is Washington’s Oscars” spin as the government’s still-mostly-men file in. (credit for video screengrab) Nor for the up-close-and-personal vignettes that pepper SOTU no less than they soon will Sochi.

As for the text of the speech itself – except for the well-deserved celebration of an end to certain health care injustices – it paled in the gloss of my high-def tablet screen.

President Barack Obama put impressive force into his demand for higher wages for Americans at the bottom of the income rung, to a reverse in the trend of growing economic inequality, to a guarantee of a good job. Impressive, that is, absent the deflating reality revealed on one’s calculator. Obama’s centerpiece solution was a minimum wage of $10.10 an hour. That would bring the annual income of a person who works full-time and gets paid vacation (both unlikely, at this wage scale) to a grand total of $21,008.00. (Note that this is higher than the current income floor.) Given the high cost of living in the United States, one could almost hear the low-wage earner mutter,

‘That and a Dunkin’ Donuts gift card will get me a cup of coffee.’

As the President noted, the mutterer well may be a woman. He said:

‘Today, women make up about half our workforce. But they still make 77 cents for every dollar a man earns. That is wrong, and in 2014, it’s an embarrassment.’

Well, yes, it is, and the focus on this issue was inspiring. Or would have been, if Obama’s stated solutions – “equal sbapay for equal work,” “a day off to care for a sick child or sick parent” – weren’t as old as the women’s movement itself. (image credit) Consider this web account:

Susan B. Anthony‘s paper The Revolution, first published in 1868, advocated an eight-hour day and equal pay for equal work.’

In his speech Obama sounded an alarm about “the lives that gun violence steals from us each day,” as he has many times before. (Prior posts here, here, and here) His promise “to keep trying, with or without Congress,” served as a reminder of the difficulty of change.

“Diplomacy” was the SOTU foreign policy buzzword. That is welcome, but did not fully settle the mind given the tense nature of most of the situations mentioned – Iran, the Middle East, Afghanistan. One was struck, too, by the geographic lumping-together of our globe. Joining Africa as an apparently single-country? “The Americas.”

Let’s hope the President’s assertions of optimism prove better founded than this take on yesterday’s address.

A new woman head of state: Taking on troubles in Central African Republic

panzaToday Catherine Samba-Panza, a businesswoman turned politician, became President of the Central African Republic. The 1st woman head of state in that country, Samba-Panza joins 2 others in Africa: President Joyce Banda of Malawi and President Ellen Johnson Sirleaf of Liberia.

The 135-member National Transitional Council chose Samba-Panza in a runoff held because none of 8 original candidates obtained a majority in the 1st round of voting. The Council voted in the wake of the January 10 resignation of Michel Djotodia, who had seized power in March 2013 and ruled as President for just under a year. In that same time frame, Samba-Panza has served as mayor of Bangui, the capital. (credit for photo by Eric Feferberg/AFP)

The new President faces immense challenges. The Séléka rebellion that brought her predecessor to power eventually morphed into protracted armed violence, between former rebels in that Muslim-led faction and Christian, “anti-Balaka” militias. These armed groups are said to have recruited upwards of 6,000 child soldiers, notwithstanding the international ban on child-soldiering. A fifth of the population – nearly a million persons – has been displaced.

The new President, described as a politically neutral Christian, addressed these troubles in her election speech:

‘I call on my children, especially the anti-balaka, to put down their arms and stop all the fighting. The same goes for the ex-Seleka – they should not have fear. I don’t want to hear any more talk of murders and killings.’

Whether violence will abate in the Central African Republic – a situation-country of the International Criminal Court, to which thousands of U.N. Security Council-authorized international troops are now being deployed – remains to be seen.

At Georgia Law, Karima Bennoune on “Muslim Fundamentalism”

karimaLooking forward to tomorrow’s talk by Karima Bennoune, based on her book, Your Fatwa Doesn’t Apply Here: Untold Stories from the Fight Against Muslim Fundamentalism (W.W. Norton 2013). The event, which I have the honor of moderating, will be at 4 p.m. Thursday, November 14, in the Chapel of the University of Georgia, here in Athens. Details here.

The daughter of a University of Algiers professor/activist, Karima grew up in Algeria and in the United States. She was educated at Michigan Law, and was an Amnesty International attorney in London for a number of years before entering academia. She’s now a law professor at the University of California-Davis.

Since the onset of the so-called Arab Spring, Karima has traveled through dozens of countries, in Africa, the Middle East, Central Asia, Russia, etc. There she’s talked with many different people of Muslim heritage; in particular, with dissidents, journalists, musicians, artists, secularists, women’s activists, and similar “outsiders.” Her book recounts how 2 powerful forces – autocratic governments, one on side, and ideologues, on the other, have squeezed out hoped-for pluralism.

I first met Karima about a dozen years ago, not long after the terrorist attacks of September 11, 2001, when she gave a gripping talk at an American Society of International Law meeting. She’s written frequently on issues of human rights, terrorism, etc., in popular media like The Guardian and The New York Times, and at IntLawGrrls blog. Indeed, her September 11, 2011, IntLawGrrls post entitled “Why I Hate Al Qaeda” forms a basis for a chapter in her new book.

We who are cosponsoring this event – the law school, its Rusk Center, and its student-run international law society, along with the International Law Students Association and the university’s African Studies Institute and Willson Center on Humanities – are delighted her book tour includes Athens.

International law fail the elephant? redux

“Has International Law Failed the Elephant?” That was the question posed a dozen years ago in an American Journal of International Law article by Michael J. Glennon, who’s now a Professor of International Law at Tufts’ Fletcher School of Diplomacy. In prose rife with admiration for the imperiled pachyderm, Glennon compelled his readers to answer “yes” to the question he had asked. He lamented the weaknesses inherent in the structure and implementation of CITES, the 1973ellies Convention on International Trade in Endangered Species of Flora and Fauna, and urged a range of improvements aimed at reducing the illegal market for elephant-harvested ivory. Inspired, my California-Davis Law student Jonathan Kazmar followed up with his own 2000 article, “The International Illegal Plant and Wildlife Trade: Biological Genocide?,” calling for the addition of criminal prohibitions to the limits contained in the original CITES.

These prescriptions have not taken hold. Trafficking in ivory increases and the number of elephants decreases. What is more, violence that long has ravaged civilians in the region encompassing Uganda, the Central African Republic, South Sudan, and the Democratic Republic of the Congo now claims elephants as victims. (credit for photo by Nuria Ortega/African Parks) According to a June 2013 report by the Enough Project:

‘The Lord’s Resistance Army, or LRA, is now using elephant poaching as a means to sustain itself. LRA leader Joseph Kony – wanted by the International Criminal Court for war crimes and crimes against humanity – has ordered his fighters to bring him elephant tusks. Eyewitnesses report that the LRA trades tusks for much-needed resources such as food, weapons and ammunition, and other supplies.’

Those allegations found voice Thursday. U.N. Security Council Resolution 2121 on the Central African Republic was passed

[c]ondemning the devastation of natural heritage and noting that poaching and trafficking of wildlife are among the factors that fuel the crisis …’

Which begs questions: Will international law again fail the elephant? Can stepped-up attention change the tide absent new international enforcement tools?  Assuming the requisite proof, could Kony be held criminally liable for a war crime of endangered species trafficking, framed within the terms of Article 8 of the ICC Statute as, perhaps, an act of pillage, destruction of property, or an unwarranted attack on a civilian objective? For answers to these questions, further study is in order.

“Fatwa Does Not Apply”: Bennoune urges democracy, equality in Arab Spring region

photo CHAUTAUQUA, New York – People in many countries have glimpsed the Arab Spring – and endured the Arab Autumn, and the Arab Winter, California-Davis Law Professor Karima Bennoune told an after-dinner audience here on Monday, the same day that W.W. Norton & Co. published her book Your Fatwa Does Not Apply Here: Untold Stories from the Fight against Muslim Fundamentalism. Karima, a longtime colleague and a contributor to IntLawGrrls blog (among many online and print media), delivered the Katherine B. Fite Lecture, which honors the U.S. State Department lawyer who helped establish the post-World War II International Military Tribunal at Nuremberg. The lecture was a highlight of the just-concluded 7th Annual International Humanitarian Law Dialogs.

Karima began by relating what she called “a genealogy of impunity” – the story of her father and other relatives who, like many others in Algeria, had suffered harms that never have been addressed by truth commission or any other accountability mechanism. Then she surveyed developments across swaths of the Middle East and Africa, recounting stories of rights activists, dissident journalists, and artists whom she met and KarimaBennoune_wrinterviewed over the course of years of field research. Not to mention ordinary persons, like the man she called The Chickpea Vendor of Tahrir Square. Such people, Karima said, are caught between two unacceptable poles: at one end, autocratic despots; at the other, repressive fundamentalists. She insisted:

‘The only solution is to build an alternative, a democracy that respects all voices.’

Bennoune’s impassioned prescription bore echo with the dispassionate comments Dialogs participants had heard earlier in the day from Prince Zeid Ra’ad Zeid Al-Hussein, Jordan’s Permanent Representative to the United Nations. As I already have posted, in his Monday morning keynote lecture, Zeid indicated that stability in the region depended on the emergence of an “authentic,” indigenous “liberal philosophy.” And later in the day, the noted Egyptian-American who is Emeritus Distinguished Research Professor of Law at Chicago’s DePaul University, M. Cherif Bassiouni, likewise cited the need for a democratic ideology based on traditions of the Arab and Muslim worlds.

The repetitions of this exposure of a troubling void, delivered as they were against the backdrop of reports of repression and human rights violations in many Arab Spring countries, no doubt stirred bleakness among the audience. Yet Karima, whose book sits on my desk awaiting a close read, offered glimmers of a brighter future:

‘I do believe there is still hope, because of the courage of the people on the ground … the extraordinary resistance of the people.’

Proposals sought for November Athens conference on “Africans & Globalization”

imagesAfricans and Globalization: Contents and Discontents is the theme of a 3-day international conference to be held here in Athens from November 13 to 15, 2013. Sponsoring the event is the University of Georgia African Studies Institute, a quarter-century-old interdisciplinary unit I’ve just been invited to join as an affiliated faculty member.

The principal conveners, Georgia Professors Ibigbolade Aderibigbe (Religion) and Karim Traore (Comparative Literature), seek proposals for papers and panels to be presented by “academicians, independent scholars, policymakers, and graduate students” who are “working in Africa, the African diaspora, the United States, and other parts of the globe.” They write:

‘Various definitions notwithstanding, globalization refers to the increasing interconnections of societies worldwide. Globalization appears to entail interactions that are not country or continent-bound; moreover, they alter the social, economic, cultural and political existence of participants in different ways.’

Among the questions to be considered:

‘How has globalization (recent and historic) affected Africans (from the continent and the diaspora)?’

Within the overall theme, papers and panels may relate to any number of disciplines, including law. Here’s the conveners’ list:

‘Language, Literature & Film – Political Systems – Sustainable Agricultural and Environmental Development – Social Studies – Anthropology/Sociology – Religion/Philosophy – Education and Knowledge Transmission – History – Medicine and Healthcare Systems – Musicology – Legal and Judicial Systems – Science and Technology – Family, Household & Community – Sports and Recreation’

Abstracts of 500 or fewer words should be e-mailed to Deadline for proposals is August 16, 2013.  Full call for papers, with further details on format for proposals and conference registration, is here.

Papal welcome to migrants appeals to consciences, in Europe & elsewhere

lampedusa“Lampedusa” long had been a household word among persons who follow human migration, though it was unknown to most others. Yesterday, the new pope changed that.

Lampedusa is a tiny island, about a tenth the size of the District of Columbia. And it’s just 70 miles from Tunisia – as close as Italy gets to Africa. (credit for map showing island inside box) For years, that geography’s made it a prime destination for northbound migrants. Yet as IntLawGrrls posts by Jaya Ramji-Nogales and Anna Dolidze have discussed, Europe seldom has welcomed the waves of persons who’ve set sail for Lampedusa. Stories of push-backs on the high seas and of watery deaths in unseaworthy vessels have been all too common, and yet largely ignored.

Attention came yesterday when Pope Francis I sailed south to Lampedusa. He arrived just hours after a boatload of 166 Eritrean migrants had landed at the same port. The Roman Catholic leader, himself the child of emigrants, cast into theVatican Pope Migrants Mediterranean a wreath in remembrance of migrants who perished at sea. (photo credit) Then he disembarked and celebrated a Mass. His homily (Italian video here; full English translation here) welcomed “the dear Muslim immigrants that are beginning the fast of Ramadan,” then cited the Old Testament and a centuries-old Spanish play in the course of urging resistance against what he called “the globalization of indifference” to the suffering of others – of “the people who were on the boat … the young mothers carrying their babies … men who wanted something to support their families ….”

Transmitted globally by reporters who’d made the journey, the pope’s message touched land not just in Italy, but on all the shores to which humans migrate.

Many angles on international law, Washington & the West @ ASIL meeting

whitehouse7apr13lgMemorable bits ’n’ pieces from the just-concluded annual meeting of the American Society of International Law:

► Comments by Dr. Xue Hanqin, who has been a law professor and government official in China and, since 2010, a judge on the International Court of Justice. For a taste of the incisive observations she made during the closing plenary on “Global Governance, State Sovereignty, and the Future of International Law,” consider her opening remark after moderator José Alvarez (NYU Law) introduced the other panelists, Bruno Simma (Michigan Law/Munich Law) and Joel Trachtman (Tufts/Fletcher), then her. I paraphase:

‘I see this panel is “The West – And the Rest.'”

►The emphasis placed on fundamental fairness during a dialogue between Fatou Bensouda, International Criminal Court Prosecutor, and Judge Theodor Meron, President both of the International Criminal Tribunal for the former Yugoslavia and the Mechanism for International Criminal Tribunals. (Video of their Brookings appearance, also last week, is here.) Asked at ASIL about recent acquittals at the ICC and ICTY, as well as the latter’s counterpart for Rwanda, both stressed that accountability is to be equated not with conviction, but rather with the subjecting of charged crimes to a fair process of adjudication of individual criminal liability – a process that accepts the possibility that some individuals will not be found guilty beyond reasonable doubt. (Yours truly made similar points in this 2002 AJIL essay on a 2001 ICTY decision.)

CAREpaket_frei3_01Bruno Simma recalling a day in 1945 or 1946. A 5-year-old boy who had just lived through the end of World War II, he saw a CARE package fall from the sky and into the village in Austria where he lived. In it were watercolors and marbles. They became his only toys. The package, stamped U.S.A., marked his 1st memory of the United States of America. (Simma went on to become a distinguished law professor, 1st in Austria and then in Germany and the United States, as well as a judge on the International Court of Justice. He is now a member of the Iran-U.S. Claims Tribunal, and received ASIL’s Hudson Medal at the annual meeting.)

► A discussion of “The Past & Future of African International Law Scholarship.” I was lucky enough to catch parts of a couple presentations at this panel. Erika George (Utah Law) offered a thoughtful review of From Cape Town to Kabul: Rethinking Strategies for Pursuing Women’s Human Rights, the super new book by Albany Law Dean Penny Andrews. A imagesreview of international economic law books by Uche Ewelukwa-Ofodile (Arkansas Law) underscored that notwithstanding all the troubles covered in mainstream media, Africa is on the rise. (Kudos to moderator/organizer James Gathii, whose Loyola Law class I’d had the pleasure of leading earlier in the week.)

► Not the least by any stretch, the reunion of IntLawGrrls, members of ASIL’s Women in International Law Interest Group, and assorted male friends at Thursday’s luncheon, where I delivered my talk on “International Law and the Future of Peace.” Present in the sold-out room, in addition to our life-size cardboard cutout of proto-foremother Eleanor Roosevelt, were so many women and men – I cannot name them all. Women who have inspired my lifework, like judges Patricia Wald and Joan Donoghue and prosecutor Fatou Bensouda; dear colleagues, like Betsy Andersen, Jaya Ramji-Nogales, and Beth Van Schaack, not to mention Andrea Bjorklund and Karima Bennoune from my former home, California-Davis Law, as well as Laura Kagel, Harlan Cohen, and Charlie Hunnicutt from my current home, Georgia Law; present and former students, like Kate Doty, Kelly Wegel, Kaitlin Ball, Sonia Farber, and Caroline Arbaugh; and the Addis Ababa University Law lecturer and 5 students comprising Ethiopia’s 1st all-woman Jessup team. My thanks to all who were able to attend or sent their regards. Thanks too, of course, to WILIG, which has just launched a mentoring program that generated much excitement among the young international lawyers present.

► After the meeting ended, I headed to the National Gallery of Art (the Dürer exhibit and the Matisse cutout room are must-sees; the pre-Raphaelites, not so much). Standing at a corner monwhere we pedestrians had a good view of the 555-foot-tall marble obelisk known as the Washington Monument, a wee boy asked his father an excellent, and perhaps unanswerable, question:

‘Why did we built that?’