culture

blackOSLO –  Remember the famous Edvard Munch image of The Scream? Well, that’s it at left. At least, that’s how it looked to me on first glimpse at the Munchmuseet, a highlight of this Norwegian capital.

A while back, thieves stole The Scream and another painting, Madonna, from this museum. Both eventually were recovered and again placed on display. But The Scream suffered damage. And so when I entered the small room where it hangs, I found nothing but darkness, so much that I began to leave. Suddenly, an unseen guard said:

‘No, wait. Magic will happen.’

As I inched again into the room, a motion-sensor was triggered, and The Scream emerged from the blackness. The 1893 oil painting’s bright colored swirls madonnawere more brilliant, more moving in person than in any reproduction –  so much more expressive than Munch’s black and white lithograph of the same image. True magic.

A ban on photography in that room precludes showing any but the “before” picture. But the photo at right of the other formerly stolen painting, Madonna, serves to remind of Munch’s eerie genius.

(Thanks to Cecilia Marcela Bailliet and her colleagues at the University of Oslo PluriCourts project for the opportunity to visit and take part in a brilliant conference.)

Stunned to listen to this poem by Caitlyn Clark, recited on stage at a John Legend’s Hollywood Bowl concert 2 days ago. It’s moving, heartfelt, raw, and real. She wants to make revolution not with the children who have been felled but with those who still live and can bring change to our troubled times. And, I am most proud to say, she is my cousin, daughter of my favorite first cousin, who, as she tells the world in this amazing video, did 6 months’ active duty at Bagram Prison, Afghanistan. ¡Brava, Caitlyn!

Fifa2014WorldCupQualifiersAny of my fellow fans of sports and international law notice that all but 5 of the 32 teams playing in this year’s World Cup are states parties to the Rome Statute of the International Criminal Court? They are Argentina, Australia, Belgium, Bosnia and Herzegovina, Chile, Colombia, Costa Rica, Côte d’Ivoire, Croatia, Ecuador, England (United Kingdom is the state party), France, Germany, Ghana, Greece, Honduras, Italy, Japan, Mexico, Netherlands, Nigeria, Portugal, Republic of Korea, Spain, Switzerland, Uruguay, and, of course, the host state, Brazil. (image credit)

The 5 nonparty outliers? Algeria, Cameroon, Iran, Russia, and, of course, the United States.

The combined victory record of those outliers = 1 win, out of 6 games played. Just sayin’.

gassed

In this month that marks the centenary of World War I, the U.S. Supreme Court evoked an epic image of that global conflict. Thus was rejected today the prosecutorial conflation of chemical warfare with what the Court in Bond v. United States called an “unremarkable local offense.”

The image is the one above: John Singer Sargent’s 1919 painting, Gassed. Fully 20 feet wide and 7-1/2 feet tall, it hangs in the Imperial War Museum in London. (image credit) Writing for a 6-member majority, Chief Justice John G. Roberts, Jr., described the scene, one that Sargent had encountered in 1917 on a battlefield in France:

‘[T]wo lines of soldiers, blinded by mustard gas, clinging single file to orderlies guiding them to an improvised aid station. There they would receive little treatment and no relief; many suffered for weeks only to have the gas claim their lives. The soldiers were shown staggering through piles of comrades too seriously burned to even join the procession.’

The tragedy, Roberts wrote, contributed “to an overwhelming consensus in the international community that toxic chemicals should never again be used as weapons against human beings” – a consensus reflected in instruments like the 1992 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, which today has 190 parties. Among them is the United States, which, Roberts explained, “gave domestic effect” to the obligations it had assumed under that treaty in 1998, when it passed the Chemical Weapons Convention Implementation Act, 18 U.S.C. § 229 et seq. The statute makes the use of “chemical weapons,” a federal crime, punishable by death if the use resulted in death. It “‘goes without saying,'” Roberts concluded, that Congress had in mind tragedies along the lines depicted above – or at least as grave as the mid-1990s sarin gas attacks in Japan. He deemed well out of Congress’ mind the facts at bar: “an amateur attempt by a jilted wife to injure her husband’s lover, which ended up causing only a minor thumb burn readily treated by rinsing with water.”

This overturning of a federal conviction on federalism grounds did more than give perspective on the acts under review. It also avoided the asked-for reconsideration of Missouri v. Holland (1920), a precedent nearly as old as Sargent’s painting. There a unanimous Court upheld a federal statute that gave domestic effect to a 1916 treaty by regulating the hunting of birds that fly between the United States and Canada. Invoking the Constitution’s treaty-making and supremacy clauses, Justice Oliver Wendell Holmes, Jr., wrote:

‘If the treaty is valid, there can be no dispute about the validity of the statute under Article I, § 8, as a necessary and proper means to execute the powers of the Government.’

Holmes’ terse reasoning invites questions, many of them bruited about in the months since the Court announced it would review the decision below in Bond. (See, for example, this article by my Georgia Law colleague Harlan Cohen.) Roberts’ majority opinion declined, but 3 Justices who disagreed with him accepted that invitation. “[T]he Treaty Power is itself a limited federal power,” Justice Clarence Thomas wrote in a concurrence-in-the-judgment that Justices Antonin Scalia and Samuel Alito, Jr., joined. In another concurrence-in-judgment Scalia, joined by Thomas, attributed others’ reluctance to revisit Holland to the nature of the case. “We would not give the Government’s support of the Holland principle the time of day,” they insisted, “were we confronted with ‘treaty-implementing’ legislation that abrogated the freedom of speech or some other constitutionally protected individual right.” Whether they are right remains a question for another day.

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.

IWC latest logo 210x64Some lawmakers and lobbyists in Japan displayed their distaste for whaling bans this week with a whale-meat eat-in in Tokyo. The Japan Daily Press reported:

‘In an act of defiance against a recent ruling by the International Court of Justice (ICJ) halting the nation’s whale hunts, pro-whaling legislators and lobby group gathered on Tuesday to eat whale meat while pledging to continue what they call one of the country’s centuries-old traditions.’

Stoking these opponents’ appetite was the March 31 judgment in Whaling in the Antarctic (Australia v. Japan: New Zealand intervening). (Prior posts here and here.) The Hague-based court held 12-to-4 that Japan had violated the 1946 International Convention on the Regulation of Whaling by granting permits to harvest 3 species of whales areasin an area of the seas known as the Southern Ocean Sanctuary. (In yellow on map at right; see p. 3 here.) Japan asserted that a scientific research exception to the Convention’s whaling ban justified the hunts. But a majority of the ICJ disagreed, in a ruling that Rutgers Professor Cymie Payne analyzed in a recent ASIL Insight. (credit for above logo of the International Whaling Commission, which monitors compliance with the Convention)

Yesterday, the Japan Times reported, Japan’s government announced that it would still engage in what it calls research whaling, albeit at a reduced rate and in regions other than the area of concern to the ICJ case. The report indicated that the decision to go forward marked a victory for Japan’s Fisheries Ministry and a defeat for its Foreign Ministry.

Particularly vocal among the opponents of the ICJ’s ruling has been the man who’s served as Fisheries Minister since last December: Yoshimasa Hayashi, a Harvard Kennedy School graduate. Hayashi spoke at the Tokyo banquet on Tuesday. And in a February interview with Japan Times, he explained his position:

‘Japan is an island nation surrounded by the sea, so taking some good protein from the ocean is very important. For food security, I think it’s very important … We have never said everybody should eat whale, but we have a long tradition and culture of whaling. So why don’t we at least agree to disagree? We have this culture and you don’t have that culture.’

Payne’s Insight agreed that, notwithstanding the March 31 issuance of the ICJ’s opinion, resolution of “fundamental cultural conflict[s]” awaits another day.

AAA_howethom_47898Suppose it’s like aiming at fish in a barrel to name the many flaws in The Monuments Men, now playing in cinemas. There’s the failed Oceans 1944 sense of it – it’s a buddy movie with no true friends. There’s the cinematography that looks like a green-screen loop of some field in the San Fernando Valley, accented by some surprisingly flat Paris street scenes. There’s the absence of any love interest; indeed, so little love is lavished on the artworks recovered by the “Men” (with the essential help of one woman) that the viewer is left wondering what the fuss was about.

This lawyer feels compelled to focus on a different flaw, on how the film squandered an opportunity to raise awareness about the laws of cultural heritage and armed conflict.

At one point in “Monuments,” the leader of the American search team questions a German colonel. Captured while destroying medieval and Renaissance masterpieces that the Nazis had seized from churches, private collections, and public museums, this POW refuses to talk: “I have done nothing wrong, and pursuant to the Geneva Convention, soon I will be repatriated.” The American’s oh-no-you-won’t retort turns on the colonel’s earlier actions at a concentration camp. It is an odd turn, given the film’s ostensible concern with looted art.

Well before World War II, international injunctions against such destruction already were in place. Armies were bound to distinguish between combatants and civilians, and only permitted to attack the person and property of the former. Article 23(g) of the Regulations concerning the Laws and Customs of War on Land, annexed to the 1899 Hague Convention (II) with Respect to the Laws and Customs of War on Land and to its 1907 reiteration, deemed it

‘especially prohibited … [t]o destroy or seize the enemy’s property, unless such destruction or seizure be imperatively demanded by the necessities of war.’

Articles 25 and 28, dealing with attacks and pillage, reinforced this prohibition.

In short, the colonel’s actions respecting art were not just immoral. They were illegal, even then, a decade before the proscriptions were spelled out in detail via the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict. Given the continued violations of such proscriptions – Syria and Mali jump to mind – one wishes the movie had stressed this fact.

(credit for 1946 photo of Belgian Lt. Raymond Lemaire and Capt. Edith Standen, U.S. Women’s Army Corps (neither mentioned in the film), holding a portrait by Peter Paul Rubens, part of Smithsonian Institution online exhibit on the “Monuments” recoveries)

photo2As we await the oven exit of our holiday bird, can’t help thinking about the sad fate of the pastry blender.

A search beyond my standard cookbooks for a new recipe for an after-dinner sweetie suggested that these days, all mixing must be done by machine – preferably a very heavy, very expensive food processor. They were all the vogue when I got married, and remain so. But I passed then, and now. So this Thanksgiving found me retrofitting a crust recipe for photothe handy implement above and, well, hands.

Judging by the photo at right, don’t think we will suffer one bit for our  reversion to a more tactile era of baking.

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.