Tag: Germany

“A New History of the Nuremberg Trials” presented at Oxford University’s Bonavero Institute of Human Rights

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OXFORD – A capstone of my Hilary-Trinity Term visit here took place yesterday, when I presented “A New History of the Nuremberg Trials: Figuring Women and Others into the Narrative” to law students and faculty who gathered at the Bonavero Institute of Human Rights, located at Oxford University’s Mansfield College. The Oxford Transitional Justice Research network cosponsored.

Professor Kate O’Regan, director of the institute and a former judge on the Constitutional Court of South Africa, opened my Research Visitor Seminar. Then came my  presentation of my research on the roles women played at Nuremberg – not only the Trial of the Major War Criminals before the International Military Tribunal, but also the 12 subsequent American trials before what are known as the Nuremberg Military Tribunals. Next, Dapo Akande, Professor of Public International Law at Oxford’s Blavatnik School of Government, offered discussant’s remarks before opening the floor for a stimulating round of Q&A.

I’m grateful to all at the Institute for this event and the hospitality I’ve enjoyed during my stay at a Bonavero Research Visitor and Mansfield College Visiting Fellow. Grateful, too, for the opportunities I’ve had to present this work elsewhere in Europe, at the Irish Centre for Human Rights at the National University of Ireland Galway, University of Stockholm, University of Göttingen, and Max Planck Institute Luxembourg.

Reading “Retreat of Western Liberalism” a half-year on

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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.

In passing: Hans-Peter Kaul, ICC judge, German diplomat, antiwar activist

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kaulSaddened to read that Judge Hans-Peter Kaul, a pivotal member of the International Criminal Court’s founding generation, has passed away. The in memoriam notice at the ICC website reports that he died yesterday, as a result of the serious illness that earlier this month compelled his resignation after nearly a decade on the ICC bench.

That tenure continued service to the ICC which had begun in 1998, when Kaul, then a diplomat, led the German delegation at the Rome Conference. He recalled the climax of that conference in a 2012 guest post for IntLawGrrls:

After the decisive vote on the Rome Statute, our founding treaty, there is some kind of explosion, an enormous outpouring of emotions, of relief among those present, unparalleled for such a conference: screams, stamping, exultation without end, tears of joy and relief; hard-baked delegates and journalists who have frowningly watched the entire conference hug each other in a state of euphoria. And a German delegate, normally a level-headed man, jumps up and down like a rubber ball and keeps punching me in the ribs, completely breathless,

‘Herr Kaul, Herr Kaul, we’ve done it! We’re getting an international criminal court!’

Kaul was born 70 years ago this Friday, in Glashütte, near Germany’s border with what is now the Czech Republic. The year was 1943. World War II raged, and memories of his boyhood during that war and its aftermath–including the postwar trials at Nuremberg–never were far from his work on behalf of international criminal justice.

This was evident in his most significant ICC opinion, a dissent from a panel’s preliminary ruling in the Court’s ongoing case involving 2007-2008 post-election violence in Kenya. In a 19-page commentary labeled Dissenting Opinion of Judge Hans-Peter Kaul to Pre-Trial Chamber II’s “Decision on the Prosecutor’s Application for Summons to Appear for William Samoei Ruto, Henry Kipono Kosgey and Joshua Arap Sang” (15 March 2011), Kaul invoked the Nuremberg legacy to argue that only violence at a level of “state-like ‘organisation'” could constitute crimes against humanity. It is an argument that continues to generate academic debate.

Another link to Nuremberg may prove even more lasting. In recent years, Kaul was an impassioned and indefatigable advocate for make the crime of aggression punishable by the ICC. His German delegation had pushed successfully for the listing of that crime–a signature offense at Nuremberg–in Article 5 of the Rome Statute. (Prior posts here and here.) After the Assembly of States Parties adopted the 2010 Kampala amendments to activate the ICC’s crime of aggression jurisdiction, Kaul campaigned actively for ratification. Every time he and I crossed paths, at Chautauqua, The Hague, or elsewhere, Judge Kaul was quick to report on the status of that campaign–and to express particular pride when his native country and its linguistic neighbors deposited their instruments of ratification or accession.

With the ratification by Austria last Friday–the 16th anniversary of the adoption of the Rome Statute–the Kampala amendments have garnered half the 30 ratifications needed for entry into force. (Also required is another Assembly vote.) States that have joined to date are Andorra, Austria, Belgium, Botswana, Croatia, Cyprus, Estonia, Germany, Liechtenstein, Luxembourg, Samoa, Slovakia, Slovenia, Trinidad and Tobago, and Uruguay. Numerous other states, including many others in the North Atlantic Treaty Organization, are reported to be nearing joinder.

Kaul was crystal clear about the reason he pushed for these amendments: The child of war saw activation of crime of aggression jurisdiction as an essential step toward ending war altogether. In his IntLawGrrls post as in other writings and lectures, he explained:

War–this is the ultimate threat to all human values; war is sheer nihilism. It is the total negation of hope and justice. Experience shows that war, the injustice of war in itself, begets massive war crimes and crimes against humanity. In my nine years as a Judge of the ICC, I have seen that, as in the past century, a terrible law still seems to hold true: war, the ruthless readiness to use military force, to use military power for power politics, regularly begets massive and grievous crimes of all kinds.

In Kaul’s view, the prosecution of jus in bello violations is important, yet an incomplete, a symptomatic approach, unless it is accompanied by the prosecution for jus ad bellum violations. His own pithy words are a fitting epitaph:

War crimes, they are the excrement of war.

A lawyer looks at “Monuments Men”

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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)

Jordanian diplomat on Arab world & international justice & accountability

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zeidCHAUTAUQUA, New York – Without the emergence of a genuine, contemporary Arab philosophy, a top Jordanian diplomat predicted today, stops and starts likely will remain the present and near future in the Middle East. To be precise, the diplomat, Prince Zeid Ra’ad Zeid Al-Hussein, Jordan’s Permanent Representative to the United Nations, told participants in the 7th International Humanitarian Law Dialogs here in upstate New York:

‘When we look at the Arab world, there is no authentic Arab liberal philosophy, and no authentic Arab liberal philosopher, at this moment.’

Citing developments in Iraq since 1968, Zeid said that an earlier such philosophy, the Baath movement, “a strong socialist Arab tradition,” fell apart. The “absence of a genuine drive to articulate something from within” has left a void:

‘If you don’t have an authentic Arab liberal philosophy … what you have in default is the Islamic ideologies which are authentic to the region.’

A new tradition rooted in Arab tradition is essential to “escape” from “mimicking” Western liberal philosophy, he said, noting that citations to documents like Rousseau’s Social Contract invite “the charge that these are important Western ideas. And so he urged liberals to “start writing,” to theorize liberal traditions “in Arab terms” and “grammar.” Until that happens, he predicted:

‘For a long time we are going to see this rather jerky movement backward and forward. … That will be the narrative for sometime to come.’

Zeid’s comments formed the opening lecture for a conference ostensibly devoted to accountability; after all, the centerpiece of the Dialogs is the coming-together of chief prosecutors from each of the international criminal tribunals and courts. Yet Zeid – who helped draft founding documents of the International Criminal Court and served as the 1st President of the ICC Assembly of States Parties – stopped far short of recommending a rush to judgment. Citing history in post-World War II Germany as his example, Zeid called for creating post-conflict “space” within which fighters might come to terms with the conflict, before the onset and investigation of trials. Having spoken of events in Syria, Egypt, Libya, and Yemen, he said:

‘Many of us have been very passionate supporters of inserting courts into events where a tremendous amount of blood has been spilled. I really think we have to revisit this – not reduce support for the ICC, but we need to develop a more nuanced field.’

Given Zeid’s role in the establishment of the ICC, the comments seem to herald a new moment in the field accountability and transitional justice. Should that be, one hopes for a comprehensive, effective, and well-resourced mix of responses – not confusion that amounts to a retreat from the field.

Disparition: Jacques Vergès (1925?-2013)

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?????????????????????????????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.’

U.S. law & G8 Ministers’ call for donations to Rome Statute’s Trust Fund for Victims

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Notable in the just-released White House recap of its efforts to prevent mass atrocities is the foregrounding of 2 actions this year:

► Enactment in January of “bipartisan legislation to enhance our ability to offer financial rewards” – up to $5 million – “for information that helps to bring to justice” selected international indictees, among them “Joseph Kony and other senior leaders of the Lord’s Resistance Army, as well as Sylvestre Mudacumura from the Democratic Forces for the Liberation of Rwanda….”

► Developments in March, when “[t]he United States facilitated the voluntary surrender of Bosco Ntaganda” to stand trial “for war crimes and crimes against humanity….”

g8What’s notable is that both actions – like others noted in this commentary by Professor David Kaye – come to the aid of the indicting organization, the Hague-based International Criminal Court.  The same is true of an action not mentioned in the recap; that is, the Declaration on Preventing Sexual Violence in Conflict adopted at a mid-April London meeting. Paragraph 5 of the Declaration concludes:

‘Ministers emphasised the need for further funding support for victims and called on the international community, including the G8, to increase their efforts to mobilise such funding, including to programmes such as the ICC Trust Fund for Victims and its implementing partners.’

“Ministers” refers to the Foreign Ministers of the European Union and all members of the G-8. Thus joining the Declaration were 2 countries not party to the ICC’s Rome Statute: Russia and the United States. (credit for AFP photo made at the G-8 meeting of Foreign Ministers – from left, minsCatherine Ashton, European Union; John Baird, Canada; Laurent Fabius, France; John Kerry, United States; William Hague, Britain; Sergey Lavrov, Russia; Guido Westerwelle, Germany; Fumio Kishida, Japan; and Mario Monti, Italy)

These actions prompt examination of the potential extent of U.S. support for the ICC – in particular, given the G-8 Declaration, U.S. support for the Trust Fund for Victims. Would U.S. financial contributions to the Trust Fund for Victims contravene the American Service Members Protection Act? A preliminary look at the question indicates that they would not.

Section 2004 of the Act prohibits the giving of various forms of “cooperation,” “support,” and “appropriated funds” to the “International Criminal Court.” Section 2013(6) has the following definition:

‘INTERNATIONAL CRIMINAL COURT – The term “International Criminal Court” means the court established by the Rome Statute.’

The definition gives rise to a question: Does the Trust Fund fall within that statutory term “the court”?

Despite some writings on the workings of the Trust Fund (e.g., here), there appears to be little in-depth scholarship on the organizational relationship between it and the Court. An expert on international organizations ought to take this on.

Still, ICC documents seem to set the Fund apart from the Court; that is, the Trust Fund is established to benefit victims of crimes in the Court’s jurisdiction, but is not expressly itself within the Court’s jurisdiction. It is governed by the Assembly of States Parties, as is the Court, but there is an argument that it is not part of the Court. Indeed, a 2007 amendment permits earmarking of voluntary contributions to the Trust Fund in a way that sets such donations outside the frame of the Court. Both are within the “Rome Statute system,” as ICC Prosecutor Fatou Bensouda and others term it, but they arguably are separate entities within that system.

Note too that the founding resolution does not seem to limit membership on the Trust Fund board of directors to nationals of states parties. Assuming later-promulgated regulations do not change this, that would make this board different from other elected positions, like ICC judge and ICC prosecutor, and again suggests a different status.

Now consider Section 2004(f) of the American Service Members Protection Act:

‘PROHIBITION ON USE OF APPROPRIATED FUNDS TO ASSIST THE INTERNATIONAL CRIMINAL COURT – Notwithstanding any other provision of law, no funds appropriated under any provision of law may be used for the purpose of assisting the investigation, arrest, detention, extradition, or prosecution of any United States citizen or permanent resident alien by the International Criminal Court.’

The phrasing begs the question whether there is a ban on U.S. funding in any instance in which the suspect or accused is not a “United States citizen or permanent resident alien.” It seems even more clear that funding reparations – aiding victims, without regard to perpetrators – is something wholly outside the scope of “investigation, arrest, detention, extradition, or prosecution.” By this reasoning, U.S. financial contributions to the Trust Fund for Victims, which has no role at all in “investigation, arrest, detention, extradition, or prosecution,” are not prohibited by the American Service Members Protection Act. (See further limits on the Act’s scope – including reference to unofficial reports of a confidential Office of Legal Counsel memo on the issue – at pages 6-11 and 17 of a 2010 American Society of International Law compilation of white papers, Beyond Kampala: Next Steps for U.S. Principled Engagement with the International Criminal Court.)

The above interpretation of the Act’s funding rules cannot be extended to subsequent legislation, by which Congress imposed a blanket ban on using appropriated funds “for use by, or for support of, the International Criminal Court,” unless and until the now-unlikely event that the United States ratifies the Rome treaty following 2/3 approval by the Senate. The latter amendment, however, defines “International Criminal Court” in much the same way as the above-quoted Section 2013(6) of the American Service Members Protection Act; thus the question lingers whether the Trust Fund falls within the scope even of the latter amendment’s ban.

dosA final point respecting the American Service Members Protection Act: U.S. contributions to the Trust Fund would not contradict the intent of Congress, as it may be inferred from the Section 2002 Findings with which the Act begins. Donating to the Trust Fund for Victims in no way would enable the Court to pursue U.S. nationals or other “covered” individuals. It would have no relation to the ICC offense that appeared to give Congress most concern, the not-yet-fully-punishable crime of aggression. And with regard to Finding #4, which quotes the 1998 statement in which then-Ambassador David Scheffer opposed the Rome Statute on the ground that “‘[w]e are left with consequences that do not serve the cause of international justice,'” one discerns a congressional willingness to support institutions (such as ad hoc tribunals, which are exempted from the Act) that in fact serve that cause. U.S. contributions to reparations, via the Trust Fund for Victims, would meet that criterion.

Consideration of such contributions would further the United States’ current policy of positive engagement with the Rome system of international criminal justice. Reconsideration of all federal statutory barriers, a move supported by a range of U.S. experts (among them, Professor Kaye and former State Department Legal Adviser John B. Bellinger III), seems yet another logical next step.

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

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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_01► Bruno 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?’

U.S. Executive repudiates DOMA at home, even as overseas allies expand gay rights

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US-Flag-and-Rainbow-Flag-e1330027721669-275x300Yesterday the Obama Administration urged the U.S. Supreme Court to invalidate § 3 of the 1996 Defense of Marriage Act, which defines “marriage” as the union of a man and a woman, and thus precludes extension of many benefits to spouses in same-sex marriages. The Brief for the United States on the Merits Question in United States v. Windsor argued that:

  1. The Court must examine the legality of discrimination based on sexual orientation at a heightened level; and
  2. Such heightened scrutiny exposes the statute as a violation of the equal protection obligations that the 5th Amendment places on the United States. (I examined that constitutional doctrine in a 2010 article.)

Acknowledging intervenor’s “appeal to this Court to allow the democratic process to run its course,” the government’s brief in Windsor concluded:

‘That approach would be very well taken in most circumstances. This is, however, the rare case in which deference to the democratic process must give way to the fundamental constitutional command of equal treatment under law. Section 3 of DOMA targets the many gay and lesbian people legally married under state law for a harsh form of discrimination that bears no relation to their ability to contribute to society. It is abundantly clear that this discrimination does not substantially advance an interest in protecting marriage, or any other important interest. The statute simply cannot be reconciled with the Fifth Amendment’s guarantee of equal protection.’

With the filing of this brief and others, focus in the United States now shift to the Court, which will hear arguments in Windsor and another marriage-equality case, Hollingsworth v. Perry, at the end of March. (IntLawGrrls’ posts on these cases available here.) (photo credit)

In the meantime, worth noting are developments in countries the United States has long considered allies – countries with which the United States shares fundamental rights traditions:

Given recent U.S. decisions’ silence on foreign law, it will come as no surprise if these developments  prompt scant mention in the March arguments in Windsor and Perry. Nevertheless, these overseas threads will form part of the fabric of Justices’ deliberation.