ICC

Honored to have contributed on the doctrine of command responsibility to the newest edition of ICC Forum, an online publisher of essays on human rights and international criminal law. My essay was one of several responding to this question, posed by the editors:

“What does the Bemba Appeal Judgment say about superior responsibility under Article 28 of the Rome Statute?”

My own response, entitled “In Bemba, Command Responsibility Doctrine Ordered to Stand Down,” amplified an argument I’d made in an EJIL: Talk! contribution last year (prior post).

Specifically, it traced the development of the international-humanitarian- law/law-of-armed-conflict-doctrine that places on military commanders a burden greater than that shouldered by other combatants. It then turned to the International Criminal Court Appeals Chamber’s 2018 judgment in Bemba. The majority’s interpretation of the ICC Statute’s command-responsibility provision, my essay argued, risks tolerating “derelictions of duty” so as “to condone indiscipline,” and thus “to increase the risks of the very harms that the doctrine of command responsibility is intended to dispel.” As a result, perhaps “no one can be held to account.”

Other invited experts who contributed essays were: Miles Jackson, Associate Professor of Law, Jesus College, University of Oxford; Michael A. Newton, Professor of the Practice of Law and Political Science at Vanderbilt University Law School; Nadia Carine Fornel Poutou, Executive President Association of Women Lawyers of Central African Republic; and Leila Nadya Sadat, James Carr Professor of International Criminal Law at Washington University School of Law.

ICC Forum is supported by the Promise Institute for Human Rights at UCLA School of Law; UCLA Law Professor Richard H. Steinberg serves as Editor-in-Chief.

This International Women’s Day, Friday, March 8, 2019, experts will gather here in Athens for a conference entitled “The International Criminal Court and the Community of Nations.”  Featured will be panels on the ICC’s relation to various constituent communities, as well as a video message from the ICC Prosecutor, Fatou Bensouda.

Principal sponsors of this University of Georgia School of Law conference are the Georgia Journal of International & Comparative Law and the Dean Rusk International Law Center, which I am honored to serve as a Faculty Co-Director. I’m pleased to serve as faculty adviser for this conference, given my ongoing role as Special Adviser to Prosecutor Bensouda on Children in & affected by Armed Conflict, and also to be joined at this conference by her Special Adviser on Crimes Against Humanity, Leila Nadya Sadat.

The conference concept note begins with a quote from the Preamble of the 1998 Rome Statute of the International Criminal Court, whose Hague headquarters of which are depicted above. In it, states parties “[r]esolved to guarantee lasting respect for and the enforcement of international justice.” The concept note continues:

“Across the globe, resurgent nationalisms place stress on institutions designed to promote human and collective security through international cooperation. Critiques – even, at times, outright denunciations – compel such institutions to re-examine, in a process that poses challenges yet also portends opportunities for renewal. The dynamic surely affects the International Criminal Court. In the last several months alone, states as varied as Burundi, the Philippines, and the United States have levied harsh criticism against this twenty-year-old justice institution, established in recognition that “children, women and men have been victims of unimaginable atrocities” that “threaten the peace, security and well-being of the world.” In the same time frame, the ICC Prosecutor welcomed a multistate referral of alleged crimes in Venezuela and launched a preliminary examination into alleged forced deportation in Myanmar, and the Court as a whole continued complementary efforts to strengthen national and regional prevention and accountability. It did so within legal, geopolitical, and budgetary constraints imposed by a trio of stakeholder communities.

“Experts from academia and the practice will cast a critical eye on ‘The International Criminal Court and the Community of Nations’; that is, on the place of the ICC vis-à-vis communities of states parties, nonparty states, and nonstate stakeholders, as well as inherited communities. Presentations will be published in the Georgia Journal of International and Comparative Law.”

Here’s the schedule:

8:45-9:00 Welcome

Dean Peter B. “Bo” Rutledge University of Georgia School of Law

9:00-10:30  Community of States Parties

Diane Desierto University of Notre Dame Keogh School of Global Affairs ǀ The Philippines and the International Criminal Court: Withdrawal from the Rome Statute and the War on Drugs

Mark Kersten Wayamo Foundation, University of Toronto Munk School of Global Affairs ǀ On the Road to Compromise? African States and the International Criminal Court

Naomi Roht-Arriaza University of California Hastings College of the Law ǀ The Role of the Court in Latin America

Leila Nadya Sadat Washington University School of Law ǀ States Parties and the Shifting Sands of the Court’s Jurisprudence

David Tolbert Duke University Sanford School of Policy ǀ A Look Back, Learning from the Experiences of the Ad Hoc Tribunals: What Lessons for the ICC?

Moderator ǀ Kathleen A. Doty University of Georgia School of Law

11:00-12:30  Community of Nonstate Stakeholders

Tess Davis Antiquities Coalition ǀ Cultural Heritage as an International Criminal Court Stakeholder

Christopher Engels Commission for International Justice & Accountability ǀ Private Investigations, Public Partnerships—Supporting International Criminal Prosecutions through Nongovernmental Organizations

Megan A. Fairlie Florida International University School of Law ǀ The International Criminal Court and the Community of Nonstate Stakeholders: Defense Issues

Valerie Oosterveld University of Western Ontario Faculty of Law ǀ Victims of Sexual and Gender-Based Violence as Stakeholders in the International Criminal Court: An Assessment

Peter Robinson Defense Counsel before International Criminal Court ǀ How the Defense Can Support the ICC

Moderator ǀ Melissa J. Durkee University of Georgia School of Law 

1:45-2:00  Video Remarks

Fatou Bensouda International Criminal Court Prosecutor

2:00-2:35  Inherited Communities

Diane Marie Amann University of Georgia School of Law ǀ What Would Maître Chalufour Say Today?

Mark A. Drumbl Washington & Lee University School of Law ǀ What Would Justice Pal Say Today?

2:45-3:45  Community of Nonparty States

Chimène Keitner University of California Hastings College of the Law ǀ International Institutions and the “Ideology of Patriotism”

Jane E. Stromseth Georgetown University Law Center ǀ The United States and the ICC: Why John Bolton’s Attack on the ICC Is Not in U.S. Interests

Saira Mohamed University of California Berkeley School of Law ǀ States Parties, Non-States Parties, and the Idea of International Community

Moderator ǀ Harlan G. Cohen University of Georgia School of Law

3:50-4:00  Closing Remarks

Morgan Renee Thomas Editor-in-Chief, Georgia Journal of International and Comparative Law

Registration, for CLE credit, and other details here. Additional cosponsors include the International Law Society, Georgia Law’s chapter of the the International Law Students Association, along with SPIA, the University of Georgia School of Public & International Affairs.
(Cross-posted from Exchange of Notes)

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.”


“‘Protecting Children’: A Welcome Addition to Efforts to Redress Wartime Harms,” an essay I published yesterday at Just Security, underscores connections among a number of recent initiatives related to children and armed conflict.

The essay welcomes Protecting Children in Armed Conflict (Hart Publishing 2018), the 600-page report of the 2017 Inquiry on Protecting Children in Armed Conflict spearheaded by Gordon Brown, former British Prime Minister and current UN Special Envoy for Global Education. (I served on the Inquiry’s Advisory Panel.)

Leading a team of researchers was Shaheed Fatima QC, a barrister at London’s Blackstone Chambers, who spoke on this work at the International Law Weekend panel last month. (prior post here) My Just Security essay offers a detailed description and favorable critique of this research, noting the work’s connections with what the UN Security Council terms the “Six Grave Violations against Children in Armed Conflict.”

The essay further draws links between this work and the 2016 International Criminal Court Office of the Prosecutor Policy on Children, which I had the honor of helping to prepare in my ongoing service as ICC Prosecutor Fatou Bensouda’s Special Adviser on Children in & affected by Armed Conflict. (prior post here) The essay points to “the complementary potential of these and other initiatives,” and concludes:

Together, they may advance two essential goals: first, to articulate norms prohibiting wartime harms against children; and second, to secure redress for any such harms that occur.

My Just Security essay is here. It is part of a miniforum which began with a post last week jointly authored by Fatima and Brown, available here. The Just Security series will continue with forthcoming posts by Sarah Knuckey (Columbia Law), Alex Moorehead (Columbia Law), and Alex Whiting (Harvard Law).

NEW YORK – Ways to redress offenses against children during armed conflict formed the core of the panel that our University of Georgia School of Law Dean Rusk International Law Center sponsored last Friday at International Law Weekend, an annual three-day conference presented by the American Branch of the International Law Association and the International Law Students Association. I was honored to take part.

► Opening our panel was Shaheed Fatima QC (top right), a barrister at Blackstone Chambers in London, who led a panel of researchers for the Inquiry on Protecting Children in Conflict, an initiative chaired by Gordon Brown, former United Kingdom Prime Minister and current UN Special Envoy for Global Education.

As Fatima explained, the Inquiry focused on harms that the UN Security Council has identified as “six grave violations” against children in conflict; specifically, killing and maiming; recruitment or use as soldiers; sexual violence; abduction; attacks against schools or hospitals; and denial of humanitarian access. With regard to each, the Inquiry identified legal frameworks in international criminal law, international humanitarian law, and international human rights law. It proposed a new means for redress: promulgation of a “single instrument” that would permit individual communications, for an expressed set of violations, to the Committee on the Rights of the Child, the treaty body that monitors compliance with the Convention on the Rights of the Child and its three optional protocols. These findings and recommendations have just been published as Protecting Children in Armed Conflict (Hart 2018).

► Next, Mara Redlich Revkin (2d from left), a Ph.D. Candidate in Political Science at Yale University and Lead Researcher on Iraq and Syria for the United Nations University Project on Children and Extreme Violence.

She drew from her fieldwork to provide a thick description of children’s experiences in regions controlled by the Islamic State, an armed group devoted to state-building – “rebel governance,” as Revkin termed it. Because the IS sees children as its future, she said, it makes population growth a priority, and exercises its control over schools and other “sites for the weaponization of children.” Children who manage to free themselves from the group encounter new problems on account of states’ responses, responses that Revkin has found often to be at odds with public opinion. These range from the  harsh punishment of every child once associated with IS, without considering the extent of that association, to the rejection of IS-issued birth certificates, thus rendering a child stateless.

► Then came yours truly, Diane Marie Amann (left), Emily & Ernest Woodruff Chair in International Law here at the University of Georgia School of Law and our Center’s Faculty Co-Director. I served as a member of the Inquiry’s Advisory Board.

Discussing my service as the Special Adviser to the Prosecutor of the International Criminal Court on Children in and affected by Armed Conflict, I focused on the preparation and contents of the 2016 ICC OTP Policy on Children, available here in Arabic, English, French, Spanish, and Swahili. The Policy pinpoints the crimes against and affecting children that may be punished pursuant to the Rome Statute of the International Criminal Court, and it further delineates a “child-sensitive approach” to OTP work at all stages, including investigation, charging, prosecution, and witness protection.

► Summing up the conversation was Harold Hongju Koh (2d from right), Sterling Professor of International Law at Yale Law School and former Legal Adviser to the U.S. Department of State, who served as a consultant to the Inquiry.

Together, he said, the presentations comprised “5 I’s: Inquiry, Iraq and Syria, the ICC, and” – evoking the theme of the conference – “international law and why it matters.” Koh lauded the Inquiry’s report as “agenda-setting,” and its proposal for a means to civil redress as a “panda’s thumb” response that bears serious consideration. Koh envisaged that in some future administration the United States – the only country in the world not to have ratified the Convention on the Rights of the Child – might come to ratify the proposed new  protocol, as it has the optional protocols relating to children in armed conflict and the sale of children.

The panel thus trained attention on the harms children experience amid conflict and called for redoubled efforts to secure accountability and compensation for such harms.

One week after the International Criminal Court Appeals Chamber acquitted a Congolese politician-warlord whom a Trial Chamber unanimously had convicted of rape, pillage, and other crimes, practitioners and scholars continue to debate the decision’s significance. Indeed, the case, Prosecutor v. Bemba, has been invoked in both the papers so far presented at the 2-day ICC Scholars Forum now under way at Leiden Law School’s Hague campus.

My own initial thoughts – concerned not about the decision’s fact-based details but rather to its refashioning of the legal doctrine of command responsibility – have been published at EJIL: Talk!, the blog of the European Journal of International Law. My post, entitled “In Bemba and Beyond,” discusses command responsibility as “a time-honored doctrine with roots in military justice and international humanitarian law.” Placing this appeals judgment in the context of other decisions, the post warns:

“Together, such rulings suggest a turn away from the goal of assigning responsibility at high levels, and toward a jurisprudence which acknowledges (with regret) the commission of crimes, yet holds no cognizable legal person responsible.”

Full post here.


LOS ANGELES – On this International Holocaust Remembrance Day, I am honored to be spending this month at the USC Shoah Foundation, reviewing testimonies of persons who did their part to set right one of history’s terrible wrongs.

Seventy-three years ago today, Soviet troops liberated Auschwitz-Birkenau, the infamous Nazi concentration camp located about 45 miles west of Kraków, Poland. Liberations of other camps by other Allied forces soon followed; among them, the U.S. liberation of Buchenwald on April 11, 1945, and the British liberation of Bergen-Belsen 4 days later.

Sixty years later, a 2005 U.N. General Assembly resolution set this date aside for commemoration of World War II atrocities (image credit); to quote the resolution, of

“… the Holocaust, which resulted in the murder of one third of the Jewish people, along with countless members of other minorities …”

The resolution further:

  • honored “the courage and dedication shown by the soldiers who liberated the concentration camps”;
  • rejected “any denial of the Holocaust as an historical event”;
  • envisaged the Holocaust as “a warning to all people of the dangers of hatred, bigotry, racism and prejudice”;
  • denounced “all manifestations of religious intolerance, incitement, harassment or violence against persons or communities based on ethnic origin or religious belief, wherever they occur”; and
  • encouraged initiatives designed to “inculcate future generations with the lessons of the Holocaust in order to help to prevent future acts of genocide.”

Among the many such initiatives are memorial centers and foundations throughout the world – 2 of which have helped me in my own research into the roles that women played during postwar international criminal trials at Nuremberg.

In December, the Holocaust Memorial and Tolerance Center of Nassau County, located in Glen Cove, New York, opened its archives to me. Special thanks to Helen  Turner, archivist and Director of Youth Education, for her assistance.

This month, as the inaugural Breslauer, Rutman and Anderson Research Fellow, I am in residence at the University of Southern California, examining documents in USC Shoah Foundation’s Visual History Archive. It has been a fruitful and moving scholarly experience, and I look forward to sharing my research at a public lecture on campus at 4 p.m. this Tuesday, Jan. 30, video available here (as I was honored to do last week at UCLA Law’s Promise Institute for Human Rights; video here). Special thanks to all at the foundation’s Center for Advanced Research – Wolf Gruner, Martha Stroud, Badema Pitic, Isabella Evalynn Lloyd-Damnjanovic, and Marika Stanford-Moore – and to the donors who endowed the research fellowship. (Fellowship info here.)

As reflected in the 2005 General Assembly resolution, the work of such institutions helps to entrench – and to prevent backsliding from – states’ promises to ensure and respect human rights and dignity norms, set out in instruments like the 1945 Charter of the United Nations, the 1948 Convention on the Prevention and Punishment of Genocide, the 1948 Universal Declaration of Human Rights, and the 1966 International Covenant on Civil and Political Rights. To this list I would add the many documents establishing international criminal fora to prosecute persons charge with violating such norms – from  the Nuremberg-era tribunals through to today’s International Criminal Court.