international humanitarian law

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.

YPRES, Belgium – Beautiful vistas and bright sunlight cannot blind the visitor to the pain of this place.

This place is Flanders Fields, the name given to the part of west Belgium, close to the French border, that saw intense battles and horrendous casualties during World War I. This town – Ypres in French and Ieper in Flemish, but called “Wipers” by British WWI soldiers – played a central role. So too nearby Passchendaele/Passendale. Both towns were leveled, and like many in the region, were rebuilt in the old manner after the war ended.

During the war, upwards of half a million persons died in this area alone.

Our visit to Flanders Fields occurred on the 4th of July. Memories linger, and were sparked again by today’s commemoration of the 100th anniversary of the 1st large-scale use, in Ypres, of chemical weapons; mustard gas, to be precise. It was the 3d compound to be attempted, after chlorine and phosgene proved less reliable as lethal weapons, according to our tour guide, Raoul Saracen, a retired history teacher. Initial efforts to fight back against chemicals also were crude: before the development and widespread distribution of gas masks, Canadian troops resorted to breathing through kerchiefs soaked in ammonia-rich urine.

The cruelty of chemical warfare did not stop its use. Recording other places where chemicals have been used was a signpost in Langemark, the cemetery where German soldiers (including several with whom I share a surname) are buried. Tokyo, Japan, Halabja, Iraq, and Ghouta, Syria, receive mention, though more recent gassing sites in that last country have yet to be added.

The thousands of headstones in the many Flanders Fields cemeteries of course give pause. So too the cramped trenches, still on display at Sanctuary Wood Museum.

Yet it was a different site that stole my breath – the “dressing station,” a kind of field hospital, at Essex Farm Cemetery. The station’s cement-bunker cells were small, dark, and saddening, a truly concrete reminder of the scourge of war.

 

Children have become the unwilling emblems of armed conflict and extreme violence.

Searing images have surfaced in news stories, aid workers’ alerts, and rights groups’ dispatches: a 5 year old pulled from Aleppo rubble, orphans at a Goma children’s center, a young Colombian woman struggling to readjust after years as a child soldier, and, face down on a Turkish beach, a drowned 3-year-old refugee. Images of this nature were shown yesterday at the International Criminal Court, during the opening statement in Ongwen, with Prosecutor Fatou Bensouda herself warning “that some of these images are extremely disturbing.”

There is no better time than now to press for strategies both to combat such harms and to bring the persons responsible to justice. Presenting an important step toward those goals is the Policy on Children of the International Criminal Court Office of the Prosecutor.

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Prosecutor Bensouda launched the Policy on Children at an event during last month’s meeting of the ICC Assembly of States Parties. Bensouda quoted from the U.N. expert Graça Machel’s pathbreaking 1996 report on children and armed conflict, then commented:

“[I]t is indeed unconscionable that we so clearly and consistently see children’s rights attacked and that we fail to defend them.
“It is unforgivable that children are assaulted, violated, murdered and yet our conscience is not revolted nor our sense of dignity challenged. This represents a fundamental crisis of our civilisation and a failure of our humanity.
“By adopting the Policy on Children, which we launch today, we at the Office of the Prosecutor seek to ensure that children suffering the gravest injustices are not ignored. That through the vector of the law, we do what we can to protect and advance the rights of children within the framework of the Rome Statute.”

Leading the event was journalist Zeinab Badawi. Among the many others who offered live or video interventions were: Mamadou Ismaël Konaté, Mali’s Minister of Justice and Human Rights of the Republic of Mali; Zeid Ra’ad Al Hussein, U.N. High Commissioner for Human Rights; Leila Zerrougui, Special Representative of the U.N. Secretary-General for Children and Armed Conflict; Angelina Jolie, Special Envoy of the U.N. High Commissioner for Refugees; Nobel Peace Prizewinner Leymah Gbowee; Lieutenant General Roméo-Dallaire, Founder of the Roméo Dallaire Child Soldiers Initiative (see also IntLawGrrls post by Kirsten Stefanik); Marc Dullaert, Founder of KidsRights and the Netherlands’ former Children’s Ombudsman; and Coumba Gawlo, U.N. Development Programme Goodwill Ambassador and National Goodwill Ambassador for the U.N. High Commissioner for Refugees.

screen2I am honored also to have offered brief remarks – and am especially honored to have assisted in the preparation of this Policy in my capacity as the Prosecutor’s Special Adviser on Children in & affected by Armed Conflict, working alongside a dedicated Office of the Prosecutor team led by Shamila Batohi, Gloria Atiba Davies, and Yayoi Yamaguchi. Preparation included experts’ gatherings at the University of Georgia School of Law Dean Rusk International Law Center, at Leiden Law School, and at the ICC itself, as well as consultations around the globe with young persons who had endured armed conflict. (Legal research produced by my students, in seminars on Children & International Law and through the work of the Georgia Law Project on Armed Conflict & Children, also was invaluable.)

The result is a Policy on Children spanning 47 pages, published simultaneously in Arabic, English, French, Spanish, and Swahili. Identifying children as persons under eighteen (paragraph 16), it covers a gamut of issues related to children and the work of the Prosecutor; for example, general policy, regulatory framework, and engagement with children at all stages of the proceedings. Among many other landmarks, the Policy:

► Embraces a child-sensitive approach grounded in the 1989 Convention on the Rights of the Child, a treaty ratified by every U.N. member state save one: the United States, which is also an ICC nonparty state. (My remarks happily noted that my other state of citizenship, the Republic of Ireland, is a state party to both the Child Rights Convention and the ICC’s Rome Statute.) Paragraph 22 of the Policy on Children thus states:

“In light of the foregoing, the Office will adopt a child-sensitive approach in all aspects of its work involving children. This approach appreciates the child as an individual person and recognises that, in a given context, a child may be vulnerable, capable, or both. The child-sensitive approach requires staff to take into account these vulnerabilities and capabilities. This approach is based on respect for children’s rights and is guided by the general principles of the 1989 Convention on the Rights of the Child: non-discrimination; the best interests of the child; the right to life, survival and development; and the right to express one’s views and have them considered.”

► Views children, like all human beings, as multi-faceted individuals and, simultaneously, as members of multi-generational communities. (See, for example, paragraph 100.) Paragraph 25 states:

“Children, by the very fact of their youth, are frequently more vulnerable than other persons; at certain ages and in certain circumstances, they are dependent on others. Notwithstanding any vulnerability and dependence, children possess and are continuously developing their own capacities – capacities to act, to choose and to participate in activities and decisions that affect them. The Office will remain mindful, in all aspects of its work, of the evolving capacities of the child.”

► Acknowledges in paragraph 17 “that most crimes under the Statute affect children in various ways, and that at times they are specifically targeted” – and then pledges that “the Office will, in order to capture the full extent of the harm suffered, seek to highlight the multi-faceted impact on children, at all stages of its work.” The regulatory framework thus enumerates a range of crimes against and affecting children:

  • recruitment and use by armed forces and armed groups of children under fifteen as war crimes (paragraphs 39-43);
  • forcible transfer of children and prevention of birth as acts of genocide (paragraphs 44-46);
  • trafficking of children as a form of enslavement constituting a crime against humanity (paragraphs 47-48);
  • attacks on buildings dedicated to education and health care as war crimes (paragraph 49);
  • torture and related war crimes and crimes against humanity (paragraph 50);
  • persecution as a crime against humanity (paragraph 50); and
  • sexual and gender-based violence as war crimes and crimes against humanity (paragraph 52).

► Details the Office’s plan for applying the child-sensitive approach, with respect both to all stages of proceedings, including preliminary examinations, investigations, and prosecutions, and to cooperation and external relations, institutional development, and implementation.

Even as cases involving crimes against and affecting children, like Ongwen, go forward, the Office is working on implementation of its new Policy on Children. The implementation phase will include developing versions of the Policy accessible to children. I’m looking forward to the opportunity to contribute this phase – and to hearing others’ views on the Policy.

logo-1People who’ve actually experienced war place greater value on regulating warfare than those who haven’t.

That appears to be one thought-provoking takeaway from People on War: Perspectives from 16 Countries, a report that the International Committee of the Red Cross released this morning.

More than 17,000 persons – in Afghanistan, China, Colombia, France, Iraq, Israel, Nigeria, Palestine, Russia, South Sudan, Switzerland, Syria (that is, Syrians in Lebanon), Ukraine, the United Kingdom, the United States, and Yemen – were surveyed between June and September countries2016, “through online, face-to-face and computer-assisted telephone interviews.”

Time and again, persons in conflict-ridden countries showed more support for international humanitarian law:

► Of them, 84% agreed that it was wrong, and not “just part of war,” to “attac[k] religious and historical monuments in order to weaken the enemy” – compared with 72% in other states.

► And 73% in conflict states agreed that it was wrong, and not “just part of war,” to injure or kill humanitarian aid workers delivering aid in conflict zones – compared with 59% in other states.

Also notable were the variation in views on torture:

► Fully 100% in Yemen said torture is wrong and not “part of war.” Percentages dropped from there. Fewer than half the persons interviewed in Israel and Palestine said “wrong”; respectively, 44% and 35%.

► As for the United States, 54% called torture “wrong.” But when the question shifted somewhat – to whether “a captured enemy combatant” can “be tortured to obtain important military information” – the percentage of persons in the United States calling that wrong dropped to 30%, the 3d lowest among countries surveyed.

The survey presented the ICRC with an opportunity to reiterate the existence and importance of laws intended to protect civilians, persons no longer engaging in combat, and persons whom conflict has put to flight. These are issues we explored in our September 23 Georgia Law-ICRC event, “Humanity’s Common Heritage: Conference on the 2016 ICRC Commentary on the 1st Geneva Convention” (posts). On the matter of torture, for example, the report states:

“Torture and all other forms of ill-treatment are absolutely prohibited by international treaty and customary law. This applies to every State and to all parties to armed conflicts. There are no exceptions, whatever the circumstances. Whole communities are impacted by the corrosive effects of torture on society, especially when it goes unpunished, generating hatred and triggering a cycle of violence. What’s more, research shows that torture does not work, as the ‘information’ that is obtained is generally not reliable.”

The full report is available here.

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Why IntLawGrrls?

The need for an online forum giving voice to women who work in international law and policy began to take shape 10 years ago this autumn.

An issue of the day was Guantánamo; specifically, what was the United States to do now that the U.S. Supreme Court, in a June 2006 decision in Hamdan v. Rumsfeld, had ruled President George W. Bush’s military commissions unconstitutional?

Many women had worked, spoken, or written on GTMO – not only in law review articles, but also in court pleadings. I was one of them, having published “Guantánamo” in the Columbia Journal of Transnational Law in 2004 and served in 2006 as principal author of the amicus brief in Hamdan filed jointly by the National Institute of Military Justice and the Bar Association of the District of Columbia.

And yet, when Congress convened post-Hamdan hearings, witness after witness was exclusively male. Worse still, the perspectives these men advanced by no means covered the spectrum – no surprise given that all of them had served in the Executive Branch of the U.S. government, and only one staked any claim to expertise in human rights law. Nothing approximating either a nongovernmental or feminist perspective surfaced in those sessions on Capitol Hill.

News accounts of such manels got me thinking about launching a blog.

Opinio Juris, founded in November 2004, had revealed an international law community rife with readers and contributors. But posts by women were few, as was then and remains today the case on digital platforms. I imagined that a blog open only to women might attract women – that women would see it as both an invitation and an obligation to contribute. Going pink would set a strong contrast with OJ‘s baby-blue image.

The name? “IntLaw” was easy, and for obvious reasons.

“Grrls” was obvious too. The spelling’s angry “grr” owes much to the circa-1990s Riot Grrrls; the concept, to the Guerrilla Girls, a group that since 1985 has been wreaking feminist havoc in the male-dominated art world. (Years later, we would recognize Pussy Riot, a band-turned-movement that, like Guerrilla Girls, remains active.)

dowomenhavetobenaked2005smallrgbAs the Guerrilla Girls’ website recalls:

“They assumed the names of dead women artists and wore gorilla masks in public, concealing their identities and focusing on the issues rather than their personalities.”

And so did IntLawGrrls. Well, not the gorilla masks (at least not in public). But in the infant months after our birth-day on March 3, 2007, each of us assumed the name of a foremother as our pseudonym, and posted in her honor. I was Gráinne Ni Mháille, or Grace O’Malley, the Irish pirate who also would be embraced by contributors Fionnuala Ní Aoláin and Gráinne de Búrca. A charter contributor, Beth Van Schaack, took the name of her distant relative, Eleanor Roosevelt. It will come as little surprise to learn that others followed suit in honoring ER, who remains our blog’s proto-foremother. Another early contributor, Jaya Ramji-Nogales, posted in the name of the 19th Century Indian queen Lakshmi Bai.

A half-dozen months and scores of contributors later, we ‘Grrls began posting in our own names, though we continued to name foremothers both in introductory posts and in an honor roll posted online. Kathleen A. “Kate” Doty, for example, thus paid homage to Queen Lili‘uokalani, the last monarch of Hawai‘i.

clearerwicl_posterOver time, Beth, Jaya, Kate, and I evolved into the editors of IntLawGrrls. Our collaboration included hosting a conference at Tillar House, the American Society of International Law headquarters, and publishing a special issue of the International Criminal Law Review, dedicated to Judge Patricia M. Wald, on “Women and International Criminal Law.” We worked together through December 2012, when the blog took a couple-months’ hiatus and then revived. It’s been wonderful to watch the replenishment of energy and contributors at this new URL, thanks to Cecilia Marcela Bailliet and many others.

Then as now – nearly 10 years, hundreds of contributors, and thousands of posts later – IntLawGrrls mentors new voices and fosters community among contributors at all stages of their careers. Our periodic group photos are evidence of that. (At top is our photo from last spring’s ASIL annual meeting, when IntLawGrrl Betsy Andersen, 2d from right in top row, earned the Prominent Woman in International Law Award.)

To celebrate our utterly unexpected achievement, we’re throwing a party.

georgiawill_logoBeth, Jaya, Kate, and I have reunited to organize IntLawGrrls! 10th Birthday Conference. We welcome all of our vast IntLawGrrls community to join us on Friday, March 3, 2017 – on the precise date of our 10th birthday – at my home institution, the Dean Rusk International Law Center, University of Georgia School of Law, Athens, Georgia USA, which is hosting as part of our Georgia WILL initiative.

Details and our call for papers are available at our conference website and in the item Jaya posted last week. Suffice it to say that we welcome proposals, in English, French, or Spanish, from all in our community. Topics may include any issue of international, comparative, foreign, or transnational law or policy. We especially welcome contributions from subfields traditionally dominated by men. Academics and practitioners, students and professors, advocates and policymakers alike are most welcome to submit.

We’re planning a plenary aimed at getting us through the next several years – title is “strategies to promote women’s participation in shaping international law and policy amid the global emergence of antiglobalism” – and we hope to organize a few more according to participants’ interests. We look forward to an opportunity to network, to meet old friends and make new ones, to celebrate our accomplishments and lay plans for greater achievements in the coming decade.

I thank all of you for your support of our efforts this last decade, and look forward to seeing many of you here in March.

‘Nuff said.

(Cross-posted from IntLawGrrls blog)

I’ve just posted at SSRN the chapter I published at the beginning of the year in The Cambridge Companion to International Criminal Law, edited by Professor William A. Schabas.

policyThe chapter, entitled “Children,” aims to look back at developments in the area since World War II, and then to cast a forward glance at the comprehensive approach now under way at the International Criminal Court – where, incidentally, the ICC Office of the Prosecutor Policy on Children will be launched on November 16, 2016. I was privileged to help with drafting in my capacity as Special Adviser to the Prosecutor on this issue. (prior posts) The date coincides with the start of the annual meeting of the ICC Assembly of States Parties.

Here’s the abstract for my article:

cambridgeThis chapter, which appears in The Cambridge Companion to International Criminal Law (William A. Schabas ed. 2016), discusses how international criminal law instruments and institutions address crimes against and affecting children. It contrasts the absence of express attention in the post-World War II era with the multiple provisions pertaining to children in the 1998 Statute of the International Criminal Court. The chapter examines key judgments in that court and in the Special Court for Sierra Leone, as well as the ICC’s current, comprehensive approach to the effects that crimes within its jurisdiction have on children. The chapter concludes with a discussion of challenges to the prevention and punishment of such international crimes.

SSRN e-journals where this abstract may be found (thanks to always-welcome assistance from TJ Striepe of Georgia Law’s Alexander Campbell King Law Library) include the University of Georgia School of Law Legal Studies Research Paper Series and the Dean Rusk International Law Center Research Paper Series.

(Cross-posted from Exchange of Notes)