Ireland

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.

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.

fatou

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.

eventWASHINGTON – Yesterday I had the honor of serving as Distinguished Discussant for the 16th Annual Grotius Lecture, a keynote event at the ongoing joint meeting of the American Society of International Law and the International Law Association. Delivering the lecture was NYU Global Law Professor Radhika Coomaraswamy, whose former posts include Special Representative of the U.N. Secretary-General on Children & Armed Conflict and U.N. Special Rapporteur on Violence against Women. (event video here) Her talk was entitled “Women and Children: The Cutting Edge of International Law.”

Below is a version of my remarks in response, prepared and delivered in my personal capacity. The final, fully footnoted article is set to appear in due course, along with that of Professor Coomaraswamy, in the American University International Law Review, thanks to the lecture’s cosponsor, American University Washington College of Law.

The Post-Postcolonial Woman or Child

“‘Let the child be excused by his age, the woman by her sex,’ says Seneca in the treatise in which he vents his anger upon anger.” So wrote the namesake of this lecture, Hugo Grotius, in his masterwork entitled The Law of War and Peace. With this 60862quotation, “Let the child be excused by his age, the woman by her sex,” Grotius traced to the writings of an ancient Roman philosopher the injunction against harming women and children in time of war. Grotius’ reiteration of Seneca’s words tacitly admitted that as late as 1625, armies still were violating the injunction. Sadly, the same is true 389 years later. Today neither women nor children are excused from wartime assaults, violence, and upheaval. In Syria alone, three years of conflict have left well over 100,000 persons dead, and forced another 2.5 million persons to flee their country. Women and children are included in those statistics. Conflicts elsewhere generate similarly grim numbers, as Professor Coomaraswamy indicated by her references to the Central African Republic, to the Democratic Republic of the Congo, and to her own homeland of Sri Lanka. Indeed, outrage at the persistent violation of laws protecting women and children undergirds the Grotius Lecture that we have just heard.

Commensurate with her distinguished career in international law academia, policy, and practice, Professor Coomaraswamy has presented a vast and intricate tapestry of global developments. It would be impossible for me to comment in full in the time allotted. Instead, I propose to pull five strands out of the fabric of her lecture and to weave them anew, as a means to invite the imagining of a possible future, that of “the post-postcolonial woman or child.”
My first strand addresses Professor Coomaraswamy’s statements of concern about postcolonial theorists prevalent in the global south. These scholars, she said,

‘reject the human rights framework as part of the ‘liberal’ ‘imperialist’ project especially when it comes to cultural practices. … [They] rejec[t] the dominance of the European Enlightenment and the sacredness of the power of reason.’

My response might raise hackles among some of those scholars, for it begins with this claim: We are all postcolonials now.

By way of example, both of my own countries of citizenship are postcolonial states. Read Full Article

seanross2Serendipity found my students and I rereading the unvarnished story of Philomena Lee this week, just before the Hollywood film Philomena competes in Sunday’s Academy Awards.

The film is lovely, warmed by on-screen chemistry between Judi Dench, who plays Lee, and Steve Coogan, who plays journalist Martin Sixsmith. Bits of humor between them smooth the sharp edges of Lee’s search for the child she’d given up for adoption many years earlier.

The real story is a bit more raw: “The Catholic church sold my child” reads the headline of a 2009 news article by Sixsmith, published when his book on Lee was released in England. The article recounts how a 1950s Irish family sent Lee, then 18, pregnant, and unmarried, to a Mother and Baby Home at a Tipperary nunnery. There she gave birth. There too she was compelled to put in three years’ labor, and, eventually, to give up the son she’d helped care for till he was a toddler. Sixsmith writes:

‘Early on in the search I realised that the Irish Catholic hierarchy had been engaged in what amounted to an illicit baby trade. From the end of the second world war until the 1970s, it considered the thousands of souls born in its care to be the church’s own property. With or without the agreement of their mothers, it sold them to the highest bidder. Every year, hundreds were shipped off to American couples who paid “donations” (in reality, fees) to the nuns. Few if any checks were made on the suitability of the adopting families – the only condition laid down by Archbishop McQuaid was that they should be practising Catholics.’

seanrossSilence enveloped the decades-long practice. Even International Child Law, the circa-2010 British text that we’re using in my Children & International Law seminar, makes no note of it: though these out-of-Ireland adoptions occurred just an island away, the book’s chapter speaks of 1950s intercountry adoption solely in the context of U.S. adoptions of children born in wartime Korea.

This may change, as Lee has helped found The Philomena Project, committed to push, in Ireland and in the United Kingdom, for legislation that would ease access to adoption information. (credit for undated photos, of the Mother and Baby Home where Lee was placed, courtesy of the Adoption Rights Alliance, which is working with the Project)

The Project calls for justice along the lines of the efforts begun in relation to another tragic Irish institution of the era, the Magdalene Laundries, the subject not only of a 2002 film, but also of a 2011 report by the U.N. Committee Against Torture. To date those efforts have resulted in an official state apology regarding the Magdalenes practices – though not yet the actual award of promised reparations, as a recent post in the Human Rights in Ireland blog detailed.

statueIn anticipation of the 100th anniversary of women’s formal entry into the British legal profession, two scholars invite others to join them in a Women’s Legal Landmarks Project.

This multiyear project aims to produce, via a series of workshops to be held in Britain and Ireland, 1,000-to-6,000-word essays on women’s achievements in the law. An excerpt from the call for interest produced by the organizers, Professor Rosemary Auchmuty, University of Reading School of Law, and Professor Erika Rackley, Durham Law School:

‘[T]his project aims to bring together interested feminist scholars to engage in the process of identifying and writing about key legal landmarks for women. These might be one or a series of cases, a statute or campaign, an individual, a monument or event. The landmark must be significant for feminists, even if it only had an impact on a group of women. Indeed, it may not have been positive at the time, yet turned out to be a catalyst for change. The landmark may be well-known or less familiar. We are focusing on legal landmarks in the UK and Ireland and hope to cover a broad range of substantive topics. Our goal is the production of a number of outputs celebrating women’s legal history, reaching both a scholarly and a general audience.

‘Possible landmarks could include: the Contagious Diseases Acts 1864-6; the statue of Emmeline Pankhurst in Victoria Tower Gardens; The Well of Loneliness trial; Williams & Glyn’s Bank v Boland [1981]; S41 of the Youth Justice and Criminal Evidence Act; the appointment of Lady Hale.’

Deadline for 200-word expressions of interest is this Friday, February 7. Details and full call for interest here. (h/t IntLawGrrl Máiréad Enright, University of Kent Law School Lecturer, via her Twitter feed; credit for circa-1930 photo of Pankhurst statue described in passage quoted)

Poetry lost its voice today. One of its more wondrous voices, that is, given the news of the death of Seamus Heaney today, 74 years after his birth in Ireland’s County Derry.

One best heard Heaney – the simple words and complex verse that earned him the 1995 Nobel Prize for Literature – when the poet delivered his poetry in his own voice. Listen here to his wonderful 2001 translation of Beowulf, the 10th-century epic poem. And see below Heaney’s rendering of his own work, the love poem Scaffolding:

Slán abhaile.

unicefBelow the surface of many U.S. stories about the plight of the world’s children, the careful reader sees a subtext – a suggestion that it is over there, and not here, that awful things happen to children. The careful reader knows this isn’t so, that, sadly, U.S. children suffer, too. Yet even the careful reader might be surprised at a new UNICEF report that gives the United States abysmal marks on children’s welfare.

As depicted in a table on page 2, Child well-being in rich countries: A comparative overview, released Wednesday by UNICEF’s Office of Research, ranked the United States 26th out of 29 industrialized countries evaluated. The United States joined Romania as the only countries placing in the bottom third on every metric: material well-being, health & safety; education; behaviors & risks; and housing & environment.  (Ireland was the only English-speaking country to place in the upper third of the list, which ranked the Netherlands 1st.)

The United States ranked dead last on obesity – nearly 30% of its children, close to 10 points higher than any other country – though it had the lowest rate of alcohol abuse. The United States had the 3d worst homicide rate for children, and was 1 of only 4 countries where child homicides exceeded 4 per 100,000. In other countries, that number is much lower, between 0 and 2.5.

The report singled out the United States’ low ranking as evidence that “there does not appear to be a strong relationship between per capita GDP and overall child well-being.” (p. 3) In other words: It is not how much wealth a country has, but on whose behalf a country chooses to allocate that wealth.