NGOs


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.

draftpolicyIt is my great honor to note today’s release for public comment of the draft Policy on Children of the International Criminal Court Office of the Prosecutor.

Since my December 2012 appointment as Prosecutor Fatou Bensouda’s Special Adviser on Children in and affected by Armed Conflict, I’ve had the privilege of helping to convene consultations and taking part in the construction of this draft Policy. As part of that process, as noted on page 11 of the draft, we at the Dean Rusk International Law Center, University of Georgia School of Law, were honored in October 2014 to host the Prosecutor, members of her staff, and nearly 2 dozen other experts from academic, nongovernmental groups, and intergovernmental organizations. Our “Children & International Criminal Justice” conference featured a morning public plenary and Prosecutor’s keynote (pictured below), followed by an afternoon of closed-door breakout sessions. (Proceedings from that event, to appear in our Georgia Journal of International & Comparative Law, are nearing publication.)

Addressed in the draft Policy, which spans 37 pages, are:

► Overarching concerns, such as the nature of a child and childhood, the experiences of children in armed conflict and other contexts within the jurisdiction of the ICC, and how the Rome Statute of the ICC and other documents treat crimes against and affecting children; and

► Practical concerns, such as how the Office of the Prosecutor engages with children, in all aspects of its work, including preliminary examination, investigation, charging, prosecution, sentencing, reparations, and external relations.

As stated in the press release accompanying today’s publication:

In highlighting the importance of the Policy, Prosecutor Bensouda stated: “when I assumed 8_events2the role of Prosecutor in June 2012, one of the principal goals I set for the Office was to ensure that we pay particular attention not only to ‘children with arms’, but also ‘children affected by arms.’ This Policy demonstrates our firm commitment to closing the impunity gap for crimes against or affecting children, and adopting a child-sensitive approach in all aspects of our work bearing in mind their rights and best interests. It is also our hope that the Policy, once adopted, will serve as a useful guide to national authorities in their efforts to address crimes against children.”

The Office welcomes public comment on the draft. Such comments should be e-mailed to OTPLegalAdvisorySection@icc-cpi.int, no later than Friday, August 5, 2016.

Following revisions based on the comments, the Office of the Prosecutor expects to publish the final Policy on Children in November of this year.

mendezAll who care about children and international law will want to register for “Torture of Children Deprived of Liberty: Avenues for Advocacy,” “a global online briefing” to be hosted at 12 noon Eastern Standard Time next Tuesday, May 5, by the Anti-Torture Initiative of the D.C.-based Center for Human Rights & Humanitarian Law, American University Washington College of Law.

Panelists will include:

Juan E. Méndez, American University law professor, U.N. Special Rapporteur on Torture, and author of the 2015 thematic report on children deprive of liberty, which will form the core of the discussion (credit for photo of Méndez delivering this report to the U.N. Human Rights Council last month)

Jo Becker, Advocacy Director, Children’s Rights Division, Human Rights Watch

Ian M. Kysel, Dash/Muse Fellow and Adjunct Professor of Law, Georgetown Law Human Rights Institute

► Dr. Benyam Dawit Mezmur, Vice Chairperson of the U.N. Committee on the Rights of the Child and of the African Committee on the Rights and Welfare of the Child, as well as  a law professor at the University of Western Cape in South Africa, and Addis Ababa University in Ethiopia

Registration and further information here.

Fatou Bensouda-ICC-043-bwshPleased to announce that “Children & International Justice,” an international experts’ conference, will be held Tuesday, October 28, here at my home institution, the University of Georgia School of Law in Athens. Delivering the keynote address will be Fatou Bensouda (left), Prosecutor of the International Criminal Court, whom I am honored to serve as Special Adviser on Children in and affected by Armed Conflict.

Joining us will be more than 2 dozen experts in children’s rights, international criminal law, and transitional justice, who will address a range of issues in a public morning session and in closed afternoon workshops. Experts will be drawn from academia and the practice; from international organizations like UNICEF and the Office of the Special Representative to the U.N. Secretary-General for Children & Armed Conflict; and from nongovernmental organizations like Human Rights Watch, the International Center for Transitional Justice, the International Committee of the Red Cross, No Peace Without Justice, Protect Education in Insecurity & Conflict, Save the Children, and The Carter Center. They will consider legal doctrines, field research, and policy options.

These discussions will assist advising in the ongoing process of development of the Office of the Prosecutor Policy Paper on Children.

The keynote address and the plenary presentations, along with student rapporteurs’ Chatham-House-Rules accounts of the breakout sessions, will be published in the Georgia Journal of International & Comparative Law.

Sponsors, in addition to the journal and the law school, are the law school’s Dean Rusk Center for International Law & Policy, the Georgia Law Project on Armed Conflict & Children, the African Studies Institute of the University of Georgia, for which I serve as an affiliated faculty member, the Planethood Foundation, and the American Society of International Law-Southeast.

The day’s schedule begins with a public plenary session from 9:15-11:15 a.m. in the law school’s Hatton Lovejoy Courtroom, as follows:

drumbmalone-48► 9:15 a.m. Welcomes will be followed by a panel on “Children & International Criminal Justice: An Overview,” featuring Professor Mark A. Drumbl (right), Washington & Lee University School of Law, on Children, Armed Violence and Transition: Challenges for International Law & Policy; Kerry L. Neal (middle right), Child Protection Specialist, Justice for Children, UNICEF, on Child Protection in Time of Armed Conflict; Professor Linda A. Malone (above left), College of William & Mary/Marshall-Wythe School of Law, on Interrelation of the Convention on the Rights of the Child and the Rome Statute of the International Criminal Court; Alec Wargo II (middle left), Program Officer, Office of the Special neal_kerrywargo_alecRepresentative to the U.N. Secretary-General for Children & Armed Conflict, on Securing Prevention and Accountability for the Six Grave Violations against Children; and Jo Becker (bottom right), Advocacy Director, Children’s Rights Division, Human Rights Watch, on Civil Society’s Role with Respect to Children in Armed Conflict. Moderating will be Jo BeckerjallohProfessor Charles C. Jalloh (left), Florida International University School of Law.

► 11:30 a.m. Following introduction by Georgia Law Dean Rebecca H. White, Prosecutor Bensouda will deliver the keynote address.

► The afternoon will feature workshops sessions open only to expert invitees and moderated by my Georgia Law colleagues Harlan G. Cohen and Andrea L. Dennis, as well as me. Topics to be discussed include:

►► Regulatory Framework (Child-specific and child-related crimes, such as recruitment and use of children, sexual violence / trafficking, education, attacks on hospitals / denial of humanitarian access; legal instruments / jurisprudence other than rome statute; children’s rights and human rights law; humanitarian law; law of peace / weapons control treaties; gravity: charging and sentencing)

►► Witnesses, Testimony, and Witness Protection (Identifying and preparing child witnesses, in general, and with relation to specific offenses like sexual violence, against girls and boys; living conditions of children in conflict/postconflict zones; support and witness protection issues; enhancing child witness reliability / challenging of factfinding reparations)

►► Global Child (Children’s vulnerability/victimhood/agency; developmental factors / difficulty of drawing age line; children’s convention: rights and best interests; child protection and child participation: issues of consent; children in militias / conflict zones: roles and experiences; child-friendly dissemination and education)

Experts who will participate in these workshops: Gloria Atiba Davies, Head, Gender and Children Unit, ICC Office of the Prosecutor; Véronique Aubert, Senior Conflict & Humanitarian Policy and Research Adviser, Save the Children, London, England; Hrair Balian, Director of Conflict Resolution Program, Carter Center, Atlanta; Shamila Batohi, Senior Legal Adviser and Head, Legal Advisory Section, ICC Office of the Prosecutor; Dr. Tamora A. Callands, Assistant Research Scientist, Department of Health Promotion and Behavior, College of Public Health, University of Georgia; Rachelle Carnesale, Chief Assistant District Attorney, Cherokee County, Canton, Georgia, former head of the Georgia Division of Family & Children Picture1Services, and former Acting Director and Deputy Director of the Georgia Office of the Child Advocate; Dr. Nathan B. Hansen, Associate Professor and Department Head, Department of Health Promotion and Behavior, College of Public Health, University of Georgia; member of Legal Advisory staff, International Committee of the Red Cross, Washington, D.C.; Francesca Jannotti, Political Officer, Office of the Special Representative to the U.N. Secretary-General for Children & Armed Conflict, New York; Virginie Ladisch, Head, Children & Youth Program, International Center for Transitional Justice, New York; Sharanjeet Parmar, independent consultant on child-crime accountability, Kinshasa, Democratic Republic of the Congo; Mark Richmond, Director, Protect Education in Insecurity & Conflict, Education Above All Foundation, Doha, Qatar, and formerly a Director in UNESCO’s senior education team in Paris; Karin Ryan, Senior Adviser on Human Rights, Carter Center, Atlanta; Manoj Sachdeva, Trial Attorney, ICC Office of the Prosecutor; L. Alison A. Smith, International Criminal Justice Director/Legal Counsel, No Peace Without Justice, Brussels, Belgium; Professor Jonathan Todres, Georgia State University School of Law, Atlanta; and Yayoi Yamaguchi, Associate Legal Advisor, Legal Advisory Section, ICC Office of the Prosecutor.

Details here; registration here.

nwc_leftCan the laws of war constrain robot warriors? Is international humanitarian law adaptable to the use of weapons that possess artificial intelligence? To what extent can such weapon systems determine who is, and who is not, a combatant? To what extent must humans control the decision to kill the enemy?

These questions and others fostered a fascinating discussion at “Legal Implications of Autonomous Weapon Systems,” a workshop at the Naval War College in Newport, Rhode Island, this past Thursday and Friday. We four dozen or so attendees were drawn from the armed forces of the United States, Australia, Britain, Canada, and Israel, from the International Committee of the Red Cross, and from a global array of academic institutions.

As one who reserves just a couple days for the topic in my Laws of War course, I came to the workshop with more questions than answers about the actual and potential uses in armed conflict of robots, the shorthand term I’ll use here for “autonomous weapons systems.” The military, characteristically, prefers an acronym: AWS.

The actual use of such weapons already is significant. Smart missiles called JDAMs deliver munitions to a target, while a WALL·E-looking machine called SWORDS has, as the U.S. Department of Defense wrote in 2004, “march[ed] into battle” alongside troops.

In fact, such machines tend not to be used in a fully independent manner (though with a little reprogramming, some could be). They are, we were told, semi-autonomous – humans are kept “in” or “on” the loop leading to choice of target and other decisions.

This mention of human supervision, like the WALL·E-on-the-march metaphor above, pointed to a pivotal workshop topic:

nwc_right►  Is it appropriate, as a matter of law or of ethics, to indulge in the human tendency to anthropomorphize these machines?

Apparently, some lab robots can recognize – or at least can mimic the act of recognizing – themselves in a mirror. Does this mean they are, or soon will be, sufficiently human-like to conduct operations wholly without oversight by actual humans? Might human-like robots evolve an ability to refuse programmed orders – orders that limited action to the boundaries of international humanitarian law? The answers to these questions, like many at the workshop, seemed to be “perhaps yes, perhaps no.”

At one end of the spectrum, this uncertainty has spurred a call for an outright ban. Emblematic is the headline of a notice about the November 2012 release of the Human Rights Watch report, Losing Humanity:

‘Ban ‘Killer Robots’ Before It’s Too Late: Fully Autonomous Weapons Would Increase Danger to Civilians’

At the other end of the spectrum, some would prefer to let the technology develop before the onset of any new legal regulation.

Many seem to fall in between. Acknowledged were some challenges; for instance:

► Does compliance with the precautions requirement of Article 57 of the Additional Protocol I (1977) to the four Geneva Conventions (1949) preclude the use of a fully autonomous weapon?

► Would the robotic commission of a war crime be susceptible to sanctions by global justice mechanisms like the International Criminal Court, and if not, what effective sanctions and deterrents would there be?

Persons falling in the vast middle of the regulatory spectrum harbored concerns about such questions, yet seemed to lean toward the view that if due care is taken, international humanitarian law can – and should – be applied. Documents discussed in this vein included the:

► U.S. Department of Defense Directive 3000.09, ¶ 4(a) (November 12, 2012), which states as “DoD policy” the following:

‘Autonomous and semi-autonomous weapons systems shall be designed to allow commanders and operators to exercise appropriate levels of human judgement over the use of force.’

heyns► April 9, 2013 report to the U.N. Human Rights Council by University of Pretoria Law Professor Christof Heyns, who’s served since 2010 as the Special Rapporteur on extrajudicial, summary or arbitrary executions. At ¶ 108 of his report, Heyns termed the 2012 Defense Directive as “imposing a form of moratorium” with respect to what he termed “lethal autonomous robotics,” or LARs. Heyns’ 2013 U.N. report (¶ 35) favored a broader scope for delay:

‘The present report … calls on States to impose national moratoria on certain activities related to LARs.’

A reprise of such issues likely will occur at the Meeting of Experts on Lethal Autonomous Weapons Systems set for May 13 to 16 in Geneva under the auspices of the 1980 Convention on Certain Conventional Weapons. Named in full the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects as amended on 21 December 2001, this treaty has 117 states parties, including the United States.

The Naval War College International Law Department workshop’s vital and timely discussion exposed many avenues for study – study sooner rather than later, so that the legal regulatory framework may be determined before fully autonomous robots are fully deployed.

arcsunShould nongovernmental organizations be friends of intergovernmental courts? Put another way, is there a role for the NGO amicus curiae in tribunal that states have set up to deal with international disputes?

These are questions that Western Ontario Law Professor Anna Dolidze explores these questions in her just-published, information-filled American Society of International Law Insight, “The Arctic Sunrise and NGOs in International Judicial Proceedings.”

Dolidze’s news hook is The “Arctic Sunrise” Case (Kingdom of the Netherlands v. Russian Federation), filed in late November with the Hamburg-based International Tribunal for the Law of the Sea. At issue was the seizure of Arctic Sunrise, Dutch-flagged ship owned by Greenpeace International, an NGO that, in its own words, “acts to change attitudes and behaviour, to protect and conserve the environment and to promote peace.” During a protest at the offshore oil rig Prirazlomnaya, Russia had seized the boat and detained its crew members on criminal charges. (credit for 2007 photo of the ship) They were not released till very recently.

While the matter was pending, Russia declined to appear before the law of the sea tribunal – though it did object to a Greenpeace petition to file an amicus brief due, Dolidze reports, “to the ‘non-governmental nature’ of the submitting organization.” The tribunal thus kept the brief out of the case file, even though its members and the parties were able to review the document. Dolidze’s Insight underscores the tension in this resolution, given Russia’s nonappearance, on the one hand, and the direct effect of the dispute on Greenpeace, on the other hand.

The Insight tracks other tribunals’ varied treatment of such petitions. Among the most restrictive is the International Court of Justice, another tribunal in which only states may litigate contentious cases; Dolidze cites ICJ Practice Direction XII, which handles amicus briefs much as ITLOS did in Arctic Sunrise. Among the most expansive is the Inter-American Court of Human Rights’ rule 41, which accepts such briefs within a specified timeline. Others – the European Court of Human Rights, the World Trade Organization dispute mechanisms, and the International Criminal Court – are in between. In sum, Dolidze writes:

‘Procedures allowing NGO amicus curiae briefs are currently more a norm than an exception in international judicial proceedings.’

Not all agree this is a good thing. Dolidze points to a 2007 article in which Melbourne Law Professor Robin Eckersley favored NGO participation for its “potential of creating a transnational space for dialogue.” But she also  quotes Arizona State Law Professor Daniel Bodansky’s 1999 caution that amicus litigation by nongovernmental organizations ought not to be conflated with public participation. Dolidze sees in the Greenpeace matter a timely opportunity to revive this debate.

icrcProfs looking to learn more about the laws regulating war are encouraged to take part in the annual Teaching International Humanitarian Law Workshop (prior posts here and here).

This year’s workshop will be held February 7-8, 2014, at Brigham Young University Law School in Provo, Utah, home institution of my colleague, Professor Eric Talbot Jensen. BYU joins the International Committee of the Red Cross in cosponsoring. Organizers write:

 The Workshop is targeted at law professors interested in teaching an IHL (otherwise known as the Law of Armed Conflict) course for the first time, integrating IHL modules into their current courses and/or rethinking their current teaching of this important subject. The Workshop provides an opportunity for law faculty to think creatively about teaching IHL, network with others, exchange ideas, and expand teaching of these topics.

Details and registration here.