post-WWII tribunals

What an honor to present my work in progress, “Intersectional Sovereignties: Dr. Aline Chalufour, Woman at Nuremberg – and at Paris, Ottawa, and Dalat” last week in “Global History and International Law”, a months-long seminar under way online.

Organizer of this superb scholarly offering is Dr. Anne-Sophie Schoepfel of the Institut d’études politiques de Paris, better known as SciencesPo. Her affiliation struck me as serendipitous, given that the subject of my paper was a graduate of SciencesPo. Born in 1899, Chalufour was also the 6th woman ever to earn a Ph.D. in international law from the University of Paris. In 1945-1946, she was the only woman lawyer on the French team that joined U.S., British, and Soviet allies in prosecuting vanquished Nazi leaders at Nuremberg.

Chalufour is one of the women on whom I’m focusing in my book-length study of women’s roles at that first Nuremberg trial, before the International Military Tribunal. But the richness of her experiences inspired this separate article.

Among the other highlights in Chalufour’s 90-year life: practice before the Paris Bar; activism in national and international feminist groups; teaching at colonial schools in what’s now Vietnam; serving de Gaulle’s Fighting French as a propagandist in Canada; gathering evidence about war crimes from liberated ex-detainees; taking part as the only French prosecutor in Britain’s first trial on Ravensbrück, a Nazi concentration camp for women; and, starting a few years after Nuremberg, service as a national judge.

My paper considers these episodes in light of of 3 theorizations: 1st, the shared sovereignty of the post-World War periods; 2d, sovereignty dynamics in colonial and imperial sites; and 3d, sovereignties of the person, imagined and corporeal. The paper then examines interrelations among these 3.

Serving as my discussant at last Wednesday’s session was Dr. George Giannakopoulos of King’s College London and NYU London. Numerous other participants offered valuable comments.

This was the 5th session in the seminar, which is slated to run through June 24 and has attracted law and history scholars from Asia and Latin America as well as Europe and North America. Next up, at 3 pm EDT this Wednesday, May 20, are 2 papers within the umbrella theme “Imperial Origins of the World Order”; details here.

What’s more, in due course Dr. Schoepfel and her SciencesPo colleagues are posting edited podcasts of each session. (Update: My own presentation is available at the seminar website and on YouTube.)

Already available at the seminar’s website and its YouTube channel:

  • “Epistemic Communities in Exile: Coining ‘Crimes against Humanity’ at London, 1940-45” by Dr. Kerstin von Lingen of the University of Vienna, Austria and author of a new journal article on this subject, as well as ‘Crimes against Humanity’. Eine Ideengeschichte der Zivilisierung von Kriegsgewalt 1864-1945 (Paderborn 2018), a monograph soon to be available in English. Discussants were Dr. Barak Kushner of the University of Cambridge, England, and Dr. Sabina Ferhadbegović of Imre Kertész Kolleg Jena, Germany.
  • “Genocide in Historical Perspective. The Language of Trangression” by Dr. Dirk Moses, of the University of Sydney, Australia, and author of The Problems of Genocide. Permanent Security and the Language of Transgression (forthcoming Cambridge University Press). Discussant was Dr. Charles Maier of Harvard University.
  • “The Nuremberg Moment. International Trial, American Lawyers and the Racial Question” by Dr. Guillaume Mouralis of Centre Marc Bloch in Berlin, and author of Le Moment Nuremberg. Le procès international, les lawyers et la question raciale (Presses de Sciences Po 2019). Discussant was Dr. Elizabeth Borgwardt of Washington University in St. Louis.

The full list of seminar participants is here; full schedule and registration information, 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.

torturereportThis week has marked the 66th anniversaries of 2 watersheds: on Tuesday, the U.N. General Assembly’s adoption of the 1948 Convention for the Prevention and Punishment of the Crime of Genocide, and on Wednesday, the same assembly’s adoption of the 1948 Universal Declaration of Human Rights. Together, they form 2 essential pillars of post-World War II human rights and human security.

This week also marked the release, on Tuesday, of the 524-page executive summary of the Senate Select Committee on Intelligence Committee Study of the Central Intelligence Agency’s Detention and Interrogation Programa study that, in full, spans 6,000 pages.

I was honored by an invitation to contribute my thoughts on the release of this so-called Torture Report to The New York Times‘ online Room for Debate forum, and so on Tuesday published an op-ed entitled “Officials Must Be Held Responsible for Torture.” Joining me in this forum were Hina Shamsi of the American Civil Liberties Union, Danielle Pletka of the American Enterprise Institute, Georgetown Law Professor David Luban, and Texas Law Professor Robert Chesney.

My own op-ed referred to structures of accountability common in the international arena; that is, truth commissions or commissions of inquiry. In this context, I saw the committee report as a step toward establishment of an historical record, yet advocated the pursuit of two additional pillars of accountability: a comprehensive analysis of aimed at reforming laws and institutions that permitted torture to occur, and Department of Justice investigation of the matter, with prosecutions to follow as appropriate. With regard to the latter, I wrote:

‘And those prosecutions must occur in courts of the United States. If they do not, indictments of Americans by other countries, or by international tribunals, must be expected.’

As a consequence of that op-ed, yesterday I joined American University Law Professor Steve Vladeck and Security Studies Professor Sebastian Gorka of the National Defense University, on a live segment of the Al Jazeera English program “Inside Story,” hosted by Ray Suarez. No public link’s available; suffice it to say that the spirited discussion included my reiteration of the need for 3-pillar accountability, as indicated below:

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.

lacksThe Nuremberg Code made them do it. Or not do it, to be precise.

“They” were “three young Jewish doctors” who refused a superior’s instructions that, in the name of medical research, they should inject unknowing patients with cancer cells. As stated in The Immortal Life of Henrietta Lacks, the 2010 bestseller by Rebecca Skloot:

‘All three knew about the research Nazis had done on Jewish prisoners. They also knew about the famous Nuremberg Trials.’

Skloot proceeds with a brief account of one of the 12 Nuremberg Military Tribunal trials that followed the Trial of the Major War Criminals. In the Doctors Trial,  23 physicians – among them 1 woman – were prosecuted for conducting medical experiments on camp inmates without their consent. The tribunal’s judgment set forth a list of 10 principles that became known as the Nuremberg Code. First and foremost:

‘1. The voluntary consent of the human subject is absolutely essential.’

Although it appeared in a judgment in 1947, issued by a panel of American judges sitting in Nuremberg, as late as 1951, that injunction had not penetrated the medical establishment Stateside. That is the year that physicians in Baltimore took cells from Lacks, a 31-year-old woman who soon would die from cervical cancer. Those tissues, and others taken in the course of her autopsy, gave birth to a cell line that lives to this day – cells numbering in the billions, used for decades, worldwide, to aid research on a host of diseases and genetic disorders. Lacks’ contribution to science is inestimable. But as Skloot relates in her book, which I’ve just finished reading, it took place without full and informed consent of Lacks or her family.

Indeed, it appears the informed consent norm articulated at Nuremberg was not firm even as late as 1963. That’s when those 3 doctors mentioned at top wouldn’t go forward with the ordered injections. Their refusal began a painful but necessary process of informing the family, by then impoverished in both material and emotional sense of the word. It is heartening to learn that the work of international criminal lawyers gave rise to a norm that led to this revelation of the truth – and, one hopes, to more patient-respectful procedures in our own time.

camingOne of the last surviving Americans who prosecuted Nazi-era war criminals passed away a week ago today at his home in Summit, New Jersey. His name was H.W. William Caming. He went by “Bill.” But he was already well into his 80s when I first met him, and so to me the soft-spoken gentleman was always “Mr. Caming.”

We met at the International Humanitarian Law Dialogs in Chautauqua, New York, cosponsored by the Robert H. Jackson Center (which sent news of his passing). Caming attended that annual gathering of international prosecutors most years, always dapper in suit and tie – even when age had confined him to a wheelchair. (credit for 2011 photo at bottom of Caming, left, with fellow Nuremberg prosecutor Ben Ferencz)

He spoke with great pride of his work at Nuremberg, where he served on the prosecution team for 3 years. Top Prosecutor Telford Taylor hired Caming – who’d spent World War II trying cases with the Air Force Judge Advocate General corps in China, Burma, and India – in 1946. When I interviewed him at Chautauqua in 2010, he remembered:

‘I had just come home from China after 27 months away. I was home in Florida, on 30 days’ R&R. I received a call from General Taylor.  He was at the Pentagon.  I went down.  We had an interview.  The rest is history.’

Caming indeed made history, as a lead prosecutor in the Ministries Case, the trial of nearly a dozen men who’d served in the Foreign Office and other government departments. (credit for photo at top of Caming in trial) His was the only one of the 11 cases that followed the Trial of the Major War Criminals in which prosecutors secured convictions for crimes against peace, known today as the crime of aggression. (The case was also notable as the only one in which a woman served as lead attorney – Dr. Elisabeth Gombel, who secured a favorable plea bargain for the client who chose her, Ernst Bohle.)

Although a few of the Ministries defendants were sentenced to upwards of 20 years in prison, some sentences were much lower, and all defendants were released by 1958, on orders of the U.S. High Commissioner. As he had in “Bringing War Criminals to Justice at Nuremberg,” an essay he published in the Dialogs Proceedings, in his interview with me Caming attributed this turn of events to Cold War politics:

‘There was a changed political climate and the Cold War had erupted. There was a constant pressure to end the case just as quickly as possible. They wanted to use Germany as a bulwark against Communism sweeping over Europe.’

In this view, which some dispute, Caming echoed a book he recommended to me, Peter Maguire’s Law and War (2010).

caming_ferenczNot every day at Nuremberg was difficult, however. Among those who visited the trials was Rebecca West, the Briton who’d written a “quite good” account of the Balkans, Black Lamb and Grey Falcon (1941). “I more or less was her tour guide, mainly through the intricacies of the trials,” but also to a castle that had not been destroyed in Allied bombing and thus served as one of the area’s very few “tourist attractions.” I will remember Mr. Caming’s evident pleasure in recalling that visit, his gentle manner in talking with me, and his unfailing support for international criminal justice.

“The Long Hot Summer after the Arab Spring: Accountability and the Rule of Law” is the theme of this year’s International Humanitarian Law Dialogs, to be held August 25-27, 2013, at the Chautauqua Institution in upstate New York. This will be the 7th year that international prosecutors and other experts gather at Chautauqua’s lovely lakeside Athenaeum Hotel to take stock of developments in international criminal law. It’s also the 3d year in a row that IntLawGrrls blog will host a Karima-Bennounelecture in honor of Katherine B. Fite, the State Department lawyer who helped Chief U.S. Prosecutor Robert H. Jackson with the drafting of the London Charter and other duties in preparation for the 1st postwar trial at Nuremberg. (My own 2011 Fite Lecture, which describes Fite’s career, is here.)

Delighted to announce that this year’s Fite Lecturer will be California-Davis Law Professor Karima Bennoune (above). I’ll have the honor of introducing Karima, an IntLawGrrls contributor whose new book, Your Fatwa Does Not Apply Here: Untold Stories from the Fight Against Muslim Fundamentalism, will be released on Monday, August 26, the same day as her IHL Dialogs lecture. (It’s available for Amazon preorder now. IntLawGrrls posts by fatwaand about Karima are here; the op-ed she published last week in The New York Times is here.)

Karima’s lecture is just one of many special events planned for this year’s Dialogs. Other highlights:

► Reflections by current prosecutors, featuring Fatou Bensouda (below; photo credit) of the International Criminal Court, Serge Brammertz of the International Criminal Tribunal for the former Yugoslavia, Andrew T. Cayley of the Extraordinary Chambers in the Courts of Cambodia, Brenda J. Hollis of the Special Court for Sierra Leone, Hassan Jallow of the Mechanism for International Criminal Tribunals for Rwanda and the former Yugoslavia, and Ekkehard Withopf of the Special Tribunal for Lebanon. Former prosecutors set to attend the Dialogs include 2 from the Special Court for Sierra Leone: David Crane, organizer of the Dialogs, and ICC-Prosecutor-Fatou-Bensouda-file-photo-UN-Photo-Rick-BajornasStephen Rapp, since 2009 the Ambassador-at-Large and head of the Office of Global Justice, U.S. Department of State.

► Keynote address by Prince Zeid Ra’ad Zeid Al-Hussein, Jordan’s Permanent Representative to the United Nations and former President of the ICC Assembly of States Parties.

► Year in review by Washington and Lee Law Professor Mark Drumbl.

► Panel on legal and policy issues related to the Arab Spring, moderated by Washington University Law Professor Leila Nadya Sadat, as well  as porch sessions on multiple aspects of the topic.

More information is at the website of the Robert H. Jackson Center, a primary sponsor, here. Other cosponsors include the American Society of International Law and the U.S. Holocaust Memorial Museum.

duomoSIRACUSA – For the 13th year in a row, this 2,700-year-old Sicilian city is playing host to a Specialization Course in International Criminal Law for Young Penalists. A hundred practitioners and scholars from around the world are considering sessions on the theme of “The Future of International Criminal Law in the Era of Globalization.” It’s my honor to join more than 2 dozen colleagues as a faculty member.

Sessions in the initial days of this 10-day course have provoked much thought, many questions, from attendees and presenters alike. This morning and last began with a lecture from our host, M. Cherif Bassiouni, Emeritus Professor at Chicago’s DePaul Law and President of ISISC, the Siracusa-based Istituto Superiore Internazionale di Scienze Criminali/International Institute of Higher Studies in Criminal Sciences. He voiced concern for civilian victims of armed conflict,  and sounded concern that international criminal law may be too fragmented. With so many legal regimes and institutions at play, he said, what vans1is called a system of international criminal justice has troubling working in fact like a system. This in turn may weaken the normative core common to these enterprises. Exploring these issues yesterday were, as depicted above, Larissa van den Herik, Elies van Sliedregt, and Beth Van Schaack.

Today William A. Schabas and I offered our thoughts. Among many other points, Bill delved deeper into the character of our global society, citing Harvard Psychologist Steven Pinker’s 2011 book, The Better Angels of Our Nature: Why Violence Has Declined. Meanwhile, I highlighted some positive effects that the multiplicity of regimes and institutions may have. To name 2:

► As demonstrated in external responses to the United States’ 2002 establishment of an indefinite detention center at its military base at Guantánamo Bay, Cuba, the presence of many sites for adjudication or other challenge to a state’s practice may compel a state to adjust; in contrast, if there is only one such legal regime or institution, a state more easily may circumvent its strictures. (A notable aside: back in D.C., President Barack Obama is slated to talk about GTMO in a policy address this Thursday afternoon.)

► As demonstrated by the fits-and-starts history of international criminal justice, it seems unlikely that policymakers will design a perfect institution on the 1st try. Inspired by U.S. Supreme Court Justice Louis Brandeis’ description of experimentation within the “laboratory” of the subnational state as “one of the happy incidents of the federal system,” I observed that simultaneous operation of multiple institutions might make it easier for each institution to learn, and adjust, from the lessons of the others.

The sessions continued with a fascinating exploration of commissions of inquiry, with speakers including 3 experts who’ve served on such commissions, Christine Chinkin, Serge Brammertz, and Philippe Kirsch. Up tomorrow is a survey of tribunals other than the International Criminal Court. Then more as the week goes by…not to mention much opportunity to enjoy the beauty of this ancient city.sunset

In “John Paul Stevens, Originalist,” an article published last year in Northwestern University Law Review, I examined how Justice Stevens, during his 34-plus years on the U.S. Supreme Court, had treated the interpretive methodology known as originalism. I wrote of a 1985 speech in which Edwin Meese III, President Ronald Reagan’s Attorney General, “urged adoption of a single standard –  ‘a Jurisprudence of Original Intention’ that would obligate judges to be guided solely by what the Framers chiefshad meant when they selected the words of the Constitution.'” Justice Stevens pushed back in his own speech the same year and in a 1986 lecture, The Third Branch of Liberty. “Stevens,” I wrote, “identified ‘the probable intent of the Framers’ to give to ‘future generations of judges’ the power and duty to check majoritarian abuses of individual liberty.” After examining Stevens’ treatment of history in cases involving the 2d Amendment, my article quoted Stevens’ Five Chiefs: A Supreme Court Memoir 226 (2011):

‘Historical analysis is usually relevant and interesting, but it is only one of many guides to sound adjudication.’

Though Stevens left the bench in 2010, he scarcely may be called retired. He’s written the just-quoted memoir and several New York Review of Books essays, and given a host of speeches. The latest of these was delivered in Louisville, Kentucky, a couple weeks ago – just 2 days before Stevens celebrated his 93d birthday, to be exact. Entitled “Glittering Generalities and Historic Myths,” it illustrates the role that history continues to play in Stevens’ thinking about law. Stevens identified instances in which the Court contributed to the making and maintenance of myths, some of which, he said, “have a longer life expectancy than the truth.” Identification of each myth implied disapproval of the decisions that had relied on them.

► Thus incurring criticism was the Court’s recent 2d Amendment cases; in particular, the most recent, McDonald v. Chicago (2010).

As I described beginning on 757 of my “Originalist” article, McDonald marked the last case in which Stevens wrote. His solo opinion drew retort from his longtime sparring partner on matters of constitutional interpretation, Justice Antonin Scalia. Stevens’ Louisville speech challenged as myth 2 views of history that underlay the majority’s invalidation in McDonald, on federal constitutional grounds, of a local gun-control ordinance: 1st, the view that the Court got it wrong in Slaughter-House Cases (1873); and 2d, the view that the Court got it right in  United States v. Cruikshank (1875).

Justices were not wrong but right in upholding local health laws in Slaughter-House, Stevens wrote, though “unfortunately” they rested their decision on a little-used, and in his view not-useful, constitutional ground. They were not right but wrong, Stevens ColfaxMassacreadded, to set aside in Cruikshank 3 convictions for the April 13, 1873, killings of scores of African-American men in Colfax, Louisiana. (image credit) (As Stevens noted, Charles Lane depicted these events in The Day Freedom Died (2009).) The release of the defendants in Cruikshank enabled a “myth that they were heroes fighting for a noble cause,” Stevens wrote, not to mention a myth “that laws that failed to preserve white supremacy were ‘misrule.'” Stevens’ speech endorsed the lower court’s articulation of state action doctrine. In an expansive rendering that anticipated the next century’s human rights jurisprudence, that court, in United States v. Hall, 26 F. Cas. 79, 81 (C.C.S.D. Ala. 1871), had defined denial of equal protection as follows:

‘Denying includes inaction as well as action, and denying the equal protection of the laws includes the omission to protect, as well as the omission to pass laws for the protection of his fundamental rights, as well as the enactment of such laws.’

► Also drawing Stevens’ attention were 2 decisions dating from the World War II era – an era that, as I have written here and here, informed Stevens’ own jurisprudence in the aftermath of the terrorist attacks against U.S. targets on September 11, 2001.

quirinAddressed 1st was Ex parte Quirin (1942), in which the Court unanimously approved secret-tribunal convictions of 8 Germans who’d landed on U.S. soil with the aim of committing sabotage. Among the 8 was a man presumed a U.S. citizen, so that in post-9/11 legal discourse the judgment has been cited as authority that citizens may be treated as “enemy combatants” and thus deprived of a panoply of rights. Quirin mythology also includes, Stevens wrote, “the mythical inference that their apprehension was the product of superior intelligence work by the FBI.” (image credit) In fact, citing Jess Bravin’s Terror Courts (2013), Stevens noted that the FBI learned of the plot only when a conspirator turned himself in.

Discussed 2d was In re Yamashita (1946), in which a majority of the Court sustained an overseas U.S. military commission’s capital conviction of the general who, as Stevens wrote, “had assumed command of the Japanese forces in the Philippines shortly before the war ended.” Today thyamae decision is the taproot for the doctrine of command responsibility, by which superiors are held liable for failing to prevent their troops from committing atrocities. But it did not win the favor of Stevens, who clerked for a Yamashita dissenter, Justice Wiley B. Rutledge Jr., a couple years later. Stevens’ speech cited Yamashita’s Ghost: War Crimes, MacArthur’s Justice, and Command Accountability (2012), in which author Allan Ryan dispels “the myth that General Yamashita was a war criminal because he failed to prevent the troops under his command from committing unspeakably cruel atrocities.” In fact, Ryan’s book contends “not just that the General did not authorize any of the atrocities – but that he did not even know about them and probably could not have prevented them even if he had ….” (credit for photo of trial of Yamashita) The former Justice concluded:

‘If the prosecution’s theory of the case were applied to the American Army in the Viet Nam conflict, General Westmoreland would receive the death penalty for failing to prevent the My Lai atrocities.’

(What follows are the remarks I delivered earlier today at the annual meeting of the American Society of International Law in Washington. The footnoted version of this speech is available at SSRN here.)

asil_logoI am very honored, and most deeply humbled, by this Prominent Woman in International Law award. I am humbled when I look at the list of prior recipients. They include: Pat Wald and Mireille Delmas-Marty, two women whose lifework has inspired my own. Stateswomen like Pat Schroeder and Geraldine Ferraro. ASIL leaders like Lucy Reed and Edie Weiss. Another woman who serves as a Special Adviser to the International Criminal Court Prosecutor, Patti Sellers. And Carol Lee, a woman who, like me, once clerked for Justice John Paul Stevens. (Indeed, as of today Justice Stevens may add “feeder judge for PWIL award” to his long list of accomplishments.)

I am even more humbled when I think of all the amazing international law women who deserve this award. Let me name a very few: Our new ASIL President-Elect, Lori Damrosch (who is here with her mother, Jean Fisler, a WILIG stalwart), not to mention ASIL fearless leader Betsy Andersen. Joan Donoghue and her sisters on the International Court of Justice. The ICC Prosecutor whom I am honored to serve, Fatou Bensouda, as well as my sister Special Advisers, Leila Sadat and Brigid Inder. Stateswomen like Mary Robinson and Hillary Clinton. And still another woman whose lifework has inspired my own, Martha Minow.

(You know, I never had a sister, and my mother has been gone for more than a decade now. But I would like to give shout-out to the men in my life: my husband, Peter O’Neill, and our son, Tiernan O’Neill. Tiernan is in school today, so they had to stay at home, but they are here today in my heart.)

I am humbled, finally, to accept this award not only on my behalf, but also on behalf of my three co-editors, Kate Doty, Jaya Ramji-Nogales, and Beth Van Schaack, and, indeed, on behalf of the more than 300 women (plus a few men) who have contributed to IntLawGrrls. Those of you who are with us here today, please stand. Thank you. This award belongs to every one of you.

Even though we are all winners, our general dislike for cacophony demands that only one of us speak today. That honor falls to me, and given that this is a lunch talk, I have chosen a light and modest topic. Well, no, I’m afraid I have not. My title is, in fact, “International Law and the Future of Peace.” For this audience, it might more fittingly be called “Peace: A Feminist Project.”

As many of you know, IntLawGrrls often dedicated their contributions to transnational foremothers. Consistent with the assumption that we women are more nurturing than other humans, helena3contributors frequently chose to honor pacifist heroines. Many from this group of foremothers rode what is sometimes called the first wave of feminism – that period in the late nineteenth and early twentieth centuries when many women (plus a few men) campaigned for change. Members of this movement are best known for winning women the vote. That goal, however, was but one of several that animated them. Equally important to many of these feminists was pacifism. Theirs was an all-out quest to end war. One such campaigner was Jeannette Rankin (above). (photo credit) As a rare woman member of Congress, Rankin voted “No” on legislation by which the United States entered World War I – and twenty-three years later, World War II.

Another was Jane Addams (below), who lectured for peace and against war, and led the U.S.-based Women’s Peace Party. In 1915, Addams chaired the International Congress of Women at The Hague and became the founding President of the Women’s International League for Peace and Freedom, an organization that thrives to this day. For her efforts Addams eventually would receive the Nobel Peace Prjane-addams-3ize. (photo credit) It must be noted that despite her achievements, the American Society of International Law denied Addams’ application for membership. As chronicled in a 1974 AJIL article co-authored by Alona Evans, Addams was “invited, instead, to subscribe to the Journal ‘for the same amount as the annual dues ….’” In fact, no woman was admitted to membership until 1921, when the Constitution’s guarantee of women’s suffrage appears to have forced the Society’s hand.

It must also be noted that not every foremother was a woman of peace. Quite to the contrary. The pirate Gráinne Ní Mháille, or Grace O’Malley, was cited by me and by nearly every other Irish IntLawGrrl. Selected from Asia were Lakshmi Bai and Trưng Trắc; from Africa, Ndaté Yàlla; and from the Caribbean, Anacaona and Nanny of the Maroons. At times, each of these women resorted to combat as a means to keep her people free from conquest or exploitation.

That we IntLawGrrls chose to honor warriors and pacifists alike points to a central paradox of peace. In its purest sense, pacifism connotes opposition to violence. And surely, the human condition is advanced every time that a life-threatening attack is averted. But the absence of that sort of violence – the non-use of force, as we lawyers call it – is not, in and of itself, peace. Whenever a careful examination reveals an apparent absence of violence to be little more than a veneer that masks exploitation, there is no peace.

mlkIt is in recognition of this fact that the peacemaker who died forty-five years ago today, Dr. Martin Luther King, Jr. (left), made clear his preference not for “negative peace which is the absence of tension,” but rather for “positive peace which is the presence of justice.”  (photo credit) Similarly, a leading theorist of peace, the Norwegian sociologist Johan Galtung, distinguished attacks, which he called “direct violence,” from exploitation, which he called “structural violence.” Galtung insisted on attention to the latter as well as the former, “not only because exploitation may lead to direct violence,” but also, and perhaps most importantly, because exploitation “is violence in itself.” This fuller understanding of peace, this acknowledgment that exploitation is itself violence, poses a challenge, Galtung wrote. The challenge is to reduce direct violence – to promote the non-use of force – without simultaneously enabling exploitation. In short, there is a line to be drawn. And in our world, the task of drawing that line often falls to the shapers of international law.

We all know in broad outline the rules that govern the use of force. They appear in the foundational text of modern international law, the Charter of the United Nations. From 1945 onwards, U.N. member states promised to “settle their disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered,” and further to “refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state.” States reserved an “inherent right” of self-defense, but only “if an armed attack occurs, until the Security Council has taken measures necessary to maintain international peace and security.” We know too that at Nuremberg and in Tokyo, convicted leaders were hanged for committing aggressive war – called crimes against peace – and for the atrocities that ensued. Taken together, these developments signaled that no state would be permitted to launch an offensive attack, that none therefore would need to exercise self-defense, and that leaders who acted in violation would be punished. That legal framework ought to have put an end to war, or at least to war between states. It did not. Read Full Article