After Senate committee’s Torture Report, U.S. must pursue 3 accountability pillars

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:

In passing: Hans-Peter Kaul, ICC judge, German diplomat, antiwar activist

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.

Norm-setting & Nuremberg: Pivotal in bioethics story of Henrietta Lacks

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.

In passing: Bill Caming, gentleman & former U.S. prosecutor at Nuremberg

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.

“Accountability & Arab Spring” @ 7th International Humanitarian Law Dialogs

“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.

In lovely Sicily, specialists discuss globalization & international criminal law

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

John Paul Stevens, Legal Historian

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.’