post-WWII tribunals

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

At IntLawGrrls and elsewhere, colleagues and I have, in recent years, told the stories of  Women at Nuremberg. A 2011 article of mine profiled Cecelia Goetz, who, after becoming the 1st woman to give an opening statement at an international criminal trial, went on to become the United States’ 1st federal bankruptcy judge. American University’s Shana Tabak has published a 2-part series on Grace Kanode, who, in July 1946 in Tokyo, became the 1st woman to appear bdolefore an international criminal tribunal. (See here and here.) And Katherine B. Fite, the U.S. State Department lawyer who helped draft the Nuremberg Charter, is not only the subject of 2 publications (a 2010 article by St. John’s Law Professor John Q. Barrett and a 2012 article by me), but also the namesake of an annual lecture given at the International Humanitarian Law Dialogs.

Not all the postwar pioneers have yet been named, however, and so we have Baltimore attorney Marlene Trestman to thank for bringing another to the fore. She is Bessie Margolin (right). Born in 1909, Margolin’s mother died when she was 4, so that she and her sibling grew up as “half-orphans” in the New Orleans Jewish Orphans’ Home. Her 1930 graduation from Tulane Law School led to research and, in 1933, a doctorate from Yale Law. Soon Margolin found herself the 1st woman lawyer at the federal government’s newly created Tennessee Valley Authority. By 1939 she’d moved to the Wage and Hour Division of the Department of Labor, the beginning of a three-decades career that included argument of 28 Supreme Court cases, plaudits from top-ranking judges, and a slew of awards.  (credit for circa-1950s Department of Labor photo, courtesy of Marlene Trestman) Margolin died in 1996 without ever securing the federal judgeship for which she’d campaigned.

A sliver of that career included the months in 1946 and 1947 that she spent at Nuremberg, Germany. Even as the International Military Tribunal Trial of the Major Nazi War Criminals unfolded at the Palace of Justice, Margolin did the important work of devising the plan for the subsequent trials before the U.S. entity now known as the Nuremberg Military Tribunals. The article’s depiction of Margolin’s dual status, as a serious lawyer and as an oft-invited guest at parties, mirrors stories of Fite and others.

Author Trestman, who lived years later at the same New Orleans orphanage, published a brief account of Margolin’s life last year, in a Journal of Supreme Court History article entitled “Fair Labor: The Remarkable Life and Legal Career of Bessie Margolin.” She’s now at work on a book-length treatment, one that will enrich understanding of the contribution that Margolin and other women lawyers of the last half-century made, both away at Nuremberg and here at home.