Syria

March 18, 1967. Afternoon. Secretary of State Dean Rusk conducts a briefing on Vietnam for state governors in the Fish Room of the White House.

At White House, with President Johnson in attendance, US Secretary of State Dean Rusk briefs US governors on the US-Vietnam War. The briefing took place March 18, 1967, not long before Rusk set up a “dissent channel” for State Department diplomats frustrated by US foreign policy. (photo credit)

In my current role as leader of the 38-year-old Dean Rusk International Law Center at the University of Georgia School of Law, I tend to take a close look at any reference to our Center’s namesake, Dean Rusk, who served as the only Secretary of State to Presidents John F. Kennedy and Lyndon B. Johnson.

And so it is with the US diplomatic topic du mois, the “dissent channel” at the Department of State.

This channel is much in the news these days, on account of a Page 1 New York Times story leaking a dissent-channel letter by 51 diplomats at State who want more use of force in Syria than President Barack Obama to date has authorized. (Worth-reading questions about the “leak” here.) And then there was yesterday’s Times story by Ellen Barry, about a dissent-channel “Blood Letter” that forestalled career advancement for the eponymous letter-writing diplomat.

Quite a surprise, amid all this, to read this explanation of the dissent channel, in a transcript of the June 17 Daily Press Briefing by a State Department spokesperson:

“This procedure, this vehicle has been in place since Secretary of State Dean Rusk was in office in 1971.”

Why a surprise? Because by 1971, Rusk was regaling Georgia Law students as the revered Sibley Professor of International Law.

At the briefing, an unnamed reporter took immediate issue with the spokesperson’s account:

QUESTION: And just – can we be clear about when it actually began? Because Rusk, I think, was gone by ’69 when the Nixon Administration came in. So I don’t think he was Secretary of State in 1971, but I could certainly be mistaken.

[ANSWER]: I think it was 1971 and —

QUESTION: Okay.

[ANSWER]: — my reading of the history said that Rusk had something to do with it. But I’m not going to quibble with you —

QUESTION: No, no.

[ANSWER]: — over the history of the program.

Uncharacteristic of these kind of transcripts, the spokesperson’s assertion is supported by a footnote [1]. It says only “William P. Rogers.” That’s the name of the man who became Secretary of State in 1969, after Rusk left government service for the last time. But a quick look at Rusk’s bio on the Department’s site would have confirmed the premise of the reporter’s question.

So what’s right, and wrong?

On the small point of timing, the spokesperson is wrong. But on the larger point of establishing a channel for dissent, unique among the world’s diplomatic services, the account is spot on. To quote a memorial published the year that Rusk died, in the Department’s own publication, Dispatch:

Dean Rusk left his mark not only on the nation and the world, but also on the Department of State as an institution. At a time of tremendous domestic social change, he encouraged minorities and women to enter the Foreign Service. He established the Dissent Channel and the Open Forum to give members of the Department alternative ways to make their foreign policy views known.

 

(Cross-posted from our Center’s Exchange of Notes blog)

davisetal

Alumna Tess Davis, 2d from left, met with Georgia Law 1Ls after her lecture; from left, Hannah Williams, Ava Goble & Karen Hays. Hannah will work on cultural heritage issues this summer through a Global Externship Overseas (GEO) at the Cambodia Ministry of Culture & Fine Arts, Department of Intangible Cultural Heritage.

“As long as there have been tombs, there have been tomb raiders.”

So began the terrific talk on trafficking that Tess Davis, Executive Director of the D.C.-based Antiquities Coalition, delivered to a rapt University of Georgia audience a few days ago.

Having conceded the point quoted at top, Davis stressed that today the problem is much different and much greater. On the list of lucrative transnational organized crime, she asserted, antiquities trafficking places 3d, right behind arms trafficking and drug trafficking.

The threat is not simply one of criminal behavior, she continued. Rather, Davis stressed that profits from antiquities trafficking – profits believed to be in the millions of dollars – provide revenue vital for the nonstate actor waging armed conflict in Syria and Iraq. That entity calls itself “Islamic State” and is often labeled “ISIS” or “ISIL” in the media; taking a lead from diplomats in France and, recently, the United States, Davis preferred “Daesh,” the group’s Arabic acronym, for the simple reason that “they hate to be called that.”

Initially trained as an archeologist, Davis began to focus on legal means to combat antiquities trafficking while still a student at Georgia Law. Since earning her J.D. in 2009, she’s been a leader at the Lawyers’ Committee for Cultural Heritage and in the American Society of International Law Cultural Heritage & the Arts Interest Group, a researcher at Scotland’s University of Glasgow, a member of Georgia Law’s Dean Rusk International Law Center Council, and, as the photo above demonstrates, a mentor to Georgia Law students and other young lawyers interested in working in the field. Her efforts to help repatriate antiquities stolen from Cambodia earned multiple mentions in The New York Times.

Her talk drew links between the looting of cultural heritage during and after the 1970s Khmer Rouge reign of terror and current looting in the Middle East today. In both instances, she said, “cultural cleansing” – in the contemporary case, the destruction and thievery of monuments sacred to moderate Muslims and others – precedes and parallels efforts to erase and subjugate the humans who venerate those monuments. It’s a state of affairs documented in her Coalition’s new report, “Culture Under Threat.”

“The world failed Cambodia,”

Davis said, then expressed optimism at growing political will to do something about the Middle East. She advocated enactment of S. 1887, the Protect and Preserve International Cultural Property Act now working its way through Congress. The legislation, whose cosponsors include a Georgia U.S. Senator, David Perdue, is urgent: Davis estimated that U.S. buyers represent 43% of the current demand for looted Syrian antiquities.

(Cross-posted from Exchange of Notes blog)

page-06-image-UNHCR_v5.1_MapWith a hat tip to Colum Lynch of Foreign Policy, here’s the transcribed passage from today’s press briefing colloquy at which the U.S. Department of State confirmed that the United States now supports a referral of the situation in Syria to the U.N. Security Council:

QUESTION: Are you considering supporting a – UN Security Council authorizing a investigation by the ICC into war crimes in Syria?

MS. PSAKI: Ali, for you, let me check and see with her office if there’s more to convey on that. I do have something for you, Elise. One moment.

We do – the United States supports the referral to the ICC set forth in the draft resolution under discussion. We’ve long said that those responsible for atrocities in Syria must be held accountable, and we’ve been working with our Security Council colleagues on a draft resolution toward this end. We will also continue to support efforts to gather evidence to hold accountable those responsible for atrocities in Syria.

Go ahead.

QUESTION: Can you —

QUESTION: What changed your mind? I mean, originally, you had some concerns about whether this was the right venue to pursue accountability for Syrians.

MS. PSAKI: Well, obviously, we’ve remained concerned, continue to be concerned about the atrocities that we’ve been seeing on the ground. I don’t have any specific incident to point you to, just the ongoing gathering of what we’re seeing on the ground.

Reports are that the draft referral resolution – a draft that cannot take effect unless Russia and China decide to withhold vetoes – contains the same caveats that have drawn criticism with respect to Darfur and Libya. See, e.g., critiques in my articles (page 9 here, page 40 here, and pages 4, 8 here ; see too my posts here and here), as well as posts that NYU Law Professor Ryan Goodman published today, here and here. Spurring the latter was Lynch’s Wednesday scoop.

(credit for U.N. High Commissioner for Refugees October 2013 map of child refugees from Syria conflict)

zaOfficials have taken a step toward making it easier for refugees of armed conflict to find refuge in the United States.

Accounts of the world’s too-many civil wars often include astronomical numbers of persons in flight: nearly half a million in Central African Republic, more than 2 million in Syria, and so on. Precious few such refugees have found safety in the United States – only 31 Syrians last year, though camps like Zaatari in Jordan (right) house hundreds of thousands. (photo credit)

This is due in part to 8 U.S.C. § 1182, which bars anyone deemed to have given material support to listed armed or terrorist groups. The list of such groups is extensive. So too the list of what U.S. officials have deemed acts of “material” support – by way of example, an act as unavoidable as “pay[ing] a toll or tax to a terror group to pass through opposition-occupied territory.” Some 3,000 persons already in the United States are said to fear ouster based on this bar, which has prevented untold others from entering the country.

But the list of proscribed acts was trimmed last Wednesday, when a joint notice was published in the Federal Register. The notice stated that the heads of the U.S. Departments of Homeland Security, Justice, and State had determined that the terms of Section 1182

‘bar certain aliens who do not pose a national security or public safety risk from admission to the United States and from obtaining immigration benefits or other status.’

Accordingly, the three Secretaries announced they would exercise their discretion to exempt from the statutory barrier persons “who provided limited material support to” a listed organization or one of its members. It defined “limited material support” as:

  • “certain routine commercial transactions or certain routine social transactions (i.e., in the satisfaction of certain well-established or verifiable family, social, or cultural obligations),”
  • “certain humanitarian assistance, or”
  • “substantial pressure that does not rise to the level of duress ….”

Among other caveats in the Secretaries’ Notice of determination, such acts must have been performed absent any intent to aid terrorist activity.

The notice is not explicit on the extent to which the new ease-up might apply to certain refugees mentioned on page 1 of this 2007 report; that is, children who, in time of civil war, were forced to provide an array of services to rebel or terrorist groups.

carter_church12jan14This time 2 weeks ago, my family, neighbors, and I were in Plains, Georgia, where former President Jimmy Carter taught us Sunday school. Age 89 and still active around the world, Carter does this every Sunday that he’s home in the southern Georgia town where he was born and has lived most of his life. According to the schedule, another group of congregants sits with him at his Maranatha Baptist Church even as I write this post.

Our mid-January visit began with a 3-1/2-hour Saturday drive across a rainy state, then a lovely overnight and elegant breakfast at a majestic, circa-1892 hotel in Americus. By 8:30 Sunday we’d driven 10 miles west, to Plains, and were waiting in line as visitor-friendly Secret Service agents checked our bags and ushered us into the simple church. There Miss Jan, a retired schoolteacher, delivered a wry primer on the history of Plains and the Carter family.

Right at 10 the Carters arrived. The former First Lady, Rosalynn (“It’s pronounced Rose-lun,” Miss Jan had told us), sat in a pew.  The man who’d served as U.S. President from 1977-1981 stood at front. He wore a striped shirt and grey jacket and sported a bolo tie with a turquoise pendant. Carter asked where everyone was from. Georgia, of course. But also Alabama, Connecticut, Illinois, Indiana, Massachusetts, Minnesota, and Washington, not to mention Canada, China, Ireland, and Palestine. At that last, Carter interjected,

‘We go there almost every year, and my heart goes out to all the Palestinian people.’

He talked at length about his 28th book, set to be released this March. The subject, he said, is

‘the horrible plight of women and girls around the world.’

As examples, he spoke of genital mutilation, enforced second-class status, lack of educational opportunities, child marriages, sex-selective abortions, female infanticide, and honor killings. Carter’s move to another topic was halted by one word from the audience: “Jimmy,” spoken with a distinct Plains accent. “Jimmy,” Rosalynn continued,

‘You left out what’s happening in our country.’

me_peanut12jan14The former President flashed the smile for which he’s famous – a smile once captured on campaign buttons, and the foremost feature of the statue at right, which stands along the road not far from the Maranatha church. Carter then elaborated on Western countries, citing the still-low percentages of women in positions of government and the prevalence of sexual assault on college campuses. He concluded his account of the global status of women with these words:

‘I think it’s the worst human rights abuse on earth right now, and I hope this book will bring attention to it.’

Carter then donned glasses and read the Bible passage for the week, an Old Testament account of the gratitude that Hannah, despite hard losses, showed to God. Carter mentioned his own loss that week, of “the best friend I had on earth, Robert Pastor.” Pastor, who died at age 66 from colon cancer, had, among other achievements, helped to secure the Senate’s 2/3 approval of the Panama Canal Treaty – “my hardest political battle,” Carter said. Just weeks earlier, the two had co-authored an op-ed suggesting how peace might be brought to Syria. Pastor, Carter told us, was

‘the wisest person on how to bring peace, on how to solve a complicated problem.’

Pastor’s legacy still in mind, Carter returned to Hannah’s story, urging us to give thanks, as Hannah did, for “another day of life,” for the “blessings of freedom,” for being “able to spread to people around us health and safety.”

The uplift and inspiration of his message lingered long after our journey home.

UntitledMembers of Congress last week heard a concise and valuable account of how the International Criminal Court could aid efforts to hold wrongdoers in Syria’s civil war accountable.

Use the court as “a ‘reference point’ for the national system,” Richard Dicker, Director of the International Justice Program for Human Rights Watch urged in Wednesday’s testimony before House subcommittees on Africa and the Middle East & North Africa. (Video/screenshot credit here; text of Dicker’s remarks here.) Dicker was among 5 men who testified at the hearing, entitled “Establishing a Syrian War Crimes Tribunal?”

To that question, Dicker answered “No.” He said:

‘[T]he solution most likely to provide justice is not a stand-alone ad hoc tribunal for Syria.’

He then listed “practical obstacles” learned from precedent examples like the International Criminal Tribunal for the former Yugoslavia and the Special Court for Sierra Leone. Even putting to one side the precarious security situation in still-at-war Syria, delay would be inevitable in devising a legal framework, finding and setting up facilities, recruiting personnel, and gaining state cooperation; indeed, Dicker contended that the time lag and expense likely would “be more costly than if a permanent institution is tasked with investigation and prosecution.”

The institution to which he pointed is the ICC – that is, an ICC given the needed resources to commit fully to constructing investigations that could deter further offenses, while preparing affected communities for meaningful accountability at national as well as international levels. (This resources issue is addressed in the 2012-2015 Strategic Plan just released by the ICC Office of the Prosecutor, and in prior posts on Syria and on the ICC.) Also essential, Dicker told the assembled U.S. Representatives, would be candid and open support of the United States:

‘[T]he US government should make clear its position on the ICC instead of demurring behind concerns that Russia and/or China would veto any Security Council resolution which aimed to refer the situation in Syria to the ICC. … There are now 64 countries supporting such a referral, including six Security Council members, so the administration would be smart to at least begin talking about how the court can play a constructive role.’

He pressed his audience to prod the Executive Branch:

‘[T]he administration’s overall justice strategy on Syria should take the ICC into account. Congress is well placed to press the administration on this point and I hope these subcommittees will consider doing so.’

p5Rather muted in the U.S. press is France’s recent call for “self-restraint” on its part and that of its veto-friendly partners in the P-5.

The P-5, of course, are the 5 countries with permanent membership on the U.N. Security Council. By U.N. Charter mandate, each of the 5 enjoys the right to veto a resolution authorizing intervention – even if the rest of the 15-member Council finds harm to international peace and security. As has been evident in the 2-plus years of Syria’s civil war, by exercising its veto a P-5 member can leave a matter run its course without international intervention no matter what the casualty count.

France has suggested a way out of this predicament. As stated in an op-ed that Foreign Minister Laurent Fabius published October 4 in Le Monde, in French, and in the International Herald-Tribune, in English, here’s the idea:

‘[T]he five permanent members of the Security Council – China, France, Russia, Britain and the United States – themselves could voluntarily regulate their right to exercise their veto. The Charter would not be amended and the change would be implemented through a mutual commitment from the permanent members. In concrete terms, if the Security Council were required to make a decision with regard to a mass crime, the permanent members would agree to suspend their right to veto.’

How to determine when the commitment is in play? It’s “simple,” Fabius wrote:

‘[A]t the request of at least 50 member states, the United Nations secretary general would be called upon to determine the nature of the crime. Once he had delivered his opinion, the code of conduct would immediately apply.’

Fabius recognized “that objections of all kinds can be made,” and sought to deflect some of them with this caveat:

‘[T]his code would exclude cases where the vital national interests of a permanent member of the Council were at stake.’

It is not a new idea. As pointed out in an October 3 lecture at Georgia Law by Lee A. Feinstein, the former U.S. Ambassador to Poland who’s teaching here this semester, a similar idea appeared as Principle 3(D) of The Responsibility to Protect, the 2001 Report of the Independent Commission on Intervention and State Sovereignty, which launched the responsibility to protect concept.

What is new is that the show of support comes from a P-5 state itself. Yet it must be mentioned that France has vetoed far fewer times than most of its peers on the P-5. And those peers likely will be far less enamored of France’s idea, as Mark Goldberg posted at UN Dispatch.

What could draw those peers toward France’s idea? Perhaps an understanding that a P-5 member’s “vital national interests” are “at stake” whenever a resolution implicates the member’s client state. But then adoption would be hollow, for such a proviso would sap the proposal of its strength.

(credit for September 2013 U.N. photo by Mark Garten of, from left, British Foreign Secretary William Hague, French Foreign Minister Laurent Fabius, Russian Foreign Minister Sergey Lavrov, U.N. Secretary-General Ban Ki-moon, U.S. Secretary of State John Kerry, and Chinese Foreign Minister Wang Yi)