“Vietnam/War/Memory/Justice: A Conversation with Viet Thanh Nguyen,” Feb. 14, Georgia Law

nguyenGeorgia Law’s Dean Rusk International Law Center, for which I serve as director, will host a roundtable on the legacies of the U.S.-Vietnam War as part of next week’s visit here by Viet Thanh Nguyen, a University of Southern California professor whose first novel, The Sympathizer, won the 2016 Pulitzer Prize for Fiction.

nothingEntitled “Vietnam/War/Memory/Justice: A Conversation with Viet Thanh Nguyen,” our roundtable will take place from 4 to 5:30 p.m. this Tuesday, February 14, in the Larry Walker Room on the 4th floor of the law school’s Dean Rusk Hall.

The topic of the roundtable is drawn from Nguyen’s 2016 work, Nothing Ever Dies: Vietnam and the Memory of War, which itself was nominated for the 2016 National Book Award for Nonfiction. (Nguyen’s newest book, a short-story collection titled The Refugees, was published yesterday.) In Nothing Ever Dies, Nguyen writes:

“Memory, like war, is often asymmetrical.”

The same may be said of justice; in particular, of efforts to right the wrongs done during armed conflict and similar extreme violence. These issues of transitional justice, memory, and war will be explored in the roundtable, at which Nguyen will be joined by:

tiana-mTiana S. Mykkeltvedt, Georgia Law alumna, member of the Dean Rusk International Law Center Council, and partner at the Atlanta law firm Bondurant Mixson & Elmore, who was flown out of Vietnam as an orphan in April 1975 in what came to be known as Operation Babylift; and

amann► Yours truly, Diane Marie Amann, Associate Dean for International Programs & Strategic Initiatives and Emily & Ernest Woodruff Chair in International Law at Georgia Law, who also serves as the International Criminal Court Prosecutor’s Special Adviser on Children in & affected by Armed Conflict.

Roundtable space is limited, and registration, available here, is recommended. For more information, contact ruskintlaw@uga.edu.

Our Center is especially pleased to sponsor this event, given that our namesake, the late Dean Rusk, a Georgia Law professor, and served as U.S. Secretary of State during the first years of the Vietnam War. The Georgia Asian Pacific American Bar Association, the Vietnamese American Bar Association of Georgia, and Georgia Law’s Asian Law Students Association are cosponsoring the roundtable. It will be the last in a series of Global Georgia events hosted by other university units, most notably the Department of Comparative Literature and the Willson Center for Humanities and Arts:

► 4 p.m. Monday, February 13, in the university Chapel, Nguyen will deliver the 3d Annual Betty Jean Craige Lecture of the Department of Comparative Literature, entitled “Nothing Ever Dies: Ethical Memory and Radical Writing in The Sympathizer.” For information, contact Professor Peter D. O’Neill at pon@uga.edu.

► 6-7 p.m. Sunday, February 12, at Avid Bookshop, 493 Prince Avenue in downtown Athens, a book-signing of The Refugees.

(Cross-posted from Exchange of Notes)

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 Leiden, experts celebrate 25th anniversary of Children’s Convention

kinderLEIDEN – Children, or kinder, has been the watchword these days in this Dutch city, where Leiden University’s been hosting a whirlwind of activities to mark the 25th anniversary of the Convention on the Rights of the Child. A film festival, moot court competition,* art exhibit, and commemoration by Princess Beatrice were just some of the events.

I was honored to take part in “25 years CRC,” a 2-day conference that brought to Leiden hundreds of children’s rights experts, from Auckland to Zagreb and many places in between. Plenary presentations included Corinne Dettmeijer-Vermuelen‘s fascinating comparison of U.S. and Dutch laws against online sexual exploitation of children. Then scholars and practitioners met in early a dozen parallel sessions, where they tackled an array of topics.

The session I chaired featured: Claire Achmad‘s outline of her Ph.D. dissertation, a children’s rights approach to regulation of international commercial surrogacy; Mies Grijn‘s anthropological account of child marriage practices in a village in Java, Indonesia; and Emily Waller‘s discussion of children, sexual violence-related stigmatization, and reparations. A common thread in these talks was the difficulty of drafting, adapting, and enforcing laws meant to be applied in societies marked by changes and cultural variations.

In a session on children and armed conflict, Olga Jurasz explored the treatment of children in cases before the International Criminal Court. Aurélie Roche-Mair followed suit, with an emphasis on the interrelation between the Children’s Convention and the Rome Statute of the ICC. Concluding was Gloria Atiba-Davies, head of the Gender and Children Unit in the ICC Office of the Prosecutor. Together, their presentations underscored the legal and practical challenges to achievement of the goal of ending wartime crimes against children – a goal to which ICC Prosecutor Fatou Bensouda recommitted her office, in her October speech on “Children & International Criminal Justice,” and in a statement yesterday that marked the Convention’s anniversary. It’s a goal to be pursued as her office continues consultations with experts, in the course of developing its Policy Paper on Children.

* Congratulations to the Students of the Law Society of Ireland for winning 1st place at yesterday’s finals. And kudos to Leiden Professors Ton Liefaard and Julia Sloth-Nielsen for the vision and hard work that produced this amazing week.

In Beah novel, prosaic present & hoped-for radiance, for former child soldiers & others

radianceTimes of war are marked by yearnings for peace. The landmark 1863 Lieber Code regulating combat thus said, with reference to “nations and great governments”:

‘Peace is their normal condition; war is the exception. The ultimate object of all modern war is a renewed state of peace.’

But what “peace” means is a question that lingers after combatants put down their arms. This is a point that many thinkers have made (in a recent essay I referred to the positive v. negative peace and direct v. structural violence concepts of Martin Luther King, Jr. and John Galtung). And it is a point that Ishmael Beah makes, beautifully, in his just-published novel, Radiance of Tomorrow.

Beah is best known for A Long Way Gone, his 2008 memoir of child-soldiering during the 1990s civil war in his homeland, Sierra Leone. (Prior postscredit for January 2014 photo of Beah at Carter Presidential Library, Atlanta) Some child soldiers figure in the new novel, Radiance, as well. They are now veterans:

‘Children and young people came by themselves with no parents. In the beginning they came one at a time, then in pairs, followed by four, six, or more in a group. They had been at various orphanages and households that had tried to adopt them. Some had even been at centers to learn how to be “normal children” again, a phrase they detested, so they had left and become inhabitants of rough streets in cities and towns. They were more intelligent than their years and had experienced so much hardship that each day of their lives was equal to three or more years; this showed in their fierce eyes. You had to look closely to see residues of their childhood.’

beahLong after the fighting has ended, these youths and other persons of all ages return to the village of Imperi – a name that shares roots with “empire” – in “Lion Mountain,” the anglicized name for Sierra Leone. Together they try to rebuild.

But a  new force invades even as they endeavor to retie the bonds of what had been a traditional, agrarian society. It is the outside world, capitalism in the forming of a mining company. It extracts valuable minerals first from the surrounding area and eventually from the town itself. Schools and story-telling lose support as the town center fills with bars and brothels. The resting place of ancestors is dug up even as new casualties of hazardous work are buried.

The old ways will not survive. The hoped-for “radiant tomorrow” of the book’s title will occur in a new place – even in a new voice. In the novel Beah renders into English poetic phrases from his mother tongue, Mende. As he explained in the foreword:

‘For example, in Mende, you wouldn’t say “night came suddenly”; you would say “the sky rolled over and changed its sides.” Even single words are this way – the word for “ball” in Mende translates to a “nest of air” or a “vessel that carries air.”’

The technique works exceptionally well in the novel’s first part, which is rich in imagery: “the dark spots where fire had licked with its red tongue,” for example, and “the day that war came into her life.” It seems to wane as the novel unfolds, however. This erosion of prose-poetry may be intended to mimic the depletion of Imperi and its people.  The prosaic replacement may reflect the people’s new and different life – as Beah puts it in passages with which the novel begins and ends, their new story. Beah thus provides a thought-provoking answer to the post-conflict question of the meaning of peace.

From a Chinese perspective, a critique of recent international criminal courts

OC.indd“A Point to Meet: Justice and International Criminal Law,” just published by the Asian Journal of International Law, is worth a read, given that its author is Dr. Xue Hanqin, a longtime Chinese diplomat who since 2010 has served as a Judge on the International Court of Justice. (As posted, she and the 2 other women of the ICJ, Judges Joan E. Donoghue and Julia Sebutinde, will headline the American Society of International Law Women in International Law Interest Group luncheon on April 10.)

In the just-published article, based on a 2012 speech, Judge Xue (below right; prior posts) takes on what she calls a “resurgence of legal idealism, in opposition to realism and positivism” – a resurgence evidenced by the growth of international criminal tribunals in the last 2 decades. Toward the end she states:

xue‘Justice should be placed at the centre of international law development, although as with any other topic in the field, the issue of global justice equally involves the politics of international law.’

(Many have made this point, as did I in articles here and here.) The “politics” that Judge Xue’s essay identifies have regional emphases, positioned at some odds with international criminal justice:

► “Asian efforts in socieconomic development” (a phrasing that hearkens to the longstanding “Asian values” debate) are put forward as a “broader” “vision on global justice”; that is, broader than “global justice” defined only to include criminal accountability.

► An “African practice” of ending “bloody conflicts” by means of amnesty, rather than criminal accountability.

The issues are critical, and the references invite scrutiny:

► The former reference describes a vision prevalent not just in Asia, but pretty much anywhere transitional justice is discussed. The identification of this vision with a particular region thus intrigues.

► The latter reference likewise pretermits that the “practice” of amnesty prevailed not just in Africa, but rather worldwide, through to the late-20th-C. revival of international criminal justice mechanisms. Indeed, Article 6(5) of Additional Protocol II (1977) to the 1949 Geneva Conventions specifically contemplates amnesty. Exploration and critique of the history and reasons for movement away from that global practice would have enriched the discussion. The same is true for the essay’s treatment of the International Criminal Court and amnesty: A discussion (like that in this article by my former student, Gwen K. Young) of the potential to consider at least some amnesties, within the framework of the Rome Statute, would have been welcome.

At Georgia Law, Justice Stevens takes on Scarlett O’Hara view of Civil War aftermath

john-paul-stevens2Margaret Mitchell got the Reconstruction Era all wrong. So said Justice John Paul Stevens in an address to the University of Georgia School of Law, the highlight of today’s Georgia Law Review symposium. Stevens, who retired from the U.S. Supreme Court in 2010, at age 93, spoke here in Athens at the university’s Chapel, used during the Civil War as a hospital for wounded Confederate soldiers – and afterward, as quarters for “Federal occupation troops.”

Stevens recalled a day in December 1939 when, as a junior in college, he and his family of Chicagoans watched the newly released adaptation of Mitchell’s epic “Gone With the Wind” from the balcony of an Atlanta theater. It was, as is well known, a Civil War story told from the perspective of a petulant, pampered, proslavery heroine, Scarlett O’Hara (below). (photo credits here and here) Stevens said that when the movie screen depicted Atlanta ablaze as a result of Union General William T. Sherman’s onslaught, the emotion of the assembled Georgians was intense. He reported:

scarlett‘I was afraid even to whisper a comment lest my accent reveal the fact that Yankees were in the audience.’

Stevens used the anecdote to introduce “Originalism and History,” the theme of his address. Resuming a refutation of originalism he had launched in 1985, in  response to a speech by then-Attorney General Edwin Meese (as I wrote in a Northwestern University Law Review article last year), Stevens stressed that “history is at best an inexact field of study, particularly when applied by judges.” For this reason, “the doctrine of original intent may identify a floor that includes some of the rule’s coverage, but it is never a sufficient basis for defining the ceiling.”

Atlanta-born Margaret Mitchell‘s version of the Civil War and its aftermath – a version that “influenced the thinking of millions of readers” – evinced sympathy for the antebellum South and hostility toward Reconstruction, Stevens said. Mitchell called the Reconstruction Republicans who controlled Georgia immediately after the war “incompetent and corrupt.” Stevens offered contrary evidence: the Reconstructionist governor reviled by Mitchell was acquitted of such charges and went on to become one of Atlanta’s leading figures, while the gubernatorial opponent whom Mitchell extolled is now believed to have been a leader in the state’s Ku Klux Klan. Uncertainty regarding that allegation served to underscore Stevens’ concern respecting judicial overuse of history:

‘The fact that the Klan’s activities were shrouded in so much secrecy has not only prevented historians from positively confirming that identification, but also explains why ambiguity characterizes so many important historical events.’

Another such event was the 1876 Presidential contest between Rutherford B. Hayes and Samuel Tilden. As he had in an August essay that the New York Review of Books titled “The Court & the Right to Vote: A Dissent,” Stevens pointed to the post-election withdrawal from the South of federal troops as a pivotal moment in American history. That moment might not have occurred, or might be viewed quite differently, absent a “‘reign of terror'” that suppressed the Southern Republican electorate, white and black alike. (Stevens drew the quoted phrase from a dispatch reprinted by his former colleague, William H. Rehnquist, in Centennial Crisis (2005).)

Today’s talk then moved beyond the Reconstruction Era, encompassing jurisprudential topics as varied as the Constitution’s religion clauses, the incorporation doctrine, the desegregation decision in Brown v. Board of Education (1954), and political gerrymandering. Discussed was the 2d Amendment right announced not long ago by a majority of the Court, as well as a same-sex sexual harassment judgment written by Stevens’ longtime sparring partner, Justice Antonin Scalia. Each example was deployed to drive home Stevens’ central point, regarding what he calls the sovereign’s duty to govern impartially: History is relevant but not dispositive. No less important to a judge construing terms like “equal protection” and “due process of law” is the contemporary social meaning of those constitutional phrases.

Child soldiers, grown, unsettled

south_east_asiaThirteen years after a photograph made them an emblem of the underaged combatant, Luther and Johnny Htoo are back in the news.

In “Myanmar ‘God’s Army’ twins reunite, seek comrades,” an Associated Press story that The New York Times, among other media, reprinted, reporters Thanyarat Doksone and Grant Peck wrote of a recent reunion between the now-25-years-old twins’ late-September reunion in Thailand. (map credit) The article recounted that in 1997, when national troops entered an ethnic Karen village near the Myanmar-Thailand border, children joined in armed resistance, in what they called “God’s Army” – with the Htoos, then 9 or 10, in the lead. They fought for years, as AP photographer Apichart Weerawong captured in the iconic 1999 photo depicting a sad-eyed Johnny behind a cigar-puffing Luther.

Today, Johnny remains in a refugee camp in Thailand and dreams of immigrating to New Zealand, to be reunited with his mother and sister. To the reporters, he “looked weary and nervous,” while Luther, a divorced father who has lived in Sweden since 2009, “appeared almost chic in a traditional Karen blouse over jeans, one silver hoop earring on his left ear and two on his right.”

Luther’s comment on his past as a child soldier chills:

‘It’s not fun to fight anymore, now that I’m afraid to die.’