transitional justice

LONDON – Building on yesterday’s post about the magical London conference launching Arcs of Global Justice: Essays in Honour of William A. Schabas (Margaret M. deGuzman and Diane Marie Amann eds.), today’s post profiles the book itself, which, thanks to excellent assistance from John Louth, Blake Ratcliff, and their staff, has just been published by Oxford University Press. (The hardback may be ordered via OUP or Amazon, and the book’s also available on Kindle.)

Very pleased to have coedited this volume with my colleague Meg. The concept, in our words:

Martin Luther King, Jr. once said ‘the arc of the moral universe is long, but it bends toward justice.’ Testing the optimism of that claim were the many fits and starts in the struggle for human rights that King helped to catalyze. The same is true of other events in the last half-century, from resistance to apartheid and genocide to equal and fair treatment in domestic criminal justice systems, to the formation of entities to prevent atrocities and to bring their perpetrators to justice. Within this display of myriad arcs may be found the many persons who helped shape this half-century of global justice-and prominent among them is William A. Schabas. His panoramic scholarship includes dozens of books and hundreds of articles, and he also has served as an influential policymaker, advocate, and mentor.

This work honours William A. Schabas and his career with essays by luminary scholars and jurists from Africa, Asia, Europe, and the Americas. The essays examine contemporary, historical, cultural, and theoretical aspects of the many arcs of global justice with which Professor Schabas has engaged, in fields including public international law, human rights, transitional justice, international criminal law, and capital punishment.

In all, the book includes 29 contributions by 35 academics, advocates, and jurists, as detailed in the table of contents below. Providing jacket-cover testimonials were Steven Kay QC, Philippe Sands QC, Professor and former Ambassador David Scheffer, and Judge Christine Van den Wyngaert. We hope that you’ll follow their recommendations and give these important, substantive essays a very good read.

Arcs of Global Justice:
Essays in Honour of William A. Schabas

Foreword by Diane Marie Amann and Margaret M. deGuzman, coeditors
Introduction: William Schabas: Portrait of a Scholar/Activist Extraordinaire by Roger S. Clark, Board of Governors Professor of Law, Rutgers University School of Law

Human Rights
Human Rights and International Criminal Justice in the Twenty First Century: The End of the Post-WWII Phase and the Beginning of an Uncertain New Era by M. Cherif Bassiouni (He died at age 79 in September, just weeks after he completed final changes on this essay; as posted, our conference included a memorial to him. At the time of his death, he was Emeritus Professor of Law, DePaul University College of Law; Honorary President, Siracusa Institute for Criminal Justice and Human Rights; and Honorary President, L’Association internationale de droit pénal.)
William Schabas, the Canadian Charter of Rights and Freedoms and International Human Rights Law by Justice Thomas A. Cromwell, Supreme Court of Canada, and Bruno Gélinas-Faucher, formerly a law clerk on that court and now a Cambridge PhD candidate
The International Convention on the Protection of All Persons from Enforced Disappearance, as a Victim-Oriented Treaty by Emmanuel Decaux, Professor Emeritus, Université Paris 2 (Panthéon-Assas), and former President, Committee on Enforced Disappearances
The Politics of Sectarianism and its Reflection in Questions of International Law & State Formation in The Middle East by Kathleen Cavanaugh, Senior Lecturer at the Irish Centre for Human Rights, National University of Ireland Galway, and  Joshua Castellino, Professor of Law & Dean of the School of Law, as well as the Business School, at Middlesex University, London

Capital Punishment
International Law and the Death Penalty: A Toothless Tiger, or a Meaningful Force for Change? by Sandra L. Babcock, Clinical Professor of Law at Cornell Law School and Faculty Director of the Cornell Center on the Death Penalty Worldwide
The UN Optional Protocol on the Abolition of the Death Penalty by Marc Bossuyt, Fellow at the Stellenbosch Institute for Advanced Study, Emeritus Professor of the University of Antwerp, Emeritus President of the Constitutional Court of Belgium, and former Chairman of the UN Commission on Human Rights
The Right to Life and the Progressive Abolition of the Death Penalty by Christof Heyns, formerly the UN Special Rapporteur on extrajudicial, summary or arbitrary executions from 2010 through 2016, and now a member of the UN Human Rights Committee and Professor of Human Rights Law at the University of Pretoria, Thomas Probert, Research Associate, Centre of Governance & Human Rights, University of Cambridge, and Tess Borden, Aryeh Neier Fellow at Human Rights Watch and the American Civil Liberties Union, and former researcher for the UN Special Rapporteur on extrajudicial, summary or arbitrary execution
Progress and Trend of the Reform of the Death Penalty in China by Zhao Bingzhi, Dean of the College for Criminal Law Science of Beijing Normal University, President of the Criminal Law Research Association of China, Vice-President of the International Association of Penal Law, and President of that association’s Chinese National Group

International Criminal Law
Criminal Law Philosophy in William Schabas’ Scholarship by Margaret M. deGuzman, Professor of Law at Temple University’s Beasley School of Law
Is the ICC Focusing too Much on Non-State Actors? by Frédéric Mégret, Associate Professor and Dawson Scholar, Faculty of Law, McGill University
The Principle of Legality at the Crossroads of Human Rights and International Criminal Law by Shane Darcy, Senior Lecturer at the Irish Centre for Human Rights, National University of Ireland Galway
Revisiting the Sources of Applicable Law Before the ICC by Alain Pellet, Emeritus Professor at the University of Paris Nanterre, former Chairperson of the UN International Law Commission, President of the French Society for International Law, Member of the Institut de droit international, as well as Counsel and Advocate before the International Court of Justice, the International Tribunal for the Law of the Sea, and other forums
The ICC as a Work in Progress, for a World in Process by Mireille Delmas-Marty, Member, Institut de France, and Professor Emerita, Collège de France de Paris
Legacy in International Criminal Justice by Carsten Stahn, Professor of International Criminal Law and Global Justice, Leiden University
Torture by Private Actors and ‘Gold Plating’ the Offence in National Law: An Exchange of Emails in Honour of William Schabas by Andrew Clapham, Professor of Public International Law at the Graduate Institute of International and Development Studies in Geneva, and Paola Gaeta, Professor of International Law and International Criminal Law at the Graduate Institute of International and Development Studies, Geneva

Genocide and Crimes Against Humanity
Secrets and Surprises in the Travaux Préparatoires of the Genocide Convention by Hirad Abtahi, First Legal Adviser, Head of the Legal and Enforcement Unit, at the Presidency of the International Criminal Court, and Philippa Webb, Reader (Associate Professor) in Public International Law at King’s College London and a barrister at 20 Essex Street Chambers
Perspectives on Cultural Genocide: From Criminal Law to Cultural Diversity by Jérémie Gilbert, Professor of International and Comparative Law, University of East London
Crimes Against Humanity: Repairing Title 18’s Blind Spots by Beth Van Schaack, Leah Kaplan Visiting Professor in Human Rights at Stanford Law School and Visiting Scholar at the Center for International Security & Cooperation at Stanford University
A New Global Treaty on Crimes Against Humanity: Future Prospects by Leila Nadya Sadat, James Carr Professor of International Criminal Law and Director of the Whitney R. Harris World Law Institute at Washington University School of Law, Special Adviser to the ICC Prosecutor on Crimes Against Humanity, and Director of the Crimes Against Humanity Initiative

Transitional Justice and Atrocity Prevention
Justice Outside of Criminal Courtrooms and Jailhouses by Mark A. Drumbl, Class of 1975 Alumni Professor of Law and Director, Transnational Law Institute, Washington and Lee University School of Law
Toward Greater Synergy between Courts and Truth Commissions in Post-Conflict Contexts: Lessons from Sierra Leone by Charles Chernor Jalloh, Professor of Law, Florida International University, and a member of the International Law Commission
International Criminal Tribunals and Cooperation with States: Serbia and the provision of evidence for the Slobodan Milosevic Trial at the ICTY by Geoffrey Nice QC, a barrister since 1971, formerly at the International Criminal Tribunal for the Former Yugoslavia, and Nevenka Tromp, Lecturer in East European Studies at the University of Amsterdam and former member of the ICTY Leadership Research Team
The Arc toward Justice and Peace by Mary Ellen O’Connell, the Robert and Marion Short Chair in Law at the University of Notre Dame Law School
The Maintenance of International Peace and Security through Prevention of Atrocity Crimes: The Question of Co-operation between the UN and regional Arrangements by Adama Dieng, UN Under-Secretary-General and Special Adviser on the Prevention of Genocide, as well as former Registrar of the International Criminal Tribunal for Rwanda and former Secretary-General of the International Commission of Jurists

Justice in Culture and Practice
Law and Film: Curating Rights Cinema by Emma Sandon, Senior Lecturer in Film and Television at Birkbeck, University of London, and a Research Fellow to the Chair for Social Change, University of Johannesburg
The Role of Advocates in Developing International Law by Wayne Jordash QC, international human rights and humanitarian lawyer and founding partner of Global Rights Compliance
Bill the Blogger by Diane Marie Amann, Emily and Ernest Woodruff Chair in International Law and Faculty Co-Director of the Dean Rusk International Law Center at the University of Georgia School of 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)

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:

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.

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.

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.

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.