treaties & custom

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THE HAGUE, Netherlands – International Criminal Justice Day isn’t till next Sunday, but The Hague is ready. Flags like the one depicted above greet visitors throughout city center.

Occurring every July 17, the Day coincides with the signing in 1998 of the Rome Statute of the International Criminal Court – a landmark moment in the movement to call perpetrators of international crimes to account. The court began operating on July 1, 2002, and since then has examined, investigated, prosecuted, or adjudicated cases arising in nearly 19 countries, from Afghanistan to Ukraine.

To mark this 18th anniversary of the Rome Diplomatic Conference, the ICC welcomes photos from around the world. The idea’s to create an image of the scales of justice and show its presence throughout the world by posting on social media with hashtags #JusticeMatters, #17July, and #ICC. Details here.

Further to that effort, yours truly looks forward to today’s roundtable consultation on the draft Policy on Children, opened for public comment last month by the ICC’s Office of the Prosecutor.

IMG_5540At first blush, today’s security challenges may seem familiar. Yet they are new – emerging, in U.S. State Department parlance – because of the novel ways in which those challenges present themselves.

So explained Mallory Stewart (near right), Deputy Assistant Secretary of State for Emerging Security Challenges & Defense Policy, during her fascinating talk Monday at Tillar House, the Washington, D.C. headquarters of the American Society of International Law. We at Georgia Law’s Dean Rusk International Law Center were honored to join ASIL’s Nonproliferation, Arms Control & Disarmament Interest Group in cosponsoring Stewart’s talk, “Common Challenges to Diverse Security Threats.” (For the event video, see here.)

Stewart’s talk followed introductions by Kathleen A. Doty, Interest Group Co-Chair and our Center’s Associate Director for Global Practice Preparation, as well as opening remarks by yours truly (above, at right) respecting Dean Rusk’s arms control legacy.

Stewart pointed to technological change, in outer space and elsewhere, as one of the emerging challenges. Within this category was what is essentially garbage; that is, the debris left in outer space by state actors and, increasingly, nonstate/commercial actors, whose celestial flotsam and jetsam continue to orbit and present hazards to active satellites, space stations, and the like.

Another challenge is dual-use technology. Items as seemingly innocent as chlorine – a chemical essential to everyday cleaning – can become a security threat when deployed as a weapon, as is alleged to have happened during the ongoing conflict in Syria.

Yet another is ubiquity, the reality that technologies, such as cyber capabilities, are, literally, everywhere, and thus not easy to contain.

Containment – regulation – thus is difficult both to design and to effectuate. With regard to dual-use technologies, for instance, Stewart posed questions of intent: How, exactly, does one define and identify the moment that an innocent item is transformed into a weapon? What about attribution – in areas like cyberwarfare, how can the perpetrator be identified? How can attacks waged with such weapons be prohibited in advance?

Stewart gave due respect to the 20th C. arms control treaties that form the core portfolio of State’s Bureau of Arms Control, Verification & Compliance, where she practices. Nevertheless, stressing global interdependence, she stressed the need for more nimble forms of international lawmaking. To be precise, she looked to mechanisms of soft law, such as codes of conduct, as ways that states and other essential actors might develop norms for responsible behavior in the short term. In the longer term, if the internalization and implementation of such norms should prove successful, eventually legally binding treaties may result.

(Cross-posted from Exchange of Notes blog, where this post appears as Part 2 of a 2-part series; Part 1 is here.)

outerspaceVisitors to Tillar House, the Washington, D.C., headquarters of the American Society of International Law, were treated Monday to a superb overview of emerging security challenges by the U.S. State Department lawyer who leads that portfolio, Mallory Stewart. I was proud both to have Georgia Law’s Dean Rusk International Law Center cosponsor, and also to serve as discussant for this important event. This post and the post above will outline the proceedings. (For the event video, see here.) This post consists of my opening remarks, which aimed to to reacquaint the audience with to the role that our Center’s namesake, Dean Rusk, played in building the arms control framework within which Stewart and her colleagues work.

. . .

Everyone knows, of course, about Dean Rusk and Vietnam – of his role in championing a foreign conflict that claimed more than a million American and Vietnamese lives between 1965 and 1974. Everyone knows, too, of his pivotal role in averting nuclear catastrophe during the Cuban Missile Crisis of 1962, when Rusk famously said,

“We are eyeball to eyeball, and the other fellow just blinked.”

What may be less well known – or been forgotten – is likewise significant. That is Rusk’s role in the design and implementation of the international arms control regime that has prevailed since the United States dropped atomic bombs on Japan seven decades ago. An Army officer who served in Asia and then in the War Department in D.C., Rusk, like many of his generation, did not fault the military decision. Yet in his memoir, As I Saw It, he wrote (p.122):

“[W]e made a mistake with the Manhattan Project from its inception. We should have built in a political task force to consider the ramifications of using the bomb.”

That position is consistent with Rusk’s own work, first as a State Department diplomat who championed the United Nations, NATO, and other multilateral postwar efforts, and ultimately as the head of that Cabinet department, for the entirety of the Kennedy and Johnson administrations.

As Secretary of State, Rusk oversaw the establishment of the U.S. Arms Control and Disarmament Agency, a forerunner of the Bureau for which our principal speaker, Mallory Stewart, now works. Moreover, Rusk was instrumental in the drafting, negotiation, conclusion, or implementation of at least seven major arms control treaties.

ltbtruskOne was the 1963 Limited Test Ban Treaty, about which Rusk wrote (p. 259):

“[A]fter the Cuban missile crisis, it was important to demonstrate that the United States and Soviet Union could coexist. The test ban required careful and extensive negotiations, but we and they did sign a major agreement on the heels of the most horrendous crisis the world has seen. … Such is the legacy of what President Kennedy felt was his proudest achievement.”

The other treaties were the Antarctic Treaty, the Outer Space Treaty, the Treaty of Tlatelolco, the Nuclear Non-Proliferation Treaty, the Seabed Arms Control Treaty, and the Anti-Ballistic Missile Treaty. Many of them remain at the core of the U.S. arms control portfolio to this day. Yet with the same modesty that pervades his memoir, Rusk wrote (p. 353):

“On the whole, our record on arms control under Lyndon Johnson was respectable.”

He did allow himself a light pat on the back (p.353):

“In reviewing the accomplishments of the Kennedy-Johnson years, I claim only one for myself: that with the agreements negotiated and our constant talking with the Soviets, my colleagues and I helped add eight years to the time since a nuclear weapon has been fired in anger.”

Rusk’s commitment to extending that time continued long after he left government, in 1969, and joined the faculty at the University of Georgia School of Law. Professor Rusk spoke often about arms control, with students, with the larger community, and with the stream of colleagues who consulted with him at his new home. Indeed, as late as 1985 – less than a decade before his death – Rusk welcomed to Athens, Georgia, former British Prime Minister Edward Heath, former Secretary of Defense McGeorge Bundy, former Secretary of State Alexander Haig, and others for a televised discussion entitled “Forty Years Since Hiroshima: What Next for Mankind?”

Rusk’s 1990 memoir returned to that question. In the final chapter, entitled “Dean Rusk’s Message to the Young,” he wrote (p. 630):

“Your generation will discover in the decades ahead whether mankind can organize a durable peace in a world in which thousands of megatons are lying around in the hands of frail human beings. A world in which collective security – what my generation used to try to curb the obscenity of war – is withering away, and we are not even discussing what shall take its place.”

We are here today to put the lie to that last line – that is, to discuss those very issues of global security. I look forward to Ms. Stewart’s remarks.

(Cross-posted from Exchange of Notes blog. Part 2 of this 2-part series outlines Mallory Stewart’s remarks. Credit for photo at top, of Rusk signing the Outer Space Treaty; credit for photo above of Rusk, standing just to the left of the portrait as President Kennedy signs the Limited Test Ban Treaty)

Reprinted in full, “No child should be made to suffer such horrors,” the statement issued today by International Criminal Court Prosecutor Fatou Bensouda in commemoration of the 13th anniversary of the entry into force of the 2000 Optional Protocol on the Involvement of Children in Armed Conflict — a date known since then as the International Day against the Use of Child Soldiers:

2bensoudaThousands of children around the world continue to be used as soldiers and affected by the horrors of war.  Instead of a childhood filled with tranquillity and joy, learning and play, children are far too often the primary victims of armed conflict, where they are trained and forced to kill, rape, pillage, and undertake hard physical labour.  Their traumatisation should weigh heavily on our collective conscience, and cannot be left unabated.

The daily reality for these children, boys and girls, is both appalling and traumatic. Thrust into battle zones, they must struggle to survive or perish, often through violent deaths; where they are forced to witness or commit unspeakable acts of violence against others, military or civilian, men, women or children, at times, even against their own families. They may be exposed and fall victim to horrific sexual violence.

The Rome Statute of the International Criminal Court (ICC) mandates the ICC Prosecutor to investigate and prosecute the crimes of genocide, war crimes and crimes against humanity – crimes which shock the conscience of humanity.  The conscription, enlistment and use of child soldiers figure amongst the most reprehensible crimes under the Rome Statute.

There is no such thing in the Rome Statute as lawful conscription of children under the age of 15 into the armed forces or groups, or their enlistment irrespective of whether the child joins voluntarily or through compulsion. Those who recruit children or use them to take active part in hostilities are committing serious crimes and must be held accountable.

The law must be a cornerstone of protection for all children in war zones. On this International Day against the Use of Child Soldiers, the world owes it to our children to renew its collective resolve to prevent and end impunity for these crimes.  This is not only a moral imperative and a legal duty under the Rome Statute, but necessary to ensure the success of future generations.  A crime against a child is an offence against all of humanity.

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 honor of the 150th anniversary today of the very first Geneva Convention on the laws of war, the International Committee of the Red Cross issued the brilliant video above: Rules of War in 4 very informative minutes. Through simple yet compelling drawings, it covers founding principles of international humanitarian law, such as humanity, distinction, necessity, and proportionality.

As an international story, it focuses on the men who were delegates to the 1863 Geneva Conference and their handiwork, the Convention for the Amelioration of the Condition of the Wounded in Armies in the Field adopted on August 22, 1864.

It thus omits the vc007053U.S. after-story of this treaty; that is, the 1882 U.S. ratification that was the handiwork of a remarkable woman: Massachusetts-born Clara Barton (left), a pioneer nurse during America’s Civil War and, at age 60, a founder of the American Red Cross. (photo credit) For that after-story, see the 2012 IntLawGrrls post entitled Clara Barton, ICRC & crimes v. humanity, peace, by Washington University-St. Louis Law Professor Leila Nadya Sadat.

gassed

In this month that marks the centenary of World War I, the U.S. Supreme Court evoked an epic image of that global conflict. Thus was rejected today the prosecutorial conflation of chemical warfare with what the Court in Bond v. United States called an “unremarkable local offense.”

The image is the one above: John Singer Sargent’s 1919 painting, Gassed. Fully 20 feet wide and 7-1/2 feet tall, it hangs in the Imperial War Museum in London. (image credit) Writing for a 6-member majority, Chief Justice John G. Roberts, Jr., described the scene, one that Sargent had encountered in 1917 on a battlefield in France:

‘[T]wo lines of soldiers, blinded by mustard gas, clinging single file to orderlies guiding them to an improvised aid station. There they would receive little treatment and no relief; many suffered for weeks only to have the gas claim their lives. The soldiers were shown staggering through piles of comrades too seriously burned to even join the procession.’

The tragedy, Roberts wrote, contributed “to an overwhelming consensus in the international community that toxic chemicals should never again be used as weapons against human beings” – a consensus reflected in instruments like the 1992 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, which today has 190 parties. Among them is the United States, which, Roberts explained, “gave domestic effect” to the obligations it had assumed under that treaty in 1998, when it passed the Chemical Weapons Convention Implementation Act, 18 U.S.C. § 229 et seq. The statute makes the use of “chemical weapons,” a federal crime, punishable by death if the use resulted in death. It “‘goes without saying,'” Roberts concluded, that Congress had in mind tragedies along the lines depicted above – or at least as grave as the mid-1990s sarin gas attacks in Japan. He deemed well out of Congress’ mind the facts at bar: “an amateur attempt by a jilted wife to injure her husband’s lover, which ended up causing only a minor thumb burn readily treated by rinsing with water.”

This overturning of a federal conviction on federalism grounds did more than give perspective on the acts under review. It also avoided the asked-for reconsideration of Missouri v. Holland (1920), a precedent nearly as old as Sargent’s painting. There a unanimous Court upheld a federal statute that gave domestic effect to a 1916 treaty by regulating the hunting of birds that fly between the United States and Canada. Invoking the Constitution’s treaty-making and supremacy clauses, Justice Oliver Wendell Holmes, Jr., wrote:

‘If the treaty is valid, there can be no dispute about the validity of the statute under Article I, § 8, as a necessary and proper means to execute the powers of the Government.’

Holmes’ terse reasoning invites questions, many of them bruited about in the months since the Court announced it would review the decision below in Bond. (See, for example, this article by my Georgia Law colleague Harlan Cohen.) Roberts’ majority opinion declined, but 3 Justices who disagreed with him accepted that invitation. “[T]he Treaty Power is itself a limited federal power,” Justice Clarence Thomas wrote in a concurrence-in-the-judgment that Justices Antonin Scalia and Samuel Alito, Jr., joined. In another concurrence-in-judgment Scalia, joined by Thomas, attributed others’ reluctance to revisit Holland to the nature of the case. “We would not give the Government’s support of the Holland principle the time of day,” they insisted, “were we confronted with ‘treaty-implementing’ legislation that abrogated the freedom of speech or some other constitutionally protected individual right.” Whether they are right remains a question for another day.

IWC latest logo 210x64Some lawmakers and lobbyists in Japan displayed their distaste for whaling bans this week with a whale-meat eat-in in Tokyo. The Japan Daily Press reported:

‘In an act of defiance against a recent ruling by the International Court of Justice (ICJ) halting the nation’s whale hunts, pro-whaling legislators and lobby group gathered on Tuesday to eat whale meat while pledging to continue what they call one of the country’s centuries-old traditions.’

Stoking these opponents’ appetite was the March 31 judgment in Whaling in the Antarctic (Australia v. Japan: New Zealand intervening). (Prior posts here and here.) The Hague-based court held 12-to-4 that Japan had violated the 1946 International Convention on the Regulation of Whaling by granting permits to harvest 3 species of whales areasin an area of the seas known as the Southern Ocean Sanctuary. (In yellow on map at right; see p. 3 here.) Japan asserted that a scientific research exception to the Convention’s whaling ban justified the hunts. But a majority of the ICJ disagreed, in a ruling that Rutgers Professor Cymie Payne analyzed in a recent ASIL Insight. (credit for above logo of the International Whaling Commission, which monitors compliance with the Convention)

Yesterday, the Japan Times reported, Japan’s government announced that it would still engage in what it calls research whaling, albeit at a reduced rate and in regions other than the area of concern to the ICJ case. The report indicated that the decision to go forward marked a victory for Japan’s Fisheries Ministry and a defeat for its Foreign Ministry.

Particularly vocal among the opponents of the ICJ’s ruling has been the man who’s served as Fisheries Minister since last December: Yoshimasa Hayashi, a Harvard Kennedy School graduate. Hayashi spoke at the Tokyo banquet on Tuesday. And in a February interview with Japan Times, he explained his position:

‘Japan is an island nation surrounded by the sea, so taking some good protein from the ocean is very important. For food security, I think it’s very important … We have never said everybody should eat whale, but we have a long tradition and culture of whaling. So why don’t we at least agree to disagree? We have this culture and you don’t have that culture.’

Payne’s Insight agreed that, notwithstanding the March 31 issuance of the ICJ’s opinion, resolution of “fundamental cultural conflict[s]” awaits another day.

bbIt’s my great pleasure to announce the publication of the American Society of International Law Benchbook on International Law (2014). This represents the culmination of several years of hard work by 4 dozen contributors, international law scholars and practitioners alike. We’ve benefited greatly from advice of the ASIL Judicial Advisory Board, composed of one member from each federal circuit and several state supreme courts, chaired by U.S. Supreme Court Justice Ruth Bader Ginsburg. It has been an honor to serve as the Benchbook‘s Editor-in-Chief.

As detailed in the Preface, the Benchbook is intended as an aid to judges and litigants when foreign or international law (including treaties and customary norms) forms a part of the case before them.

It will be demonstrated at the joint meeting of ASIL and the International Law Association this week in Washington, D.C. — to be precise, as part of ASIL’s Annual General Meeting, which begins at 2:30 p.m. Thursday, April 10, in Polaris Room A/B at the Ronald Reagan Building & International Trade Center, on Pennsylvania Avenue a few blocks from the White House. (Full meeting program here.) We will give a brief demonstration and extend heartfelt thanks to all who contributed; all are welcome to attend.

The Benchbook appears online here. Readers will find the Preface and, by clicking the Table of Contents tab, the contents of this 2014 edition. Included are our dedication to the memory of David J. Bederman, followed by these units:

► Primer (International Law Defined; Sources and Evidence of International Law; Uses of International Law in U.S. Courts)

► Preliminaries (Jurisdiction; Immunities and Other Preliminary Considerations; Discovery and Other Procedures)

► Specific Topics (International Arbitration; International Law Pertaining to Families and Children; International Sale of Goods; International Air Transportation; Human Rights, comprising Alien Tort Statute, Torture Victim Protection Act, Human Trafficking, and Non-refoulement or Nonreturn; Criminal Justice; and Environment)

► Resources (Judicial Interpretation of International or Foreign Instruments; Research Resources)

Clicking on any of the above chapters will give you the pdf version of that segment of the Benchbook. If you would like to access and download the 356-page Benchbook as a whole, you may do so here.

In order to make the volume as user-friendly as possible (until our eventual transfer to html with hypertexting), we have cross-referenced throughout all chapters, and further provided several means to locate information:

Summary Table of Contents

Detailed Table of Contents

Tables of Treaties, Cases, Laws, and Scholarly Writings, along with a Keyword Index

You will see toward the end that the Benchbook includes a list with short biographies of each contributor. (The book benefited as well from the help of my colleagues and students at the University of Georgia School of Law  – Kaitlin M. Ball, but also Kent Barnett, Harlan Cohen, Erika Furlong, and the super staff at the Alexander King Campbell Law Library.)

The book also includes acknowledgments. These cannot begin to express our deep thanks to all of you for ASIL members’ support of this multiyear project. Going forward, we hope to keep the Benchbook current with periodic updating, and also to make it a hands-on training tool for judges and their staffs. We welcome members’ help in those endeavors.

AAA_howethom_47898Suppose it’s like aiming at fish in a barrel to name the many flaws in The Monuments Men, now playing in cinemas. There’s the failed Oceans 1944 sense of it – it’s a buddy movie with no true friends. There’s the cinematography that looks like a green-screen loop of some field in the San Fernando Valley, accented by some surprisingly flat Paris street scenes. There’s the absence of any love interest; indeed, so little love is lavished on the artworks recovered by the “Men” (with the essential help of one woman) that the viewer is left wondering what the fuss was about.

This lawyer feels compelled to focus on a different flaw, on how the film squandered an opportunity to raise awareness about the laws of cultural heritage and armed conflict.

At one point in “Monuments,” the leader of the American search team questions a German colonel. Captured while destroying medieval and Renaissance masterpieces that the Nazis had seized from churches, private collections, and public museums, this POW refuses to talk: “I have done nothing wrong, and pursuant to the Geneva Convention, soon I will be repatriated.” The American’s oh-no-you-won’t retort turns on the colonel’s earlier actions at a concentration camp. It is an odd turn, given the film’s ostensible concern with looted art.

Well before World War II, international injunctions against such destruction already were in place. Armies were bound to distinguish between combatants and civilians, and only permitted to attack the person and property of the former. Article 23(g) of the Regulations concerning the Laws and Customs of War on Land, annexed to the 1899 Hague Convention (II) with Respect to the Laws and Customs of War on Land and to its 1907 reiteration, deemed it

‘especially prohibited … [t]o destroy or seize the enemy’s property, unless such destruction or seizure be imperatively demanded by the necessities of war.’

Articles 25 and 28, dealing with attacks and pillage, reinforced this prohibition.

In short, the colonel’s actions respecting art were not just immoral. They were illegal, even then, a decade before the proscriptions were spelled out in detail via the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict. Given the continued violations of such proscriptions – Syria and Mali jump to mind – one wishes the movie had stressed this fact.

(credit for 1946 photo of Belgian Lt. Raymond Lemaire and Capt. Edith Standen, U.S. Women’s Army Corps (neither mentioned in the film), holding a portrait by Peter Paul Rubens, part of Smithsonian Institution online exhibit on the “Monuments” recoveries)