United States

It is hard to believe that 50 years have passed since the assassination, on this day in Memphis, of Rev. Dr. Martin Luther King, Jr. His life – and his death – have framed much of my own life, as a schoolchild and law student in Chicago, as a law clerk once struck with awe when his widow, Coretta Scott King, walked past, as an attorney representing poor persons charged with federal crimes, and as a professor, first at Martin Luther King Jr. Hall, now very near King’s native Atlanta, and as a scholar of human rights, human security, and the laws of war and peace. King’s influence is evident in my recent borrowing of his “arc of justice” metaphor and in my many posts about him and the movement of which he was a part.

To commemorate this anniversary, I reprint here one such post, published in 2008:

What Dr. King did

Backlash has been part and parcel of decades-old struggle to set aside this day in honor of the Rev. Dr. Martin Luther King, Jr., born 79 years ago this month. Most years backlash has come from the right, often from elements once aligned with segregation. (On that point, see this excellent op-ed.)
This year questions have come from a different direction. A Democratic presidential candidate has indicated that King was a talker, that it was President Lyndon B. Johnson who delivered civil rights to people of color in the United States. What was said:

Dr. King’s dream began to be realized when President Johnson passed the Civil Rights Act. It took a president to get it done. … The power of that dream became real in people’s lives because we had a president ….

In view of this claim, it seems appropriate to recall at least some of what Dr. King did — not only through the act of talking, but also through the acts of submitting to arrest, of marching, of putting himself before hostile crowds.
What Dr. King did, after he won the 1964 Nobel Peace Prize (above), was to act upon his understanding that civil rights depended on peace.
What Dr. King did was this: he defied the President to whom, that 1 candidate said, King owed everything. King opposed the Vietnam War, and in so doing, spoke against war itself. The 1st audio-visual item below, a brief video pastiche, demonstrates the nature and scope of his opposition. The 2d audio-visual item below, a longer audio clip of a sermon in which King explained his opposition, found evil in the sending of poor people of all races to kill another nation of poor people:

We were taking the black young men who had been crippled by society and sending them eight thousand miles away to guarantee liberties in Southeast Asia which they had not found in Southwest Georgia and East Harlem. So we have been repeatedly faced with a cruel irony of watching Negro and white boys on TV screens as they kill and die together for a nation that has been unable to seat them together in the same school room. So we watch them in brutal solidarity, burning the huts of a poor village. But we realize that they would hardly live on the same block in Chicago or Atlanta. Now, I could not be silent in the face of such cruel manipulation of the poor.

Recalling prior encounters with segregationist sheriffs, King continued:

Oh, the press was so noble in its applause, and so noble in its praise when I was saying, ‘Be non-violent toward Bull Connor’; when I was saying, ‘Be non-violent toward Jim Clark.’ There’s something strangely inconsistent about a nation and a press that will praise you when you say, ‘Be non-violent toward Jim Clark,’ but will curse and damn you when you say, ‘Be non-violent toward little brown Vietnamese children.’

What Dr. King did is evident in this timeline:

March 2, 1965: “King asserted that the war in Vietnam was ‘accomplishing nothing’ and called for a negotiated settlement.”
March 25, 1967: “King led his first anti-war march in Chicago … and reinforced the connection between war abroad and injustice at home: ‘’The bombs in Vietnam explode at home—they destroy the dream and possibility for a decent America.'”
April 4, 1967: In a speech entitled “Beyond Vietnam,” King spoke out against the war in front of “3,000 people at Riverside Church in New York City.”
April 15, 1967: Despite the NAACP’s resistance to his linkage of peace and civil rights, King, along with Dr. Benjamin Spock (with whom Coretta Scott King had been marching for years) and 10,000 others, demonstrated against war in a march, pictured at right, to the United Nations headquarters in New York.
April 30, 1967: King gave the sermon quoted above at his church, Ebenezer Baptist in Atlanta.
March 31, 1968: In a sermon at the National Cathedral in Washington, D.C., King called Vietnam ‘one of the most unjust wars that has ever been fought in the history of the world.’
Four days later King died, felled by an assassin’s bullet — 4 days, that is, after Johnson announced both that he he would begin to end the war and that he would not seek to remain President after the November election, 4 days after the President had yielded to antiwar entreaties of King and others.
What Dr. King did, through word and deed, was to help force a President to hasten the cause of peace on a troubled planet.
It took a dreamer to get it done.

The investigation by Special Prosecutor Robert Mueller into 2016 election interference and related matters is now in its 10th month. Among the ensuing indictments is the one announced last Friday, in United States v. Internet Research Agency LLC.

Asked for a Vox legal-experts-roundup about last Friday’s indictment of what I called “a baker’s dozen of Russian persons and entities,” I pinpointed 3 oft-repeated words, “and their co-conspirators,” as especially significant. Still to come, these words suggest, is a “mirror image” indictment, one likely to name some “Americans, fully subject to trial in the United States.”

Full comments here.

The sudden news of the passing of my dear friend and colleague, Dr. David Caron, fills me with sad thoughts and happy memories.

Years ago, when I was starting out in international law, David – then a chaired professor at Berkeley, the law school an hour’s drive from my own – was a pillar of support. He was the 1st scholar to accept my invitation to speak at the 1st conference I organized, anchoring debate on “Reconstruction after Iraq” and publishing in our Cal-Davis journal an important analysis of claims commissions as a transitional justice tool.

Warm and witty, David once sent me a handwritten note of thanks for the “lovely bouquet” of pre-tenure reprints he’d received from me.

Both of us transplants from Back East, David and I shared an enthusiasm for California and enjoyed helping to cultivate a close-knit Left Coast international law community – even as we took part in events and activities across the globe.

David’s achievements truly are too numerous to mention. Among many other things, he was an inspiring President of the American Society of International Law, from 2010 to 2012. About the time he completed that term, he took emeritus status at Berkeley, and he and his wife, Susan Spencer, embarked on new adventures – 1st as Law Dean at King’s College London.  (A distinguished international arbitration specialist (see GAR obituary here), he had practiced at London’s 20 Essex Street Chambers since 2009. David, a proud graduate of the U.S. Coast Guard Academy, also was a noted expert on the law of the sea.) In 2016, he was appointed a member of  the Iran-United States Claims Tribunal.

It was in this last capacity that I last saw David. The Global Governance Summer School sponsored by my current institution, the Dean Rusk International Law Center at the University of Georgia School of Law, brought us to The Hague not many months ago. The highlight of our legal-institution briefings was the half-day we spent as David’s guests in the lovely mansion that houses this 37-year-old claims tribunal. With breaks for tea and biscuits – David was ever the gracious host – our students were treated to a candid discussion between David and Dr. Hossein Piran, Senior Legal Adviser. The two had served as tribunal law clerks years earlier, and the respect they showed one another provided an invaluable lesson about the promise of civil discourse and of the pacific settlement of international disputes.

That lesson is a most fitting way to commemorate David’s passing.

Pictured above, during our June 2017 visit to the Iran-U.S. Claims Tribunal, front from left: Ana Morales Ramos, Legal Adviser; Hossein Piran, Senior Legal Adviser; Kathleen A. Doty, Director of Georgia Law’s Dean Rusk International Law Center; David Caron, Tribunal Member; and Georgia Law Professor Diane Marie Amann, Faculty Co-Director of the Dean Rusk International Law Center. Back row, students Nicholas Duffey, Lyddy O’Brien, Brian Griffin, Wade Herring, Jennifer Cotton, Evans Horsley, Casey Callaghan, Kristopher Kolb, Nils Okeson, James Cox, and Ezra Thompson.

Last autumn a colleague recommended The Retreat of Western Liberalism by Edward Luce. I finally got ’round to reading it about 6 months after its June 2017 release, over winter break.

It begins by recounting Luce’s impulse roadtrip in 1989, joining Oxford friends in tearing down the Berlin Wall. It proceeds to survey trends scholars have been discussing for at least a decade – and then, as one might say, the book adds Trump and mixes. The result is a series of aphorisms and anecdotes; an example:

“In Moscow’s view, history is back and nothing is inevitable, least of all liberal democracy.”

Yet just a half-year later, events point to things missing from this mid-2017 account.

One is consideration of how voters would react to the current U.S. administration; that is, whether the ballot box might stymie the very forces it unleashed with the presidential election of November 8, 2016. (This omission surprises, given that as early as April 2017, a Democratic candidate had made a strong showing in a highly publicized Georgia congressional race.) Since Retreat was published, Republicans have lost a U.S. Senate seat in Alabama, along with other races, including 2 presumed GOP-safe statehouse seats in my own Georgia county. If results like these turn out to be bellwethers for the November 2018 midterms – and if newly elected leaders then work to recalibrate the policy agenda – at least some of the governance alarms raised in Retreat will seem less well-founded.

Another is discussion of sex and gender as pieces of the geopolitical puzzle. Nearly all the anecdotes related, and nearly all the sources cited, are male or pertain to men. Exceptions are critiques of the 2016 Democratic presidential candidate, Hillary Clinton, and of the United Kingdom’s post-Brexit PM, Teresa May, plus comments on Germany by reference to Angela Merkel. All 3 are women, of course, yet neither the subject’s sex nor the gendered nature of politics figures into these analyses. The January 21, 2017, global Women’s Marches suggested a need for more attention to sex-gender dynamics, and events in the second half of last year, signaled by #MeToo and #Time’sUp, confirm it.

Perhaps the pretermission is due to the book’s rather strict construction of “Western liberalism,” as  centered on the freedom of the individual. That framing of liberty may incur tension with views of equality that take into account an individual’s  membership in a group. The book evinces discomfort with attention to such membership by reference to “identity politics,” on the one hand, and color-lined “nationalism,” on the other. The excesses of both are indeed complications. But they exist. Better to explore reconciliation of liberty-equality tensions, as another commentator recently did, than only to decry manifestations of excess.

All this is not to say that the book’s structural observations are to be disregarded. To the contrary:

Its concern that elites have overstated the Western liberal solution is correct. The same may not be said of the book’s prescription of listening more to persons who voted for the current president, at least not if “listening” refers to myriad of 2017 articles presenting anecdotal interviews with such voters. Listening in a more statistically grounded manner well may be in order.

Also correct is the book’s concern that as political and economic power shifts east, to Asia, the West ought to recognize, to think, and to act more strategically in response to that shift. Its positing of a standoff between liberal India and illiberal China –

“… Divided by the Himalayas, the world’s two largest countries, China and India, sit side by side – one an autocracy, the other a democracy. …”

– is not immediately persuasive, yet merits further pondering.

In short, Luce’s observations offer a basis on which to continue to make sense of our present and future:

“We must think more radically than that.”

Luce pushes us, and for this, his book is a worthwhile read.

The U.S. President’s speech to the U.N. General Assembly today sought to draw support from the example of a predecessor, Harry S Truman, who encouraged the founding in 1945 of the United Nations Organization. But on close comparison – that is, analysis more searching than that in a just-published, facile Time account – today’s speech is a far cry from the global vision of Truman era.

“The United Nations represents the idea of a universal morality, superior to the interests of individual nations. Its foundation does not rest upon power or privilege; it rests upon faith. They rest upon the faith of men in human values – upon the belief that men in every land hold the same high ideals and strive toward the same goals for peace and justice.”

So said Truman in 1950 to the General Assembly in New York, delivering the traditional head-of-state speech on behalf of his country.

In the aftermath of World War II – a war that he had brought to a close following the death-in-office of President Franklin D. Roosevelt – Truman pushed for establishment of an international organization that would bring collective security to a world that, then as now, was troubled. His United States hosted the diplomatic conference at which the Charter of the United Nations was adopted on June 26, 1945. That Charter lays out a plan for international regulation of the use of military force – a plan established by, to quote the Charter’s very first words:

“We the peoples of the United Nations determine to save succeeding generations from the scourge of war…”

U.S. President Harry S Truman addresses 1945 San Francisco Conference to draft the Charter of the United Nations. (credit)

In April 1945, fewer than two weeks after VJ Day, Truman had opened that San Francisco Conference with a speech that placed collective security over the whims of any single country. To quote President Truman:

“The essence of our problem here is to provide sensible machinery for the settlement of disputes among nations. Without this, peace cannot exist. We can no longer permit any nation, or group of nations, to attempt to settle their arguments with bombs and bayonets.”

Five years later, his 1950 address to the General Assembly acknowledged:

“Governments may sometimes falter in their support of the United Nations, but the peoples of the world do not falter.”

By way of example, Truman in 1950 cited the “widespread,” “overwhelming,” and collective efforts of the United Nations to repel the then-recent invasion of South Korea. “In uniting to crush the aggressors in Korea” – note that Truman spoke of crushing aggressors, and not of destroying an entire country – he maintained that countries had “proved that the charter is a living instrument backed by the material and moral strength of members, large and small.”

In the U.S. head of state’s General Assembly speech today, the world heard a very different address, by a very different holder of the office of the U.S. President. Today’s speech referred to Truman and Truman-era policies like the Marshall Plan as purveyors of “three beautiful pillars,” of “sovereignty, security and prosperity.”

It must, however, be noted that no reference to sovereignty or prosperity may be found in the two pivotal Truman speeches. Not one of the three quoted words appears in the speech by which Secretary of State George Marshall announced his eponymous plan, either. Security does receive mention in Truman’s April 1945 speech, but in a global, collective, and cooperative, and not an individual nation-state, sense, as here:

“With firm faith in our hearts, to sustain us along the hard road to victory, we will find our way to a secure peace, for the ultimate benefit of all humanity.”

Truman’s envisagement of “peace, for the ultimate benefit of all humanity” exists worlds away from the enshrinement in today’s speech of individual state sovereignty.

Pleased to have contributed to reporter Sean Illing’s Vox roundups of academic commentary on yesterday’s testimony by former FBI Director James B. Comey before the U.S. Senate Select Committee on Intelligence. (photo credit)

Illing 1st asked whether, in “Comey’s introductory remarks or in his exchanges with senators,” the witness made “a case that President Trump attempted to obstruct justice.” My response here.

Next, he asked about a statement released by the President’s personal lawyer, which said that Comey had engaged in “unauthorized disclosure of privileged information.” My response, which treated the constitutional doctrine of executive privilege, here.

Children have become the unwilling emblems of armed conflict and extreme violence.

Searing images have surfaced in news stories, aid workers’ alerts, and rights groups’ dispatches: a 5 year old pulled from Aleppo rubble, orphans at a Goma children’s center, a young Colombian woman struggling to readjust after years as a child soldier, and, face down on a Turkish beach, a drowned 3-year-old refugee. Images of this nature were shown yesterday at the International Criminal Court, during the opening statement in Ongwen, with Prosecutor Fatou Bensouda herself warning “that some of these images are extremely disturbing.”

There is no better time than now to press for strategies both to combat such harms and to bring the persons responsible to justice. Presenting an important step toward those goals is the Policy on Children of the International Criminal Court Office of the Prosecutor.

fatou

Prosecutor Bensouda launched the Policy on Children at an event during last month’s meeting of the ICC Assembly of States Parties. Bensouda quoted from the U.N. expert Graça Machel’s pathbreaking 1996 report on children and armed conflict, then commented:

“[I]t is indeed unconscionable that we so clearly and consistently see children’s rights attacked and that we fail to defend them.
“It is unforgivable that children are assaulted, violated, murdered and yet our conscience is not revolted nor our sense of dignity challenged. This represents a fundamental crisis of our civilisation and a failure of our humanity.
“By adopting the Policy on Children, which we launch today, we at the Office of the Prosecutor seek to ensure that children suffering the gravest injustices are not ignored. That through the vector of the law, we do what we can to protect and advance the rights of children within the framework of the Rome Statute.”

Leading the event was journalist Zeinab Badawi. Among the many others who offered live or video interventions were: Mamadou Ismaël Konaté, Mali’s Minister of Justice and Human Rights of the Republic of Mali; Zeid Ra’ad Al Hussein, U.N. High Commissioner for Human Rights; Leila Zerrougui, Special Representative of the U.N. Secretary-General for Children and Armed Conflict; Angelina Jolie, Special Envoy of the U.N. High Commissioner for Refugees; Nobel Peace Prizewinner Leymah Gbowee; Lieutenant General Roméo-Dallaire, Founder of the Roméo Dallaire Child Soldiers Initiative (see also IntLawGrrls post by Kirsten Stefanik); Marc Dullaert, Founder of KidsRights and the Netherlands’ former Children’s Ombudsman; and Coumba Gawlo, U.N. Development Programme Goodwill Ambassador and National Goodwill Ambassador for the U.N. High Commissioner for Refugees.

screen2I am honored also to have offered brief remarks – and am especially honored to have assisted in the preparation of this Policy in my capacity as the Prosecutor’s Special Adviser on Children in & affected by Armed Conflict, working alongside a dedicated Office of the Prosecutor team led by Shamila Batohi, Gloria Atiba Davies, and Yayoi Yamaguchi. Preparation included experts’ gatherings at the University of Georgia School of Law Dean Rusk International Law Center, at Leiden Law School, and at the ICC itself, as well as consultations around the globe with young persons who had endured armed conflict. (Legal research produced by my students, in seminars on Children & International Law and through the work of the Georgia Law Project on Armed Conflict & Children, also was invaluable.)

The result is a Policy on Children spanning 47 pages, published simultaneously in Arabic, English, French, Spanish, and Swahili. Identifying children as persons under eighteen (paragraph 16), it covers a gamut of issues related to children and the work of the Prosecutor; for example, general policy, regulatory framework, and engagement with children at all stages of the proceedings. Among many other landmarks, the Policy:

► Embraces a child-sensitive approach grounded in the 1989 Convention on the Rights of the Child, a treaty ratified by every U.N. member state save one: the United States, which is also an ICC nonparty state. (My remarks happily noted that my other state of citizenship, the Republic of Ireland, is a state party to both the Child Rights Convention and the ICC’s Rome Statute.) Paragraph 22 of the Policy on Children thus states:

“In light of the foregoing, the Office will adopt a child-sensitive approach in all aspects of its work involving children. This approach appreciates the child as an individual person and recognises that, in a given context, a child may be vulnerable, capable, or both. The child-sensitive approach requires staff to take into account these vulnerabilities and capabilities. This approach is based on respect for children’s rights and is guided by the general principles of the 1989 Convention on the Rights of the Child: non-discrimination; the best interests of the child; the right to life, survival and development; and the right to express one’s views and have them considered.”

► Views children, like all human beings, as multi-faceted individuals and, simultaneously, as members of multi-generational communities. (See, for example, paragraph 100.) Paragraph 25 states:

“Children, by the very fact of their youth, are frequently more vulnerable than other persons; at certain ages and in certain circumstances, they are dependent on others. Notwithstanding any vulnerability and dependence, children possess and are continuously developing their own capacities – capacities to act, to choose and to participate in activities and decisions that affect them. The Office will remain mindful, in all aspects of its work, of the evolving capacities of the child.”

► Acknowledges in paragraph 17 “that most crimes under the Statute affect children in various ways, and that at times they are specifically targeted” – and then pledges that “the Office will, in order to capture the full extent of the harm suffered, seek to highlight the multi-faceted impact on children, at all stages of its work.” The regulatory framework thus enumerates a range of crimes against and affecting children:

  • recruitment and use by armed forces and armed groups of children under fifteen as war crimes (paragraphs 39-43);
  • forcible transfer of children and prevention of birth as acts of genocide (paragraphs 44-46);
  • trafficking of children as a form of enslavement constituting a crime against humanity (paragraphs 47-48);
  • attacks on buildings dedicated to education and health care as war crimes (paragraph 49);
  • torture and related war crimes and crimes against humanity (paragraph 50);
  • persecution as a crime against humanity (paragraph 50); and
  • sexual and gender-based violence as war crimes and crimes against humanity (paragraph 52).

► Details the Office’s plan for applying the child-sensitive approach, with respect both to all stages of proceedings, including preliminary examinations, investigations, and prosecutions, and to cooperation and external relations, institutional development, and implementation.

Even as cases involving crimes against and affecting children, like Ongwen, go forward, the Office is working on implementation of its new Policy on Children. The implementation phase will include developing versions of the Policy accessible to children. I’m looking forward to the opportunity to contribute this phase – and to hearing others’ views on the Policy.