United States

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.

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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.

about-iwdToday’s the 105th anniversary of International Women’s Day.

Inspired by speeches at an International Conference of Working Women the year before, in 1911 Austria, Denmark, Germany and Switzerland set aside a day in March to honor women’s demands for equality. Each year more countries joined in. The arrest of suffragist Sylvia Pankhurst during a London demonstration on March 8, 1914, fixed the 8th as IWD-Day. (credit for IWD image at top)

Further globalizing the Day was U.N. General Assembly Resolution 32/142. Adopted on Dec. 16, 1977 (the same day the Assembly also considered a Draft Convention on the Elimination of Discrimination against Women, a version of which it would adopt 2 years later), Resolution 32/142:

Invites all States to proclaim, in accordance with their historical and national traditions and customs, any day of the year as United Nations Day for Women’s Rights and International Peace …”

Most countries followed tradition and chose March 8, and paid note to annual U.N. themes (this year’s is #PledgeforParity).

The United States was a bit late to the party. Yet American observances increase every year, and last week, President Barack Obama proclaimed:

“I call upon all Americans to observe this month and to celebrate International Women’s Day on March 8, 2016, with appropriate programs, ceremonies, and activities. I also invite all Americans to visit http://www.WomensHistoryMonth.gov to learn more about the generations of women who have left enduring imprints on our history.”

And so we will.

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barsMonday was quite a day for child rights in the United States.

It began in the morning, when the Supreme Court made clear in Montgomery v. Louisiana that its 2012 ruling in Miller v. Alabama, which had outlawed sentences of life without parole for persons who were under eighteen when they committed the crime of conviction, applied retroactively.

Writing for the 6-member majority in Montgomery, Justice Anthony M. Kennedy  stated that the 2012 decision in Miller

did more than require a sentencer to con­sider a juvenile offender’s youth before imposing life with­ out parole; it established that the penological justifications for life without parole collapse in light of ‘the distinctive attributes of youth.’ (p. 16)

As a result, he wrote, it established a “substantive rule of constitutional law,” the kind of rule that must apply even to persons whose cases otherwise would have been deemed final before the issuance of the 2012 decision.

according to Wall Street Journal reporter Jess Bravin, the decision granted “the possibility of freedom to as many as 2,500 inmates who otherwise would die in prison.”

Then, just 4 hours from midnight, the Washington Post published an op-ed in which President Barack Obama announced he had accepted recommendations in a new Department of Justice report; thus, inter alia, “banning solitary confinement for juveniles” in the federal prison system. The op-ed concluded on notes of promise:

In America, we believe in redemption. We believe, in the words of Pope Francis, that ‘every human person is endowed with an inalienable dignity, and society can only benefit from the rehabilitation of those convicted of crimes.’

In that last sentence, notably, Obama quoted the September 2015 address to Congress in which Pope Francis called for abolition of the death penalty. The President’s op-ed continued:

We believe that when people make mistakes, they deserve the opportunity to remake their lives. And if we can give them the hope of a better future, and a way to get back on their feet, then we will leave our children with a country that is safer, stronger and worthy of our highest ideals.

A children’s day indeed.

Still, it must be noted that the solitary confinement ban applies only to the U.S. Bureau of Prisons. The DOJ report wrote at page 66:

The Department of Justice prosecutes very few juveniles, and so the Bureau is only responsible for the custody of a very small number of juveniles. As of December 5, 2015, the Bureau was responsible for 71 juvenile inmates, of which 45 were serving a term of incarceration, and 26 were under the supervision of the U.S. Probation Office.

Many thousands are in state correctional systems, and thus not affected by Obama’s decision.

And there is much yet to be done of a preventive nature, to help children from entering the juvenile justice system at all.

With the President delivering his final State of the Union address as I write these lines, I couldn’t help but have a look at my own very early endorsement of and pledge to work for (as a member of his campaign’s Human Rights Policy Committee) then-Senator Barack Obama. It holds up pretty well 8 years later, even if not everything turned out as, well, hoped. Here, once again, is my Jan. 3, 2008, IntLawGrrls post:

(An Iowa Caucus Day item) Soon after the 2d inauguration of George W. Bush, whose Presidency already had been marked by abuse scandals at Abu Ghraib and elsewhere, by the folly of the Iraq invasion, and by the failure to incapacitate Osama bin Laden, I began to prepare for the next election cycle. 
My road to 2008 began on the freeway, listening to politicians read aloud the books in which they endeavored to tell their own stories in their own words. My Life, the memoir by Bush’s immediate predecessor, Bill Clinton, filled in some details about a man who in the 1990s had dominated current events. In Living History his wife, Hillary Clinton, read her precise account of those same times. The works left me appreciative yet disengaged.
Then, on a colleague’s recommendation, I listened to Barack Obama read Dreams from My Father, the “story of race and inheritance” he’d written a decade earlier. The last thing I expected to discover were things in common. And yet here was someone who’d also moved about as a child, been raised at times by grandparents. Who’d also witnessed Harold Washington’s milestone mayoral election while working in Chicago — who’d worked a few years before moving on to law school, then to law teaching. Whose family ties put him in close contact with newcomers to America and with relatives overseas. (Yesterday, in the Voice of America interview here, Obama urged political rivals in Kenya, his father’s homeland, to “address peacefully the controversies that divide them.”) A progressive Illinoisan who preferred consensus to conflict.
His campaign’s followed lines sketched in Dreams and detailed in his 2d book, The Audacity of Hope. The operative word remains “hope” — discussed by means not of doe-eyed promises of the impossible, but of substantive policy prescriptions. There’s a focus on building a movement, one that underscores the significance of a fact seldom studied despite the reams of copy written about Obama: This is someone whose sensibilities were shaped by years of organizing poor people in job-starved communities, a real world experience that all politicians could use but few have. The campaign’s unabashed reaching across the aisle, moreover, comes as a relief to all exhausted by the pitched political battles of the recent past.
And then there’s Obama’s foreign policy.
This is a candidate who fears not to speak with favor of the United Nations and other international bodies. Who speaks of the essential need for the United States not simply to demand from its allies, but rather to earn from them, respect and assistance. Who understands “security” to mean more than military might. A candidate who persists in a plan to meet personally with world leaders of all political persuasion, to cut in on diplomatic dances of avoidance that sometimes extend distance between cultures.
Not least is Obama’s denunciation of Guantánamo and all it stands for: indefinitedetention for purposes of interrogation, abandonment of habeas corpus, cruelty and torture. It’s unequivocal and delivered to all audiences.
Aiding Obama are scores of foreign policy experts and international lawyers. They include many noted and respected women, among them: Pulitzer Prizewinning Harvard ProfessorSamantha Power; Patricia Wald, former judge on the U.S. Court of Appeals for the District ofColumbia Circuit and the International Criminal Tribunal for the former Yugoslavia; and Dr. Susan E. Rice, formerly assistant U.S. Secretary of State for African Affairs.
It may seem odd that someone who’s spent nearly a year blogging the achievements of the world’s women leaders is working for this candidate. Would I welcome as President a woman who’s made her own way, who stands on her own feet, who promises to bring the best to the job? Certainly. I’ll embrace that candidate, when she emerges.
Now, though, this IntLawGrrl’s honored to be doing her wee bit for Barack Obama, the human who pushes people to “Change the World.”

note

Given the conflicting and imprecise* dispatches on reports that Palestine seeks to join a raft of treaties including the Rome Statute of the International Criminal Court, the item above, just posted on the U.N. media website, is welcome. It states in full:

Notes to correspondents
Note to Correspondents in response to questions on documents submitted by the Permanent Observer of Palestine

New York, 2 January 2015

In response to questions, the Spokesman had the following to say about Palestinian submission of documents:

The Permanent Observer of Palestine to the United Nations in New York has transmitted to the Secretariat copies of documents relating to the accession of Palestine to 16 international conventions and treaties in respect of which the Secretary-General performs depositary functions. These include the Rome Statute of the International Criminal Court. The original versions of these documents were delivered on 1 January 2015 to the Deputy Special Coordinator for the Middle East Peace Process and Personal Representative of the Secretary-General to the PLO and the PA. The documents are being reviewed with a view to determining the appropriate next steps.

 

* E.g., it has not been possible to “sign” the Rome Statute since Israel and the United States became the last 2 states to do so, on Dec. 31, 2000. Both of those latter (and with them, Sudan) later attempted to “unsign,” an act previously unknown to international law. None of the three has since ratified.