United States

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.

In his statement on easing U.S.-Cuba relations, John F. Kerry said yesterday:

‘I look forward to being the first Secretary of State in 60 years to visit Cuba.’

rusk2The comment got me thinking who might’ve been the last Secretary of State to make an official visit. Perhaps Dean Rusk (bust at right), who served from 1970 to 1984 on the Georgia Law faculty, and is the namesake of a Georgia Law building, as well as its 37-year-old Dean Rusk Center for International Law & Policy?

Well, no. Kerry’s reference to “60 years,” plus the timeline of events in Cuba–it was in February 1959 that Fidel Castro became Cuba’s Prime Minister–point to John Foster Dulles, Secretary of State during much of the Eisenhower administration.

Still, there’s much to be gained by reading Rusk on Cuba. His tenure included U.S. entrenchment of policies against Cuba, undertaken as part of a larger policy aimed at containing Soviet communism. (That larger policy led to Rusk’s subsequent, controversial role in escalation and maintenance of the U.S.-Vietnam War.)

► Rusk’s State Department succeeded in persuading the Organization of American States to expel Cuba from taking part in inter-American affairs–a 1962 exclusion that remained in place till 2009.

► Rusk was part of the Executive Committee, or ExComm, that helped President John F. Kennedy find a way out of the Cuban Missile Crisis of 1962 (indeed, Rusk is sometimes credited with arranging the promised withdrawal of U.S. missiles in Turkey, a key component in the defusing of that crisis).

► And it was on Rusk’s watch that the United States aided exiles’ unsuccessful 1961 invasion of Castro’s Cuba. “The Bay of Pigs disaster was one hell of a way to close out my first hundred days as secretary of state,” he wrote at pages 216-17 of As I Saw It (1991), the memoir he co-authored with his son. According to the son, Richard Rusk (pp. 196-97):

‘Rusk privately opposed the abortive Bay of Pigs operation. “I knew it wouldn’t work … But I served President Kennedy very badly. … I didn’t oppose it forcefully. … I was too busy sitting on my little post of responsibility.”‘

Dean Rusk wrote of his surprise over eventual disclosures of CIA efforts to assassinate Castro. He did cite other plots, of which he was apprised (p. 216):

‘Following the Bay of Pigs, the CIA tried harassing Cuba with various dirty tricks. I vetoed some as being foolish or unproductive. For example, the CIA once proposed contaminating shipments of Cuban sugar with a chemical to render the sugar inedible by the time it reached foreign ports. I thought that was just damned nonsense.’

On other countries’ reaction to the Bay of Pigs debacle, Dean Rusk wrote (p. 216):

‘I have always marveled that the Bay of Pigs fiasco did not inflict greater damage upon the Kennedy administration than it did. We survived that episode better than we had any right to expect. The international community and the United Nations could have really nailed the United States for violating international law. But most governments were sorry that we had failed; regret, not outrage, seemed to mark their reaction.’

This instance of “violating international law” had at least one consequence, Rusk wrote: in the year following the Bay of Pigs, the Kennedy administration placed a greater emphasis on constructing “[t]he legal case” supporting the U.S. response to the Cuban Missile Crisis (p. 233).

Concluding his memoir, Dean Rusk suggested that the Cold War was nearing its end, that “events now seem to be moving toward the West” (p. 616). More than 2 decades have passed since his words were published. It is only now, with President Barack Obama’s announcement on Cuba yesterday, that there appears to be movement toward the Cold War’s final thaw.

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:

Today’s the 50th anniversary of “Daisy.” That’s the 60-minute TV advertisement in which a toddler‘s miscount to 10 morphs into a military backcount to 1; simultaneously, her right eye shapeshifts into a mushroom cloud whose explosion wreaks devastation. (Video above.)

“Daisy” helped propel President Lyndon B. Johnson, who had taken office after the assassination of John F. Kennedy less than a year earlier, to a landslide November 1964 win against GOP challenger Barry Goldwater. It’s worth noting for more than that, though. One wonders, for instance, whether the powerful symbolism inspired later Flower Power protests (protests against the escalation of Vietnam, undertaken by post-election President Johnson), not to mention masthead_posterLorraine Schneider’s iconic sunflower poster (right).

Even filtered through the lens of campaign bluster, moreover, the core sentence in “Daisy” has contemporary relevance:

‘We must either love each other, or we must die.’

san_quentin_death_chamber

California’s capital punishment system has just been ruled unconstitutional.

Holding that the system violated the 8th Amendment to the U.S. Constitution was U.S. District Court Judge Cormac J. Carney, whom President George W. Bush appointed to the federal bench in 2003. According to a Los Angeles Times report, he becomes the 1st federal judge to rule against the state’s system, and also the 1st to hold that systemic delay may constitute cruel and unusual punishment.

Judge Carney set out his reasoning clearly and concisely in today’s 29-page ruling in Jones v. Chappell. In turn, the decision:

► Traced the tangled series of delays that is the state’s system. (Prior posts on that system here, here, and here.) Only 13 of the more than 900 persons whom California jurors have sentenced to death since 1978 have been executed, Judge Carney wrote. The typical time between sentence and execution is 25 years. The judge thus renamed the sentence (his emphasis): “life in prison, with the remote possibility of death.”

► Reiterated U.S. Supreme Court Justice Stewart Potter’s insistence in Furman v. Georgia, the 1972 decision that set in motion a 4-year moratorium on the death penalty, that the Constitution

‘quite simply cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed.’

The ruling recognized that the Court, in Gregg v. Georgia (1976), permitted states to reinstate modified death penalty systems. Even so, Judge Carney wrote:

In the 40 years since Furman, the Supreme Court has never retreated from that fundamental principle.

► Applied the principle to the case at hand, ruling that California’s system is so arbitrary as to serve no proper penological purpose. The judge focused not just on the defendant who must endure a condemned life on death row, but also on jurors who must go through “horrific” evidentiary proceedings to no ultimate end, on victims and  survivors denied “some semblance of moral and emotional closure,” and on “the citizens of the State” of California, who must endure the broken “promise” of retribution that accompanies the imposition of a death sentence.

California Attorney General Kamala D. Harris was reported to be considering the state’s next move in this litigation.

 

kivu“[F]or targeting children in situations of armed conflict, including through killing, rape, abduction and forced displacement,” yet another Congolese armed group has been added to the United States’ sanctions list.

On Tuesday, the Department of the Treasury announced sanctions against the Allied Democratic Forces, which it described as a group of “1,200 to 1,500 armed fighters” that in 2013 began attacking civilians in North Kivu, a province of the Democratic Republic of the Congo that borders Uganda. (credit for (c) Associated Press map) The militia’s actions against children reportedly include:

  • “brutal attacks on women and children in several villages, including acts of beheading, mutilation, and rape”
  • “kidnapping as well as recruiting children, allegedly as young as 10 years old, to serve as child soldiers against the Ugandan government”

As this list of all Treasury sanctions indicates, the Allied Democratic Forces join many other designated groups and individuals; to name a few, persons pursued (with varying results) via the International Criminal Court Situation in the Democratic Republic of the Congo, such as Germain Katanga, Thomas Lubanga Dyilo, Callixte Mbarushimana, Sylvestre Mudacumura, Mathieu Ngudjolo Chui, and Bosco Ntaganda. All were put on the list following the implementation of a decree signed by President George W. Bush in 2006, Executive Order 13413, “Blocking Property of Certain Persons Contributing to the Conflict in the Democratic Republic of Congo.” Section 1(a)(ii)(D) of that Executive Order expressly calls for sanctions against persons whom the Secretaries of State and the Treasury determine

to have committed serious violations of international law involving the targeting of children in situations of armed conflict in the Democratic Republic of the Congo, including killing and maiming, sexual violence, abduction, and forced displacement ….

Taken in conjunction with Monday’s U.N. Security Council imposition of a travel ban and assets freeze against the group – sanctions that also cite the group’s offenses against children – the U.S. sanctions will block “[a]ll property and interests in property in the United States or in the possession or control of U.S. persons in which the ADF has an interest”; moreover, “U.S. persons are generally prohibited from engaging in transactions with the ADF.”

boscoPower politics managed to control the direction of the International Criminal Court in its 1st decade, but whether that dynamic will persist over the long haul remains to be seen: so concludes David Bosco in his superb book, Rough Justice: The International Criminal Court in a World of Power Politics (Oxford University Press 2014).

Bosco is an Assistant Professor of International Politics at American University in Washington, D.C., so it’s no surprise that Rough Justice theorizes a range of ways that relevant players might have behaved in the wake of the 1998 adoption by 120 states of the ICC’s Rome Statute. Of interest to him is the response of powerful states – in particular, the 5 permanent members of the U.N. Security Council – when confronted with the ICC, an institution whose formal rules give considerable power to weak states. Bosco posits that the major powers could have taken, to greater or lesser degrees, any of three paths:

  1. Marginalization, aimed to “ensure that the court remains weak and ultimately fades into irrelevance.” (p. 13)
  2. Control, not only “to keep the court within its mandate but also to ensure that the court does not interfere with important state political or diplomatic interests.” (p. 15)
  3. Acceptance, an embrace of the court likely brought on by pressure from other states and nongovernmental organizations, as well as the court’s own cultivation of a deservedly good reputation. (p. 16)

In the end, Bosco determines that marginalizing tactics by the court’s most vocal early opponent, the United States, fell short of their goal. But then, Bosco argues, the U.S. government and some other states succeeded in exercising control, by means including narrowly defined Security Council referrals and “informal signaling” of state preferences. (Some of my writings on issues Bosco raises may be found here, here, and here.) Looking at how actors within the ICC responded, Bosco finds that Prosecutor Luis Moreno-Ocampo took a “strategic” approach to his choice of situations. And Bosco asks whether Prosecutor Fatou Bensouda, who took over in 2012, will “chart a dramatically different course.” (pp. 181-87) (By way of beginning an answer, the new Prosecutor has revisited some policies subject to Bosco’s critique; reversing a 2006 decision by her predecessor (p. 119), for example, Bensouda reopened a preliminary investigation into allegations of abuse during the 2003-08 period of war in Iraq.)

These theoretical chapters bookend an outstanding chronology of the ICC’s origins and early years. Even close followers of post-Cold War efforts at international criminal justice will learn from Bosco’s concise, well-told, and exhaustively researched account.

Following a raft of ratifications this week, the Arms Trade Treaty is 4/5 of the way toward entry into force.

Paying-the-priceDepositing their instruments of ratification on Tuesday were Australia, Austria, Belgium, Burkina Faso, Jamaica, Luxembourg, Saint Vincent and the Grenadines, and Samoa. They join 30 other countries that’ve become full members of the treaty since its adoption by the U.N. General Assembly on April 2, 2013. Ten more joinders are needed for the treaty to take effect.

In its 28 articles, the Arms Trade Treaty provides for states parties’ regulation of traffic in a range of arms, from battle tanks to light weapons. (Prior posts available here.) As indicated by the Control Arms poster above, regulating the latter is a principal aim of treaty proponents. (image credit)

Among the 5 permanent members of the U.N. Security Council (among them major arms-exporting states), Britain and France have ratified. The United States signed last September, but the treaty has not been presented to the Senate for consideration. China has not signed; Deutsche Welle reported this week:

‘China has indicated that it would consider signing if the US ratified, which is unlikely to happen.’

And in late May, the Voice of Russia reported that the Russian Federation would not sign, for the following reasons:

‘Russia considers this document to be not completely thought through. It also discriminates against the Russian military-industrial complex.’