History of International Law

“Rules of War” & 1882 US joinder of 1864 Geneva Convention, 150 years old today

/ Diane Marie Amann / Leave a comment

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.

(Cross-posted from Diane Marie Amann)

In World War I video, timeless scenes of armed conflict’s tragic consequences

/ Diane Marie Amann / Leave a comment

refugeechildrenww1Seldom do we see footage made during the 20th C.’s 1st global conflict. That fact makes especially valuable these images, from a 3-minute video of scenes from World War I, which began 100 years ago this summer and continued for another 4 years thereafter.medalgirlww1

 

 

As one might expect, the video includes battle scenes, trench warfare, aerial combat, and torpedoes fired at sea. There are images of bombed-out homes and bereft refugees, evidence of war’s effects refugeecoldww1on civilians. And as these screenshots indicate, there are scenes of children and war: Children made to play the part of soldiers. Children stunted by starvation. Child refugees, shivering in an unsheltered winter. childrenww1

Kudos to European Film Gateway and the United Nations for this sad reminder of how little some things change.

 

(Cross-posted from Diane Marie Amann)

Signs of international law and foreign policy mark a European journey

/ Diane Marie Amann / Leave a comment

map_ALAACROSS THE POND – An array of signage has marked my 1/2-finished 2-week journey in Europe.

The first is at left. It’s a favorite feature of transatlantic flying these days, the seatback map by which the white silhouette of a jet tells passengers where they are, where they’ve been, and where they’re headed. This one especially caught the eye because of the markings accompanied by years. No, that’s not Egypt relocated to France’s western coast, but rather an indication of where a ship named Egypt sank in 1922. Many such shipwrecks were noted along the way: of historical significance to be sure is Lusitania 1915 to the left. But for the international lawyer, perhaps greatest interest is Alabama 1864, in the channel between London and Bayeux. As a Confederate ship outfitted by the British, the Alabama plied European waters to harass Union ships. That behavior and its sinking gave rise to a landmark dispute settlement proceeding known as The Alabama Claims. In the words of the U.S. Department of State:
The peaceful resolution of these claims seven years after the war ended set an important precedent for solving serious international disputes through arbitration, and laid the foundation for greatly improved relations between Britain and the United States.

LNS_genevaONUThe early years of international law also surface in the emblem at right, located in what is now the Geneva, Switzerland, headquarters of the United Nations. The premises initially housed the 1st effort to construct a global intergovernmental organization aimed at promoting peace and security. Founded just after World War I, that organization did not survive the tragedy of World War II. Yet its legacy lives on not only in its successor organization, but also in architectural flourishes like this bilingual monogram: “LNS,” for “League of Nations / Société des Nations.”

The final set of signs, below, were found in a grand assembly room of the U.N. Geneva building. Organizers were preparing for a large gathering related to the World Health Organization – hence the caduceus affixed to the golden U.N. emblem above the dais. But the most interesting signs are those in the foreground. It had not occurred to me that the 2 entities recognized as U.N. nonmember states would be so situated at such meetings. Not the least because of the imminent journey of Pope Francis to the Middle East, the notion of delegates from entities as different as the Holy See and Palestine sitting side by side both comforts and fascinates.who_stsiege(Cross-posted from Diane Marie Amann)

Finding the Founders: Pioneers of Women in the Law

/ Shana Tabak / 1 Comment

In 1898, women lawyers in the District of Columbia could argue before a jury, yet could not serve on one. Finding the Founders, April 14 They made legal arguments in court, but could not yet vote. It was in this context that two lawyers, Ellen Spencer Mussey and Emma Gillett, founded the Women’s Law Class in 1896, with an enrollment of three. As demand grew for an educational institution that would train women who were otherwise excluded from legal academia, in 1898 the Washington College of Law was incorporated, the first law school in the United States founded by women.

On Monday April 14, 2014 from 2-5pm American University’s Washington College of Law hosts a discussion on the accomplishments of early pioneers advocating for gender equality within the law, including those of the school’s founders, Mussey and Gillett.    If you will be in D.C. that day, please join us for what promises to be an inspiring afternoon.  Registration and more details here.

And for some additional inspiration from women who led the charge for equal rights, visit  “Her Hat Was in the Ring!”   This blog, co-edited by Jill Norgren, Wendy Chmielewski and Kristen Gwinn-Becker, lauds the political aspirations of women who ran for political office in the U.S. pre-1920, when the Nineteenth Amendment to the U.S. Constitution was ratified, extending the right of full suffrage to all women across the United States. Talk about running against the odds.

Justice for Philippine Female Survivors of Enslavement during World War II

/ Anna v. Gall / Leave a comment

On 23 August the European Center for Constitutional and Human Rights (ECCHR), together with the Philippine Center for International Law (CenterLaw), submitted a petition to the Philippine Supreme Court. ECCHR is acting in support of legal proceedings initiated on behalf of Philippine survivors of sexual violence during the Second World War.
Since 2004 CenterLaw has represented 70 members of the Malaya Lolas organization (Malaya Lolas). All of them survived a siege of Mapanizque on 23 November 1944, when Japanese troops attacked the inhabitants of Barangay Mapanzique, Candaba, in the Philippines. The inhabitants of the village were beaten and murdered. The female inhabitants were transported to the Japanese military headquarters at Bahayna Pula, where they were subjected to beating, abuse and rape by Japanese soldiers. The Malaya Lolas are calling on the Philippine government to support them in their claims for compensation from Japan, which had ordered the establishment of “comfort stations” on the Philippines.
The Philippine Supreme Court turned down this appeal on 28 April 2010, once again denying the survivors the possibility of receiving formal compensation. In the context of a new hearing on the matter, ECCHR’s petition aims to emphasize the Philippine government’s obligations. It stresses that at the time of the Second World War, the systematic wartime enslavement of women constituted a violation of international law and that the survivors have a right to individual compensation.
In particular, the petition shall remind the Government that the prohibition of slavery is recognized as ius cogens in international and national legal instruments and by numerous scholars and courts. Therefore, ECCHR’s petition relies on international treaty and customary law provisions to demonstrate that the prohibition of sexual slavery had peremptory character prior to the establishment of sexual slavery facilities by Japan between 1932 and 1945.
The Government of the Philippines has a duty to examine the claims for compensation that have been brought by the survivors.
For more information see ECCHR

Challenges Facing the Future of International Criminal Law

/ Margaret Spicer / Leave a comment

The Southeastern Association of Law Schools (SEALS) hosted a panel at their most recent annual conference on “The Law and Politics of International Criminal Prosecutions,” moderated by yours truly, Speaking alongside fellow grrls Elizabeth Ludwin King and Milena Sterio, Professor Mark Drumbl drew from The Future of International Criminal Law and Transitional Justice, in Research Companion to International Criminal Law: Critical Perspectives (Ashgate, 2012) for his comments on several future challenges faced by international criminal law. We are happy to welcome Professor Drumbl back to International Law Grrls! 

1.     (Re-)nationalization: from technique to context. Although international criminal law is everywhere, in a sense, it is also nowhere. The emergence of international criminal law as impartial technique has come at the expense of context or area studies. The result is a tendency to sideline traditional approaches to dispute resolution and externalize justice from afflicted communities. Now that the institutions of international criminal law are deeply embedded in the fabric of international relations, however, they might develop the confidence to better welcome the local.  

2.     Diversity: from law to justice. Together with better incorporating the local, international criminal law would do well to open up to other accountability mechanisms. International criminal law’s predicate of individual culpability and incarceration may simply not be favored among all victim communities. Nor do all victim communities idealize the atrocity trial. Many such communities prefer other justice modalities, or an admixture thereof, including truth commissions, lustration, memorialization, public inquiries, community service, and traditional re-integrative practices. Moreover, the collective nature of mass atrocity is such that collective forms of responsibility that target states, organizations, non-state actors and corporations may more accurately reflect the etiology of the crime. A challenge for international criminal law is the need to foster other justice mechanisms.

3.     Scrutiny: from faith to science. The driving force behind international criminal law is faith. Criminal prosecution and incarceration for the guilty is claimed to promote a broad array of goals, including deterrence, retribution, collective reconciliation, re-integration, rehabilitation, expressivism, truth-telling and ending impunity. Are these goals being attained? Are they even attainable? We may believe so – but now that the institutions are up and running, the only way to actually find out is to move from faith to science and treat the institutions that enforce international criminal law as subjects of study in the same rigorous way domestic scholars treat domestic courts.  The challenge for international criminal law is to encourage such study and then absorb the lessons that quality research has to offer.

4.     Truths: from convenience to discomfort.  The atrocity trial pins blame on the vilest and most reprehensible individuals. In reality, however, atrocity is the product of many factors. Individual action, say of leaders, assuredly is one of these. But disappeared from the truth-telling process is the involvement (or nonfeasance) of state actors and international organizations. Also disappeared is the catalytic role of benefitting bystanders, transnational capital, institutional omissions and colonial histories. The truths told by international criminal law are convenient. They are manageable. By blaming the few for the annihilation of the many, these truths comfort. They do not embarrass too much or too many. But the origin of atrocity is much more discomfiting and discomforting. If we move into a mindset where the articulated truths of international criminal law become totalizing, and exclusionary of all others, then we achieve some justice, but we actually settle for a very crimped understanding of justice. One of the reasons why international criminal law may have limited transformative potential – despite its lofty rhetoric – is because it only scratches the surface of what justice actually entails following mass atrocity.

5.     Imagery: from essentialisms to nuance. International criminal law prefers simple images: innocent victim, evil oppressor and heroic humanitarian. In this regard, international criminal law mimics Makau Mutua and David Kennedy’s deconstruction of international human rights law. Yet the simplicity of these images belies the vacillating nature of human behaviour in the crucible of atrocity. Captors – after all – can capture, victims can victimize, and the abused can, in turn, abuse. Primo Levi painfully grappled – without resolution – with the ‘gray zone’, by which he refers to the fuzzy line between connivance and courage, and obsequiousness and morality, interstitially occupied by the kapos in the concentration camps.  International criminal law’s binary absolutes of guilt or innocence are ill-equipped to handle the frustrating subtlety of the human experience during episodes of collective violence. Moreover, in emphasizing the crushed status of victims – for example child soldiers – in order to justify onerous punishment for their oppressors, international criminal law may curry disabling stereotypes of those victims. 

In conclusion, although international criminal law remains the dominant accountability mechanism for episodes of mass atrocity, it awkwardly elucidates the provenance of collective violence and organisational massacre. Perhaps, then, international criminal law should recede and international post-conflict justice – a broader paradigm that includes diverse accountability modalities and a more sublime lexicon – should step up.

 

 

 

 

 

 

 

 

Human Rights and Planet Earth

/ Stephanie Farrior / 1 Comment

Global warming

This particular exchange caught my eye in the latest issue of the Human Rights Quarterly, in Thomas Krapf’s “The Last Witness to the Drafting Process of the Universal Declaration of Human Rights: Interview with Stéphane Frédéric Hessel.”

Krapf: Did the authors of the Declaration, as they were working on the text, have any awareness that they might be missing opportunities of obtaining agreement on important issues?

Hessel: To begin with, let’s say that at the time there was a problem which was not even taken up. This is the issue of man’s relating to the planet; the issue, which today, we call environmental problems. Today, these have become extremely important. At that time they were not taken into account. It was believed that the resources of the earth could be exploited indefinitely, that it would be possible to continue developing all forms of growth without running the risk of many failures. Today, we know that these failures are looming, and that they are already very close at hand. Possibly, it will not be possible to live on this earth.

HRQ Vol. 35, No. 3, August 2013, pp. 753-768

For additional commentary on environmental devastation from a human rights perspective, see Dr. Joel  Filartiga’s eloquent remarks quoted in the IntLawGrrl post Dr. Filartiga, torture and the environment.

At Peace Palace, the Women of the ICJ

/ Diane Marie Amann / 2 Comments

Women of the ICJ2
Further to Cymie Payne’s excellent IntLawGrrls post regarding ongoing oral hearings before the International Court of Justice in Whaling in the Antarctic (Australia v. Japan: New Zealand intervening) (webcasts and transcripts available here; prior post here):

Cymie cites among the “great international litigators” on the case Laurence Boisson de Chazournes (below), a professor of international law at the University of Geneva. Also well worth mentioning, of course, is the work done on this case by the jurists depicted above – the Women of the ICJ. ICJ Judge Xue Hanqin of China stands at left. At right is ICJ Judge Julia Sebutinde of Uganda; next to her, ICJ Judge Joan E. Donoghue of the United States. laurenceBetween Donoghue and Xue is ICJ Judge ad hoc Hilary Charlesworth, an Australian National University international law professor (not to mention an IntLawGrrls contributor). They flank the portrait of the ICJ’s first woman member, Rosalyn Higgins of Great Britain. She began service as an ICJ Judge in 1995– four years after the publications of a milestone article in which Charlesworth et al. decried the absence of women on that bench. Higgins was the ICJ’s President from 2006 until her retirement in 2009.

(With thanks to Don Anton for forwarding the featured group photo. Cross-posted from Diane Marie Amann.)

Debating Human Rights History

/ Jaya Ramji-Nogales / 3 Comments

slave tradeIn 2010, Samuel Moyn published “The Last Utopia: Human Rights in History“, a book that provoked its readers to critically engage with questions about when human rights emerged as an agenda on the international political scene.  Moyn’s suggestion that this was a strikingly recent development (dating to 1977) raised deeper questions about the politics underlying human rights and its successes in displacing alternate utopian visions.  Last year, Moyn published a book review of IntLawGrrl contributor Jenny Martinez‘s “The Slave Trade and the Origins of International Human Rights Law” and Kathryn Sikkink‘s “The Justice Cascade: How Human Rights Prosecutions Are Changing World Politics“, criticizing both books for insufficiently acknowledging the limitations of international human rights law as an avenue for social and political reform.

This month’s Harvard Law Review contains two new and worthwhile contributions to the debate.  Philip Alston begins with a review of Jenny Martinez’s book, noting the importance of determining the origins of today’s human rights systemjustice cascade as well as the lack of consensus around the answer to that question.   Alston notes the ways in which Martinez’s book contradicts Moyn’s thesis, situating each author within a typography of historiographical debates.   He critiques both, noting that they present different definitions of human rights that carry buried analytical assumptions, and suggests that a meaningful history should recognize that human rights is a polycentric enterprise.  In other words, historians of human rights must examine ideas, social movements, legal traditions, and institutions in order to understand where human rights came from and where it is headed.

Jenny Martinez responds to Alston’s review, presenting a more nuanced view of her causal arguments than her critics, and taking on Moyn in the process.   She agrees with Alston that human rights is polycentric, and suggests that Moyn’s definition of human rights leaves out important aspects of the larger picture.  Martinez defends herself against claims that a pro-human rights bias infuses her work, and argues that an accurate account of human rights prior to 1977 is crucial in understanding the role of international law today and drawing lessons for current legal institutions.

The books and articles are worth reading for the rich factual analysis alone.  But there’s more to human rights history than that.  This is one of the most provocative debates in recent years about the analytical framework through which we understand human rights.  As Alston notes, “[t]here is a struggle for the soul of the human rights movement, and it is being waged in large part through the proxy of genealogy.”

(hat tip to Jacob Katz Cogan, whose wonderful International Law Reporter alerted me to the Alston and Martinez articles; cross-posted on Concurring Opinions)

Teachable Moments, Grotian Moment: May 18 and The Peace Palace Centenary

/ Hope Elizabeth May / 1 Comment

  international_court_of_justice600Within the field of psychology, a revolutionary paradigm shift known as ‘positive psychology’ is redirecting the attention of researchers to the positive.  Shifting away from the lugubrious ‘DSM IV mindset’ which focuses on disease and illness, the new paradigm turns instead towards inspiring stories of human flourishing.  In the new paradigm, focus on e.g., the connection between addiction and poverty is replaced by a focus on character traits – such as resilience and optimism – that have enabled some to transcend their inauspicious conditions.  The time is ripe for discourse on International Justice (IJ) to experience a similar paradigm shift.

Naturally, discourse on IJ tends to be dominated by stories of atrocity.  IJ is concerned with the development and implementation of mechanisms (criminal prosecutions, truth commissions) aimed at redressing state sponsored horrors.  The hope is that these mechanisms can help to heal the wounds inflicted by such outrageous harms and, ultimately, construct a substantive notion of human dignity that is realized both in state practice and in  ‘the small places close to home’.  It is in this domain that we encounter the meme of ‘Truth and Memory’ (T/M).   In its present mode, IJ tends to interpret T/M through a narrow lens, focusing on the abuses, violations and the public’s understanding of these harms.  T/M initiatives are concerned with deepening the public’s understanding (Memory) by preserving and communicating (Truth) about human rights violations, usually via state-sponsored truth commissions.

As important as it is to note, name and record such violations, it is imperative for IJ to link its concern with Truth and Memory to positive stories of accomplishment and hope.  A rich source of inspiration for IJ is the 19th century peace movement which led to the Hague Peace Conferences of 1899 and 1907.  Why?  These conferences marked the first time that the international community and an organized, mobilized public worked together to build an international institution aimed at ending war: The Permanent Court of Arbitration.  This achievement was so extraordinary that Andrew Carnegie, a private U.S. citizen, donated 1.5 million dollars to give, in his words, this ‘High Court of Humanity’ a proper, symbolic home.  Known today as ‘The Peace Palace’, this poignant symbol of optimism and faith in humanity is located at 2 Carnegieplein (Carnegie Place) in The Hague, Netherlands.  Unfortunately, few people know this story.  Consequently, few understand this story about how the U.S. government worked with the private sector and with educators to realize –for a moment- the pacifist vision behind the 1899 Hague Peace Conference.  Nor is it widely known that the 1899 Hague Peace Conference was so momentous to the U.S. that it inspired a state-sponsored program of peace education.  Inspiring stories such as these should be part of our ‘collective memory’ for they, too, have a role to play in fostering true healing and, possibly, the construction of a substantive notion of human dignity that is realized in both state practice and in the small places close to home.

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