Legal primer for an ex-exec aide

'Let me just say that President Bush was very clear that he wanted to do everything he could to protect the country. After September 11, we wanted to protect the country. But he was also very clear that we would do nothing, nothing, that was against the law or against our obligations internationally. So the president was only willing to authorize policies that were legal in order to protect the country.'

So said Condoleezza Rice, formerly the Secretary of State and National Security Advisor to President George W. Bush, in response to a question posed by a 4th grader at a Washington, D.C., school. The comment followed fast upon Rice's defense of self in response to students at Stanford, the university to which Rice has returned (full video below, (c) Stanford student Reyna Garcia):

'The president instructed us that nothing we would do would be outside of our obligations, legal obligations, under the Convention Against Torture.'
....
'I just said -- the United States was told, we were told, nothing that violates our obligations under the Convention Against Torture. And so, by definition, if it was authorized by the president, it did not violate our obligations under the Convention Against Torture.'

Worth a reread at this juncture: old chestnuts, like Marbury v. Madison (1803) and the Steel Seizure Case (1952), which establish that executive action must comply with the laws of the United States (including, to name just 2 provisions, the 4th Amendment and the Due Process Clause of the 5th Amendment). Then there's the Constitution's Supremacy Clause. It makes clear that "all Treaties made ... under the Authority of the United States" -- CAT, for instance -- "shall be the supreme Law of the Land." And don't forget Cooper v. Aaron (1958), which holds that it's the Justices of the U.S. Supreme Court, and not executive officials, who have the final say on such questions. For good measure, United States v. Nixon (1974) is worth a look.
Sandwiched in between Rice's latter 2 quotes above was this additional self-defense:

'So that's -- and by the way, I didn't authorize anything. I conveyed the authorization of the administration to the agency. ... That's what I did.'

One scurries to reread 18 U.S.C. §§ 2 and 371.

'Nuff said

(Taking context-optional note of thought-provoking quotes)

'She has missed unique opportunities,' said Rep. Frank R. Wolf (R-Va.), one of the leading congressional voices on human rights. Secretary of State Condoleezza 'Rice started out strong and ended weak,' he said. 'But Secretary Clinton is starting out weak.'

-- a story by Rice biographer and diplomatic correspondent Glenn Kessler, in yesterday's Washington Post.

Secretary of State Hillary Clinton begged to differ:

'A mutual and collective commitment to human rights is [as] important to bettering our world as our efforts on security, global economics, energy, climate change and other pressing issues,' Clinton told reporters after meeting
with Chinese Foreign Minister Yang Jiechi at the State Department. She said she had raised with Yang the issue of Tibet and a resumption of a U.S.-China human rights dialogue.
'The Obama administration is absolutely committed to a robust, comprehensive human rights agenda," she said. "We're going to look for ways where we can be effective, where we can actually produce outcomes that will matter in the lives of people who are struggling for their rights to be full participants in their societies.'

(credit for State Department photo of February 21, 2009, press conference by Clinton and Yang, in Beijing)

On February 14

On this day in...
... 2007, as duly noted by siblings we owe debts of gratitude – among them Legal History Blog, Opinio Juris, Concurring Opinions, and Anupam Chander – IntLawGrrls began a very short online pregnancy.
We'd announced that we were expecting a few days earlier, via this Heartfelt Hello:

Our world is a jumble of peoples, a mix of culture and custom, a marketplace of markets as well as ideas. We come together in amazing ways, yet clash in ways that bring destruction and dismay. Women now have a hand in our world’s affairs: think Albright and Arbour, del Ponte and Higgins, Ginsburg and Rice. Yet our voices remain faint, in backrooms and in the blogosphere. IntLawGrrls – women who teach and work in international law, policy and practice – hope to change all that. We embrace foremothers' names to encourage crisp commentary, delivered at times with a dash of sass. We welcome replies, and we look forward to fresh dialogue on the matters of the day.
It's our world, after all.

In gestation beginning February 14, 2007
Due date March 3, 2007 – Grrls’ Day in Japan

Our "on this day" feature thus enters its 3d year this Valentine's Day; accordingly, from now on we'll note the prior years' posts at the day's end. Those for February 14 are here and here.

On December 5

On this day in ...

... 1996 (a dozen years ago), President Bill Clinton announced he would nominate Madeleine Albright, to be U.S. Secretary of State in his 2d term. Then 59 years old and serving as U.S. Ambassador to the United Nations, she would be sworn in exactly 7 weeks later. Albright, about whom we've posted here, thus became the 64th person and the 1st woman to hold the United States' top diplomatic post. This week President-Elect Barack Obama tapped his primary-season rival, Sen. Hillary Clinton (D-N.Y.), to be his Secretary of State. When sworn in she'll be the 3d woman to hold the job, succeeding current Secretary Condoleezza Rice. Clinton is, of course, the wife of the President who'd chosen Albright. (credit for 1998 photo of Secretary Albright and President Clinton)

... 2008 (today), is marked the 22d annual International Volunteer Day for Economic and Social Development, proclaimed by the U.N. General Assembly by this 1985 resolution in an effort to encourage pro bono service, by people in all walks of life, throughout the world.

A gender-balanced natsec sextet

A photo montage is worth a whole lot of words: For the 1st time in history, the President's national security leadership is about to comprise an equal number of women and men. (photo credit)

Yesterday President-Elect Barack Obama announced that he'd seek the Senate's confirmation of the 6 persons above as his key advisors on issues of national and global importance.

Most media attention has been paid to Obama's appointment of his chief rival for the Democratic nomination, U.S. Sen. Hillary Clinton (D-N.Y.) (top row, middle) to be Secretary of State. It's an audacious, inspired choice. On account of both her years in the Senate and her years as 1st Lady, Clinton's been to and met with many of the leaders who're soon to be the object of her diplomatic endeavors. At home, it must be noted, Clinton's immediate (Condoleezza Rice) and recent (Madeleine Albright) predecessors are women. The same may be said of counterparts abroad: today women serve as the Foreign Minister in 24 countries besides the United States.

Among those slated to join Clinton in the Cabinet is Gov. Janet Napolitano (D-Ariz.) (bottom row, left), tapped to be the new Secretary of Homeland Security. As we've posted, she's also served as U.S. Attorney for the District of Arizona and as Arizona's Attorney General. She'll inherit the daunting task of bringing to maturation a department birthed post-9/11 as an amalgamation of agencies in charge of counterterrorism, disaster relief, and border control, among many other bailiwicks.

Dr. Susan E. Rice (bottom row, right) is set to become U.S. Ambassador to the United Nations, thus heading the U.S. Mission to the United Nations in New York. Rice will be the 3d American woman to hold the post; the others were Madeleine Albright and Jeane J. Kirkpatrick. And she'll follow a legion of women who've been their country's chief U.N. representative. During the tenure of U.S. President Bill Clinton, Rice served both in the State Department, as U.S. Assistant Secretary of State for African Affairs, and at the White House, as the National Security

Council's Special Assistant to the President and Senior Director for African Affairs and as Director for International Organizations and Peacekeeping. As we've posted, she was a key foreign policy advisor to Obama during his campaign. A onetime Rhodes Scholar who earned her Ph.D. in international relations from Oxford University, Rice has also been a Senior Fellow in the Foreign Policy and Global Economy and Development Programs at the Brookings Institution.

Rounding out the natsec team: Eric Holder (top row, left), nominated to be Attorney General; retired U.S. Marine Corps General Jim Jones (top row, right), to be National Security Advisor; and Dr. Robert Gates (bottom row, center), the subject of another IntLawGrrls post today, slated to remain as Secretary of Defense.

Security Council: rape is a “weapon of war”

The U.N. Security Council has unanimously adopted a resolution declaring rape to be a weapon of war, a development it's my honor to feature in this guest post, as part of a dialogue today with IntLawGrrl Beth Van Schaack.
The resolution was passed a week ago today, during a session chaired by Condoleezza Rice (right), U.S. Secretary of State, and attended by several other women government officials -- including Rama Yade (top left), France's Minister for Foreign Affairs and Human Rights, and Rt. Hon. Baroness Patricia Scotland (below right), the United Kingdom's Attorney General.
The move comes in response to reports that thousands of women are being raped and sexually abused amid conflicts from Burma to Sudan. Last year, the Security Council rejected a similar measure after several states -- including China and Russia -- argued that rape was a lamentable by-product of war that fell short of constituting a threat to international peace and security.
Notable characteristics of last week’s Resolution 1820 include:
►Recognition of rape and other forms of sexual violence as a war crime, an acknowledgement of several important international criminal law precedents.
►Recognition of sexual violence amid armed conflict as an impediment to the restoration of “international peace and security.” This could lay the groundwork for future Security Council response to widespread rape and sexual violence under Chapter VII of the U.N Charter.
►“Zero tolerance” for sexual violence perpetrated by U.N. peacekeepers.
►Recognition of the under-representation of women in peacebuilding operations and urging of the Secretary General and Special Envoys to “facilitate the equal and full participation of women at decision-making levels.” Out of the UN’s 17 active peacekeeping operations, only one is headed by a woman: Ellen Margrethe Løj of Denmark, Special Representative of the Secretary General to the UN Mission in Liberia (left).
While much more political will and donor commitment are needed to realize the goals of Resolution 1820, it represents a step forward in the push to eradicate the endemic rape and sexual violence that accompanies modern-day conflict.

The Security Council Gets It

At the end of last week, the U.N. Security Council (left and below right) unanimously adopted Resolution 1820, an historic resolution addressed to women, peace & security. As guest blogger Amy Senier describes above, this initiative was sponsored and chaired by U.S. Secretary of State Condoleezza Rice (below right). The last time the Security Council comprehensively addressed women, peace and security was eight years ago, with Security Council Resolution 1325. That resolution, for the first time, systematically considered how conflict affects women and children, recognized women's role in preventing and resolving conflict, called for the equal participation and full involvement of women in efforts to maintain peace and security, and advocated a gender perspective in peacekeeping. Resolution 1820 reiterates and expands upon these concerns.

The Resolution recounts how violence against women in situations of armed conflict has reached pandemic proportions and “appalling levels of brutality.” Indeed, Maj. Gen. Patrick Cammaert, a former U.N. peacekeeping commander, testified before the Council that

It has probably become more dangerous to be a woman than a soldier in an armed conflict.

For example, a World Health Organization survey of women in Liberia has revealed that 75 percent of women surveyed had been raped during the country’s civil war. (Photo below left is a clinic for women in Liberia that regularly sees rape victims--photo credit).
For most of human history, the rape and sexual abuse of women associated with the enemy was an expected spoil, inevitable by-product, or legitimate tactic of war. Even today, when such conduct is clearly unlawful under international humanitarian law, violence against women is often employed as a deliberate “tactic of war to humiliate, dominate, instil fear in, disperse and/or forcibly relocate civilian members of a community or ethnic group,” as noted by the Resolution. The presence of peacekeepers may actually increase the danger to women, and the Council's Resolution specifically condemned abuses and exploitation of women by U.N. peacekeeping forces.


A key observation contained in the resolution confirmed that sexual violence against women

can significantly exacerbate situations of armed conflict and may impede the restoration of international peace and security.

Accordingly, the Council acknowledged that

effective steps to prevent and respond to such acts of sexual violence can significantly contribute to the maintenance of international peace and security.

Notwithstanding these key observations, China, Russia, Indonesia and Vietnam apparently all raised the question of whether sexual violence in armed conflict is a matter for the Security Council, whose mandate is to address threats to and breaches of international peace.
As has been demonstrated by such landmark cases as Akayesu (ICTR), Furundžija (ICTY), and Kunarac (ICTY), rape and other forms of sexual violence can constitute a war crime, a crime against humanity, and a predicate act of genocide. The Security Council stressed the importance of ending impunity for such acts and ensuring women and children equal protection under the law and equal access to justice. To this end, the Council called on states to exclude sexual violence crimes from any amnesty provisions promulgated in conflict resolution processes. The Council also encouraged states to structure their judicial and health systems to provide sustainable support to victims of sexual violence in armed conflict and post-conflict situations. The Council threatened to consider "targeted and graduated measures" in its sanctions regimes against parties employing sexual violence in situations of armed conflict.

It may be tempting to critique the Resolution as just one more example of toothless rhetoric emerging from the United Nations. It has the potential, however, to have real consequences when it comes to ensuring that acts of sexual violence are prosecuted before the International Criminal Court and other international and domestic tribunals. The ICC Statute in particular contains a number of "gravity" clauses that could be invoked to limit the jurisdiction of the Court or influence prosecutorial discretion. For example, Article 1 indicates that the Court is empowered to exercise its jurisdiction over persons for "the most serious crimes of international concern." Likewise, Article 8(1) indicates the Court has jurisdiction over war crimes "in particular when committed as part of a plan or policy or a part of a large-scale commission of such crimes." To convict an individual for war crimes for criminal acts committed during a time of war, the prosecutor must demonstrate some nexus with the armed conflict.
By recognizing that acts of sexual violence are serious, exacerbate armed conflict, and are often the result of a deliberate policy to subjugate an enemy community, Resolution 1820 will dispel arguments that sexual violence is a private or peripheral matter, unconnected to public events of international importance.

Resolution 1820 also requests the Secretary-General to submit a report a year from now on the implementation of this resolution in the context of situations on the Council's agenda.
So, stay tuned...

...and counting..

(Occasional sobering thoughts.) It comes as scant surprise to read media analyses that attribute the Middle East talks opening today in Annapolis, Maryland -- notwithstanding officials' protestations to the contrary -- as the Bush Administration's "11th-hour effort to forge a legacy other than the one left by the Iraq war." (Said to be especially "determined to fashion a legacy in the Middle East that extends beyond the war in Iraq" is Secretary of State Condoleezza Rice.)

Bad news for the administration are governmental changes in Poland and Australia, where new leaders have pledged to withdraw their troops from what once was called the coalition of the willing in Iraq.

Seemingly good news -- of a "plunge" in deaths of Iraqi civilians -- is tempered by analysis of the likely reason for the switch: not only "tactical successes" from the "U.S. troop buildup," known popularly as "the surge," but also "the lasting impact of waves of sectarian death squad killings, car bombings and neighborhood purges." In other words, past killings've shrunk the number of potential civilian victims.

Meanwhile, another surge has been noted; that is an increase in the number of homeless veterans, some veterans of this Iraq war, now living on U.S. streets. Not seen here, though, are many Iraqi refugees, as the United States continues to admit far fewer refugees than promised.

Little good news from Afghanistan, where 2007 already has become the "deadliest" year for U.S. troops, and where U.S. officials can cite little more than "limited progress" since the onset of a counterassault in 2001.

With those sobering thoughts in mind, here's the casualty count this last month: according to Iraq Body Count, between 77,333 and 84,250 Iraqi women, children, and men had died in the conflict -- an increase of 1,735 to 1,881 deaths in the last 4 weeks. By the U.S. Defense Department's figures, meanwhile, 3,876 American servicemembers have been killed through yesterday. Total coalition fatalities: 4,182 persons. (That's 42 servicemember deaths in 4 weeks, all but 3 of them Americans.) The Department stated that 28,431 servicemembers have been wounded, and that 8,580 of them required medical air transport. (We've always been dubious of these wounded figures, and recent news that Pentagon figures exclude 20,000 brain injuries suffered by servicemembers adds to that concern.)

Military casualties in the conflict in Afghanistan stand at 469 Americans and 269 other coalition servicemembers, an increase of 19 and 10, respectively, in the last 4 weeks.

On November 14, ...

... 1934, Catherine McGuinness was born in Belfast. A member of the Irish Senate from 1979 to 1987, she became a judge in 1993, progressing by 2000 to the position of Justice of Ireland's Supreme Court. McGuinness resigned from the Court a year ago, but remains President of Ireland's Law Reform Commission.
... 1947 (60 years ago today), the U.N. General Assembly adopted a resolution recognizing Korea's claim to independence. To further pursuit of that claim, it established a U.N. Temporary Commission on Korea, and recommended that elections be held throughout the country in March 1948.
... 1954, Condoleezza Rice was born in Birmingham, Alabama. Following service as Stanford's Provost, Dr. Rice became National Security Adviser to U.S. President George W. Bush in 2001. She has been Secretary of State since 2005.

On November 11, ...

... 1970, the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, which had been concluded 2 years earlier in New York, entered into force. Today the treaty, which would expose persons suspected of enumerated international crimes to the risk of prosecution no matter how old the alleged incident, has 51 states parties. Among these is found only 1 of the 5 permanent members of the U.N. Security Council -- the Russian Federation.
... 1946, U.S. Rep. Corrine Brown (D-Fla.) was born in Jacksonville, Florida.
... 1940, U.S. Sen. Barbara Boxer (D-Cal.) was born in Brooklyn, New York. She's pictured at left on the Senate floor, outlining her opposition to the nomination of then-National Security Advisor Condoleezza Rice to become Secretary of State. In January 2005 Rice was confirmed by the full Senate; Boxer was among 13 Senators who voted "nay."
... 1918, at the 11th hour of the 11th day of the 11th month, as schoolchildren learn, an armistice took effect, ending World War I on its western front, though sporadic violence continued for a time in the east. The ceasefire agreement'd been signed earlier in the day by the Axis power, Germany, and Allied powers, Britain, France, and the United States. The event is cause for memorials in many countries, by names varying from Fête de l'Armistice to Remembrance Day to Poppy Day (right) to Veterans Day.

Dip-ping into humor

ccjhr blog, announced below, is not the only new entry to the international law blogosphere. Our colleagues have noted here and here the launch of "Dipnote: U.S. Department of State Official Blog" (duly added to our "connections" list at right). Its purposes? To "offe[r] the public an alternative source to mainstream media for U.S. foreign policy information" and "the opportunity for participants to discuss important foreign policy issues with senior Department officials."
For our colleague Rosa Brooks (below) the launch provides occasion for a dip into humor -- and not just a humorous poke at the inevitable association of the blog's name, based on the term "diplomatic note," with, as Rosa puts it in her Los Angeles Times column, "'dipsh-' um, 'dipstick.'" For Rosa the launch is a vehicle for announcing the discovery at State of "'a previously unknown but surprisingly effective' method of foreign relations,'" which the official whom she purports to quote "dubbed 'diplomacy.'" A further ersatz quote comes from Secretary of State Condoleezza Rice:

'This is an exciting moment in U.S. foreign policy. Now that we have discovered this innovative new method, "diplomacy," our nation will no longer have to rely exclusively on more traditional forms of foreign relations such as mockery, insults and unilateral military action.'

Kudos to Rosa for trying to add levity to our public discourse. Must say, though, that a quick look at this week's top foreign affairs stories -- "Secret U.S. Endorsement of Severe Interrogations," "Bush Defends Interrogations," "From Errand to Fatal Shot to Hail of Fire to 17 Deaths," "I survived Blackwater" -- offers little to laugh about.

The Sorrow and the Pity

While waiting for her plane to refuel in Ireland early this morning, Secretary of State Condoleezza Rice told reporters that the United States was granting military aid to various nations in the Middle East in order to help them combat extremism. A contract is apparently ready for signature with Egypt (13 billion dollars over the next 10 years), and deals with Saudi Arabia, Bahrain, Kuwait, Qatar and the United Arab Emirates totaling about 20 billion dollars over 10 years should not be far behind . But most new military aid will go to Israel, with a 25% rise in such aid over present levels. Rice claims that cooperation with these states in fighting extremism is nothing new and that the proposed military aid will help support moderates and contribute to countering the “negative influences of Al Qaeda, Hezbollah, Syria and Iran”. Curiously, I have not yet read a study of the roots of terrorism or religious extremism that cites a state’s lack of military might as a cause. Lack of democracy, lack of education, poverty, yes; lack of weaponry, no. And then there’s this great report by Pippa Norris and Ronald Inglehart that explains that “It’s the Women, Stupid”. Surely the bright folks at State can find a better way to spend thirty billion dollars!

Glam diplomacy boils down to oil

Copyright won’t let me post the photo: dark glasses covering ¼ of his face, bright white blazer over black shirt, black handkerchief flowing out the breast pocket, is Moammar Gadhafi, President of Libya (flag below right). Next to him walks Nicolas Sarkozy, President of France (flag below left). As they shake hands for the camera, neither looks at or turns toward the other, neither smiles, though Sarkozy has something like a sheepish half-grin on his face. And shouldn’t he look sheepish? We don’t negotiate with terrorists, don’t pay ransoms for hostages, but the EU (and Qatar) paid roughly $500 million to secure not the pardon, not the release, but commutation of 6 death sentences pronounced by Libyan courts to life behind bars. Extradition through regular channels may take up to a year. The 5 Bulgarian nurses and the Bulgaro-Palestinian doctor accompanying them have already spent 8 years in Libyan jails. Bursts onto the scene the “rebel wife” of the French president, reported as saying she does not want to be a potiche (figurehead), and who apparently needs some sort of first-ladyish good works to do. It was made clear that she had no negotiating authority and well publicized that Mr. Sarkozy stayed up all night, speaking on the phone more than once with Gadhafi and José Manuel Barroso, current president of the European Commission. So after the conclusion of some undisclosed deal, Mme Sarkozy flies off to Bulgaria with the 6 former hostages (oops, prisoners), where they are immediately pardoned. Libya called the consul of Bulgaria (flag above right) on the carpet for that, but welcomed Mr. Sarkozy to firm up commercial deals with France, including, apparently, the sale of nuclear technology. As the European deputy I heard on the radio said, we don’t believe Iran’s civil nuclear program will remain civil, so not only is the French diplomatic splash procedurally irregular, its nuclear deal is irresponsible. But nuclear’s not all. Naturally, there’s oil. After 8 years of strained Euro-Libyan relations, the end of the prisoner (hostage) crisis means “all-out cooperation” to Sarkozy: nuclear tech for Libya, oil and gas for France, normalized trade relations (with Europe as well) that will bring Libya back into the “concert of nations”. Condoleezza Rice thinks the same way, though she reportedly has no specific program in mind. Maybe if the US can start buying oil in Libya, we can stop killing for it in Iraq?

On July 27, ...

... 1929, delegates concluded a 7-month diplomatic conference in Geneva, Switzerland, by adopting the Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field, a revision of 1864 and 1906 treaties on the same subject, and the Convention relative to the Treatment of Prisoners of War, which operated to "complet[e]" the effort begun in the Hague Regulations of 1899 and 1907. Neither of the 1929 conventions is any longer in force, given the universal acceptance of the Geneva Conventions of 1949.
... 1789, President George Washington signed into law an act establishing a U.S. Department of Foreign Affairs, with

a principal Officer therein, to be called the Secretary for the department of foreign Affairs, who shall perform and execute such duties as shall from time to time be enjoined on, or intrusted to him by the President of the United States, agreeable to the Constitution, relative to correspondences, commissions, or instructions to, or with public Ministers or Consuls from the United States, or to negociations with public Ministers from foreign States or princes ....

Of the last 3 Secretaries of executive agency now known as the U.S. Department of State, 2, Madeleine Albright (left) and Condoleezza Rice (right), are women.

On July 8, ...

... 1958, Tzipi Livni was born in Tel Aviv, Israel. After military service she practiced law before being elected to the Knesset, Israel's parliament, in 1999. Her government posts have included Minister of Justice. Now Israel's Vice Prime Minister and Minister of Foreign Affairs, Livni is pictured at right with her U.S. counterpart, Secretary of State Condoleezza Rice.

... 1867 (140 years ago), Käthe Kollwitz was born in Königsberg, East Prussia, now known as Kaliningrad, Russia. Having begun art lessons as a girl, Kollwitz' studies of the suffering of ordinary women and men, like the woodcut of a widow at left, would make her among the leading artists of the German Expressionist period. Having lost a soldier grandson in World War II and having been herself threatened with transport to a Nazi concentration camp, Kollwitz died just before war's end in 1945.