On February 27

On this day in ...
... 1991 (20 years ago today), in a televised address, U.S. President George H.W. Bush declared Kuwait liberated, Iraq defeated, and U.S.-led allies on stand-down status. He called upon Iraqi President Saddam Hussein, whose forces The New York Times described as "isolated and battered," to begin negotiating a permanent ceasefire. (map credit) The declaration marked the end of the Persian Gulf War -- but not, as readers of our "...and counting..." feature well know, the end of all combat in Iraq.

(Prior February 27 posts are here, here, here, and here.)

Kampala as cause to celebrate

(Part 3 of a 3-part series)

Celebration proved the closing theme of the 4th International Humanitarian Law Dialogs.
The final speaker at the recent upstate New York conference was William A. Schabas, Professor of International Human Rights Law and Director of the Irish Centre for Human Rights at the National University of Ireland-Galway. He asked whether the International Criminal Court Review Conference this summer in Kampala, Uganda (above left; credit), was "a moment of celebration or a disappointment." Schabas then answered his own question:

I think it is a great accomplishment.

The 1998 Rome diplomatic conference, Schabas recalled, had ended with a compromise on the extent of crimes the ICC may hear. Immediately operative were 3 core international offenses: genocide, crimes against humanity, and war crimes. Left for another day was a 4th: the offense of offensive warmaking, called crimes against peace in the Nuremberg era and known today as the crime of aggression. Article 5 of the Rome Statute grants the ICC jurisdiction over aggression, but postpones actual prosecution until adoption of a provision "defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime."
Negotiators worked on both definition and conditions for the next dozen years before the Assembly of States Parties adopted a package of proposed amendments, designed to give the ICC power to adjudicate allegations of aggression, at Kampala.
"At Kampala, it was not obvious even till the final minutes of the conference that it was going to succeed," said Schabas. "These were adopted in the final minutes of the conference, by consensus. If somebody had called for a vote, the votes probably weren’t there." (credit for photo from Schabas' Kampala blog, depicting him, center, "discussing the amendments to article 8 with the Bulgarian delegation")
The central achievement was the definition of aggression in proposed Article 8 bis. "It will not be immune to judicial interpretation," Schabas said, and predicted "a liberal approach to its application."
Strong supporters of criminal punishment for aggression have expressed concerns that the Kampala package affords too many ways to avoid implication in that crime. (For details on the intricacies of these amendments, see our crime of aggression series.)
Agression, Schabas allowed, "may never be prosecuted, which may not necessarily be a bad thing. It simply confirms a deterrent effect."
Schabas sought to allay concerns about obstacles to entry into force, including a requirement of ratification by 30 states and further review in 2017. "I don’t think they’re actually going to be very difficult – not anywhere near as difficult as the obstacles appeared in 1998, of getting the 60 ratifications." (This latter milepost was reached in April 2002, so that the Rome Statute entered into force fewer than 4 years after its adoption. Today 113 of the United Nations’ 192 member states belong to the ICC. Nonparties include China, India, Russia, Turkey, and, as discussed in yesterday’s post, the United States.)

Nor, in Schabas' opinion, does it seem likely that political leaders of states parties will exercise the possibility of opting out of exposure to ICC pursuit should they be accused of aggression.
Endorsing a prediction that, as posted, ICC Judge Hans-Peter Kaul made earlier in the Dialogs, Schabas said:

I think that within 6 years, 4 months, and a few days we will have a court with jurisdiction over aggression, capable of prosecuting the crime.

This is an important step for international criminal justice, Schabas maintained, along a trail blazed by Robert H. Jackson, Chief U.S. Prosecutor at the Trial of the Major War Criminals held in Nuremberg after the Allies defeated Nazi Germany:

Jackson saw the link between war and other crimes, that war is at the center of it, that war is responsible for it. To the extent that the adoption of that amendment revives this, that is good.

On the trail that Jackson blazed lies the question of state responsibility. According to Schabas, it’s a question that was entertained in the proposal of U.S. President George H.W. Bush and British Prime Minister Margaret Thatcher, following Iraq’s invasion of Kuwait, to set up a tribunal competent to hear charges of aggression. But that proposal never was implemented, and the question of state responsibility was not addressed by the international criminal fora that were set up after Cold War.
Why might some be less eager today to prosecutor perpetrators of aggression?

Schabas proffered 2 possible answers:
► 1st: "We have become a be more militarized than we should be." As posted yesterday, in an earlier Dialogs speech Stephen J. Rapp, U.S. Ambassador-at-Large for War Crimes Issues, had stressed, as a reason for caution in implementing the current Kampala aggression amendments as they now stand, that military intervention is at times necessary. Schabas replied:

Sometimes, yes. But nor would I exaggerate the importance of that, because war brings atrocities, inevitably.

►2d: Some civil society organizations seemed not to appreciate the significance of making aggression a crime punishable by the ICC. Schabas recalled: "I saw a banner that said, ‘Civil Society Welcomes Stocktaking,’" another aspect of the Kampala Conference. "Civil society should have welcomed the amendment on aggression."

Echoing Judge Kaul’s description of atrocities as the "excrement" of war, Schabas said of the crime-of-aggression package: "That’s the big piece. It shows that," despite some growing pains at the ICC, "we have a court that is healthy and productive and moving forward."
　
(Part 1 of this 3-part series on the 4th IHL Dialogs is here; Part 2 is here.)

On January 12

On this day in ...
... 1991, both chambers of Congress adopted a Persian Gulf War Resolution authorizing President George H.W. Bush to deploy U.S. troops to liberate Kuwait, which Iraq had invaded the previous August. The vote in the House of Representatives was 250 to 183; in the Senate, 52 to 47. (That these votes were far from unanimous may be a reflection on public sentiment, evinced by the then-popular T-shirt at left.) The U.S. resolution invoked U.N. Security Council Resolution 678 (1991), which, as Congress put it, "authorized member states of the United Nations to use all necessary means, after January 15, 1991, to uphold and implement all relevant Security Council resolutions and to restore international peace and security in the area." What became known as the 1st Gulf War would begin 4 days later and conclude with a ceasefire at the end of February.

(Prior January 12 posts are here and here.)

Read On! Justice at Guantánamo by IntLawGrrl Kristine A. Huskey

(Read On! ... occasional posts on writing we're reading) As mentioned in this teaser post last week, IntLawGrrls' own Kristine A. Huskey, aided by Aleigh Acerni, has just published one great book.
The hardcover spine names the book Justice at Guantánamo, and it's surely about that. But a fuller story's evident in the subhead found in the frontispiece, One Woman's Odyssey and Her Crusade for Human Rights.
Kristine does a super job of describing how she came to be among the 1st lawyers representing persons detained at Guantánamo. It started pretty much as a missing persons case: a group of Kuwaitis were worried sick about their sons, who’d disappeared after the onset of the U.S.-led counterassault in Afghanistan. Soon Kristine and her team, led by Shearman & Sterling partner Tom Wilner, find themselves ensnared in the tangle of national, international, habeas, and criminal law regimes relevant to post-9/11 detention. The team travels to Kuwait, to court, and, years later, to Guantánamo. Kristine’s opening description of her 1st sojourn there is masterful. Her closing questions about current policy likewise provoke much thought, coming as they do at the end of the very human story she tells.
And that is where the subtitle comes in.
Framing, indeed interweaving, this story of detainee representation is another – the story of how one woman has negotiated the challenges of life and career in our complex society. Kristine’s odyssey begins in bushplane Alaska, moves to a stint as an unwed teenaged hausfrau in wartorn Angola, to a New York City life of fin de siècle hedonism that would have done Jay McInerney proud. In Manhattan Kristine stumbles – the word is not an exaggeration – into undergraduate study at Columbia. That leads to law school at Texas and, eventually, to practice at Shearman.
It’s an improbable journey, and Kristine reveals its elements well. She is the child of a Caucasian bush pilot and a Filipina mother, a family not familiar with Ivy League colleges. She is a fashion model and an honors student, a bartender and a beauty pageant contestant.
She is a feminist too, and her candid telling of that story intrigues. Kristine is a woman and a ’Grrl. She grapples with how to be all that, and an attorney to boot. Her path to a most excellent career includes prickly personal relationships. Her late-in-the-day discovery of her heritage includes a quest to become a Filipina beauty queen – by reciting a Marge Piercy poem. As Kristine remarks (pp. 51-52),

I’m pretty sure I would have at least placed in the pageant if not for these few lines:
A strong woman is a woman in whose head
a voice is repeating, I told you so,
ugly, bad girl, bitch, nag, shrill, witch,
ballbuster, nobody will ever love you back,
why aren’t you feminine, ...

This is a book that everyone embarking on a legal career – not to mention everyone who ought to know more about America’s campaign against terrorism – would do well to read.
Go, ’Grrl!

On June 19

On this day in ...
… 1961, Kuwait declared independence from the United Kingdom. Back in 1899, Britain had concluded a protectorate agreement with the ruler of Kuwait (flag at left). In it the ruler promised not to conclude treaties with other powers, to admit no foreign agents, and to cede no part of his territory without British consent. According to the independence agreement concluded on this day in 1961, relations between the 2 countries should continue to be governed by a spirit of close friendship, and, when appropriate, the 2 governments would consult on matters of concern to them both.

… 1939 (70 years ago today), Grace Abbott (below right), American social reformer, teacher, and writer, died in Chicago, Illinois. Concerned about the low pay and long hours required of children working in factories, Abbott became a leader in the fight for federal children's rights legislation. As associate of Jane Addams, Nobel Peace Prizewinner and IntLawGrrls transnational foremother, Abbott served as head of the Children's Bureau in the Department of Labor from 1921 to 1934. She was the official representative of the United States on the League of Nations' advisory committees on traffic in women and on child welfare from 1922 to 1934. Upon her resignation, President Franklin D. Roosevelt described her career as one of

inestimable value to the children, the mothers, and fathers of the country, as well as to the Federal and State governments.

From 1934 until her death, Abbott continued working for social welfare as a professor at the University of Chicago and as chair of international labor conferences and state committees dealing with child labor. (photo credit)

(Prior June 19 posts are here and here.)

On January 10

On this day in ...

... 1984 (25 years ago today), full diplomatic relations were re-established between the United States and the Holy See. Relations between America and the Vatican had broken in 1867. Representing the United States at the Vatican since last February (but expected to depart with the Bush Administration) is Ambassador Mary Ann Glendon (above at far right, with Pope Benedict XVI), whose work as a Harvard law professor included authorship of A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (2001).

... 1991, Javier Pérez de Cuéllar (left), who'd been U.N. Secretary-General since 1982, prepared to head to Baghdad, the BBC reported, "in a final diplomatic effort to avoid war against Iraq," by "rais[ing] the possibility of sending a UN peacekeeping force to Kuwait to oversee the peaceful withdrawal of Iraqi troops. " His efforts would fail, and military intervention, dubbed "Operation Desert Storm," would begin on January 16.

On August 6

On this day in ...
... 1942, Wilhelmina of the Netherlands became the 1st reigning queen to address Congress. The Dutch monarch (right), who had been living in exile in Britain since Nazi Germany overtook her country in 1940, declared to a joint session of the U.S. legislature that although her people

'see their families go without what they most need in food and clothing, their workers enslaved by the oppressor, ... "No Surrender" remains their constant motto.'

... 1990, acting pursuant to Chapter VII of the U.N. Charter in response to Iraq's invasion of Kuwait, the Security Council adopted Resolution 661, which imposed an embargo against Iraq and Kuwait. It thus forbade U.N. member states from "the import into their territories of all commodities and products originating in Iraq or Kuwait," as well as transactions between member states' nationals and those 2 countries. (map credit)

On May 16, ...

...1943, Nazi troops suppressed a nearly month-long uprising by Jews in the Warsaw Ghetto. Approximately a half-million women, children, and men had been kept for 3 years in a part of the city smaller than 1 square mile. The uprising had begun when Nazis attempted to deport some residents to concentration camps. An estimated 40,000 Jews were killed in reprisal for th uprising. (Photo of Nazis detaining residents during the uprising, part of an album admitted into evidence before the International Military Tribunal at Nuremberg, courtesy of the U.S. Holocaust Memorial Museum.)
...2005 (just 2 years ago), the Kuwaiti parliament voted to extend the franchise to Kuwaiti women. Eleven months later, they would cast votes for the 1st time.