'Nuff said

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

He played a small but meaningful role in this unique gathering of princes, presidents, and kings-in-waiting, sitting down face-to-face with Emir Faisal ibn Husayn, who would briefly be king of Syria and then of Iraq. Faisal's translator and adviser was none other than T.E. Lawrence, fresh from the exploits in insurgency that earned him the nickname Lawrence of Arabia. Working with Lawrence, Frankfurter negotiated an exchange of letters expressing mutual support for the national hopes of Jews and Arabs alike -- a kind of hopeful entente that prefigured later cooperation between the Zionists and the Hashemite Kingdom of Jordan.

-- A story of the bit part that Felix Frankfurter (above left) played in the 1919 Paris Peace Conference (prior posts) that led to the Versailles Treaty and many other post-World War I agreements. Recounted at p. 30 of in Scorpions: The Battles and Triumphs of FDR's Great Supreme Court Justices (2010), by Harvard Law Professor Noah Feldman. Frankfurter was among those those "greats," according to Feldman. The others (4 out of 9 FDR appointees) were Robert H. Jackson, Hugo Black, and William O. Douglas. In Feldman's telling, the 4 were instrumental in the entrenchment of theories of constitutional interpretation that persist to this day: respectively, judicial restraint, pragmatism, originalism, and legal realism. (credit for circa 1927 photo of Frankfurter, then a Harvard Law professor)

ICC prospects post-Kampala

(Part 1 of a 3-part series)

International Criminal Court Judge Hans-Peter Kaul succinctly summed up discussion at the 4th International Humanitarian Law Dialogs:

There will soon be an Article 8 bis to the Rome Statute.

The just-concluded IHL Dialogs, cosponsors of which include IntLawGrrls and the American Society of International Law, feature prosecutors from most of the international criminal tribunals convened in the last 60 years. Joined at the Chautauqua Institution, a lovely upstate New York setting, by members of the academic, practitioner, advocacy, and diplomatic communities, these prosecutors spend a few days discussing hot topics in international criminal law.
The hottest ICL topic this year is the crime of aggression.
As readers of our series on the subject well know, this summer the ICC Assembly of States Parties ended a 2-week Review Conference in Kampala, Uganda, with the consensus approval of a package of proposed amendments to the ICC Statute, which had been adopted at Rome, Italy, in 1998, and which entered into force on July 1, 2002. A centerpiece of the Kampala package is proposed Article 8 bis, to which Judge Kaul referred. Article 8 bis defines the criminal prohibition; other proposed articles chart the paths by which the ICC may investigate and prosecute uses of force alleged to fall within that prohibition.
Post-Kampala questions are many:
► What do the proposed texts actually mean?
► How will they work?
► Which, if any, states will ratify the amendments?
► When, if ever, will the amendments become the law of the ICC?
The IHL Dialogs left some of these questions open. The meaning and working of the amendments, for example, inevitably will be subject to judicial interpretation and pronouncement. But a clearer answer seemed to emerge on the question whether these amendments will enter into force. In a word: "Yes."
Kaul predicted that Germany (which features the ICC on its diplomatic website) would move rapidly to ratify the package. Others foresaw that other countries would follow suit.
Kaul, who was born in Germany during World War II, lamented “the downfall of the Germans to the Nazis.” Nazi invasions in 1939, he said, constituted “a textbook example of a war of aggression.”
In an address available in full here, he lauded the postwar precedent set when an International Military Tribunal comprising judges and prosecutors from 4 Allied countries put scores of Nazis on trial at Nuremberg, not only for war crimes and crimes against humanity, but also for “crimes against peace,” the forerunner to the offense now known as aggression. Kaul, the ICC's current 2d Vice President, the leader in 1998 of the German diplomatic delegation at Rome, and the author in 2005 of an American Journal of International Law article on the ICC, said:

Today, I am myself among the many Germans who believe: the most important point of Nuremberg was the conclusion that aggressive war, which had been a national right throughout history, should henceforth be punished as an international crime.

(credit for photo of a German World War I memorial declaring “Nie Wieder Krieg"– “Never Again War”; the same slogan appeared on a post-World War II photo Kaul displayed during his talk at Chautauqua)
That’s not to say that every participant at the IHL Dialogs – which ended with a Chautauqua Declaration applauding the adoption of a definition and the “determination to press for appropriate mechanisms for its enforcement” – agreed with everything agreed upon at Kampala.
► Former Nuremberg Prosecutor Benjamin B. Ferencz, long a vocal proponent of holding individuals criminally liable for the crime of aggression, asked of the Kampala package:

Is it eyewash or progress? It’s both.

► William R. Pace, Convenor of the Coalition for the International Criminal Court, noted both the complexity of the definition and the options given states to avoid having the ICC pass judgment on the legality of wars waged at their behest.
► Kaul, meanwhile, stated that as a Judge of the International Criminal Court, “it is not my role to delve into the intricacies or maybe weaknesses of the proposal adopted.”
Kaul did venture to take issue with an oft-stated concern, that making the crime of aggression ban fully operational will detract from pursuit of atrocities.
Former Nuremberg Prosecutor H.W. William Caming had observed during the Dialogs that “the planning, participating and waging of wars of aggression” was branded by Chief U.S. Prosecutor Robert H. Jackson as “the ultimate crime from which the crimes against humanity and war crimes extend.”
Kaul echoed Jackson’s view, arguing that prosecution of aggression would enhance prosecution of atrocities:

War crimes, they are the excrement of war.

Declaring that the Kampala package had “energized” proponents of international criminal justice, Kaul ended on this note:

Leaders from all over the world, including Washington, are called upon to reflect ... on which policy they may henceforth follow.

(This 3-part series on the crime of aggression and the 4th IHL Dialogs continues tomorrow with Part 2, on the policy from Washington. Part 3 celebrates the Kampala result)

What do women want? International law that matters in their day-to-day lives

(Part 3 of a 3-part guest post on what women want from international criminal justice, by Judge Patricia M. Wald. Part 1 is here; Part 2 is here.)

I believe women want international law and tribunals to make a difference in their daily lives.
Even if tribunals do their work well, so that women’s wrongs are recognized as serious war crimes, crimes against humanity, and tools of genocide – even if enough women can infuse their own sensitivities into the process – even if tribunals achievements’ are truly accessible to ordinary women – will all that really help women in states where old ways survive? In states where women are treated, in peacetime as well as in wartime, as property, and their sexual and physical integrity impugned at will?
Even in countries that have ratified the Convention on the Elimination of All Forms of Discrimination Against Women and other human rights treaties, customary law and local norms executed by tribal and religious courts often approve practices that oppress and diminish women – that deny them rights to work, to hold property, to custody of their children, to be educated, to inherit money, or to obtain divorces however maltreated they may be. In these benighted lands, there are only a few embryonic organizations, and even fewer shelters, for oppressed women.
You may ask what all this has to do with tribunals.
I see an entry point whereby the advances of international humanitarian law and tribunal jurisprudence could help the plight of these women and girls. It is future development of the crimes against humanity doctrine.
Unlike genocide, which limits its protection to racial, religious, and ethnic groups, and unlike war crimes, which require a nexus to armed conflict, crimes against humanity can include a state-ordered, perhaps even a state-tolerated, regime of discrimination that violates the fundamental rights of women.
Surely the conditions I have described could, in extreme cases, amount to the discriminatory treatment that is the vital element in the underlying crime of persecution, which can qualify as a crime against humanity. Article 7 of the ICC Statute defines a crime against humanity as prohibited conduct that is part of an “attack,” against “any civilian population,” which involves “the multiple commission of specified acts pursuant to or in furtherance of a state or organizational body”; the violations must be systematic or widespread. Article 7(g) sets out the full list of sexual crimes – rape, slavery, forced pregnancy, etc. – that may anchor a crime against humanity designation. Article 7(h) specifies gender as a ground on which a claim for persecution can be based.
The $64 question, of course, is whether a state-tolerated regime of gender oppression, enforced by private parties or clerical or tribal authorities, would ever meet the test. It is certainly not beyond contemplation that discriminatory legislation, exemplified by the Shiite law on mandated intercourse and travel bans for married women passed by the Afghanistan parliament, might qualify, or that regimes that allow women to be stoned to death for adultery without any formal trial might as well.
Recent developments lend support for this way of thinking:
► Action by U.S. immigration authorities, granting asylum for women who show that the rigid discriminatory codes of conduct pertaining to women in their native countries were officially approved or enabled by the government;
► A ruling by the European Court of Human Rights that Turkey’s failure to protect a woman who had sought help from the authorities from domestic violence amounted to gender discrimination in violation of obligations under CEDAW; and
► The embryonic responsibility to protect doctrine embraced by the United Nations, which seeks to delineate the obligations of a country to keep its residents safe from predatory attacks by nongovernmental groups.
I do not speak in an advocacy mode. Nor am I sanguine that crimes against humanity will proceed along this route. But I persist in thinking that the very existence of a universally accepted criminal norm that so neatly fits the situation that so pervasively stifles the very life and spirit of so many women in so many parts of the world could serve a purpose:
► An extreme case could arise where the degree of violence or slavery-like conditions systematically imposed on civilian women would produce an international cry for humanitarian intervention, including criminal accountability of the persons responsible.
► Following Justice Robert H. Jackson’s more conservative example as Chief U.S. Prosecutor at Nuremberg – he insisted that the crimes against humanity committed by the Nazis against the Jews in prewar Germany could be charged as such if they were part of preparation for war – a prosecutor might in the context of a wartime case against leaders of these regimes add a count based on the continuing abuses perpetrated against women at all times. (I have often wondered how a judge could rule on wartime atrocities against women and not be troubled by equally abhorrent acts committed in peacetime against those same women.)
► There is the hope and some evidence that tribunal decisions on gender crimes will work their way into domestic jurisprudence.
► The recognition of crimes against humanity extending to systematic oppression of women would be a useful talking point in diplomatic negotiations that seek compliance with more traditionally enforceable treaties or convention obligations.
► In some countries – Kuwait, Egypt, even Iran – where women are beginning to organize against gender discrimination and to affirmatively seek rights to education, custody, and property, the crime against humanity designation for persistent denial of their pleas might add to their powers of persuasion.
► If this norm were in place, countries would have to comply with it when seeking to join the ICC – a point at which they must conform their own laws in order to meet complementarity standards.
► It would indeed be salutary if the ICC prosecutor were to mobilize on behalf of women suffering the worst abuses the kind of “Dutch uncle” supervision -- proactive complementarity -- that he has told us is already under way in several countries where outside groups have urged him to open formal investigations into a variety of alleged offenses.
I entreat you to think about ways in which the tribunals can alleviate the misery of women, in situations where the commission of serious crimes against humanity is virtually indisputable, so that if and when the right situation comes along, you will be ready.