Female Voices at IHL Dialogs in Chautauqua, NY: Katherine B. Fite Would Have Been Proud

 

Chautauqua Photo Hotel

Athenaeum Hotel, Chautauqua, NY (IHL Dialogs)

In my capacity as an academic and representative of Intlawgrrls, I had the pleasure of attending and speaking at the 11th International Humanitarian Law Dialogs in Chautauqua, New York from August 27th-29th.  The Dialogs’ theme for this year was “Changing Times: New Opportunities For International Justice and Accountability.”  As usual, the Dialogs’ schedule was filled with many interesting sessions on fascinating topics of international humanitarian law and international criminal law.  What was particularly impressive this year was the presence of so many distinguished female voices.  In this post, I will briefly highlight panels and lectures with such distinguished female participants.

 

 

Chautauqua Photo Leila Sadat

Professor Leila Sadat

 

The Dialogs began on August 27th with a screening of the documentary “Never Again: Forging a Convention for Crimes Against Humanity.”  As many of our readers will surely know, the documentary was conceived at the initiative of our colleague, Professor Leila Sadat from Washington University School of Law, who has been working for the past nine years on drafting and promoting a Convention for Crimes Against Humanity.  In addition to this session, Professor Sadat also moderated a book release and discussion on August 29th, regarding a forthcoming book (“The Founders,” to be published later this year by Cambridge University Press; Professor Sadat is one of this book’s editors and a chapter contributor).  The recipient of this year’s Joshua Heintz Award for Humanitarian Achievement was Zainab Bangura, a Sierra Leonian politician and activist who recently served as the United Nations Special Representative on Sexual Violence in Conflict.  Professor Valerie Oosterveld from the University of Western Ontario Faculty of Law participated as a panelist in a Roundtable discussion on August 28th on “Changing Times: New Opportunities for International Justice and Accountability.”  Professor Oosterveld was also a panelist on August 29th in a porch session entitled “Victim-Driven Approaches to International Criminal Justice” (more on this session below).  Professor Margaret deGuzman from Temple University School of Law participated on August 29th in a porch session entitled “Hybrid Courts.”  Professor Jennifer Trahan of the New York University Center for Global Affairs delivered a breakfast presentation on August 29th entitled “The Future of International Justice.”  She also participated in a porch session on August 29th, on “Victim-Driven Approaches to International Criminal Justice.”

 

 

Chautauqua Photo Judge VDW2

ICC Judge and Baroness Christine Van den Wyngaert

International Criminal Court Judge and Baroness Christine Van den Wyngaert delivered the Katherine B. Fite Lecture on August 28th (more on the lecture below), and yours truly delivered the “Year in Review” Lecture on August 29th, and co-moderated the August 29th porch session on “Victim-Driven Approaches to International Criminal Justice.”  In addition, Dean Aviva Abramovsky of SUNY Buffalo Law School accepted the Heintz Award on behalf of Zainab Bangura (who unfortunately could not attend), and Andrea Gittelman of the United States Holocaust Memorial Museum co-moderated the “Victim-Driven Approaches” porch session on August 29th with yours truly.  Susan Murphy serves as President and Chief Executive Officer of the Robert H. Jackson Center, which is one of the Dialogs’ sponsors.

 

 

Chautauqua Photo Porch Session

From left to right: Prof. Valerie Oosterveld; Andrea Gittelman; Prof. Milena Sterio; Prof. Megan Fairlie; Prof. Jennifer Trahan (porch session)

Intlawgrrls had two particular roles at the Dialogs.  First, Intlawgrrls has traditionally sponsored the Katerine B. Fite Lecture, which was delivered this year by Judge and Baroness Christine Van den Wingaert (I had the honor of introducing her).  Katherine B. Fite was an American lawyer who graduated from Yale Law School in 1930, when she was one of only three women to graduate from law school in the United States! She later worked at the State Department and with Justice Jackson, while he served as Chief Prosecutor during the Nuremberg trials.  Judge Van den Wyngaert delivered an excellent lecture in which she described her own path to becoming an International Criminal Court judge.  She remains an inspiration to so many of us.  Second, Intlawgrrls co-sponsored, with the Holocaust Memorial Museum, the above-mentioned porch session on “Victim-Driven Approaches to International Criminal Justice.”  The session was co-moderated by yours truly, as representative of Intlawgrrls, and Andrea Gittelman, as representative of the Holocaust Memorial Museum (Ben Ferencz Initiative).  Distinguished panelists included Professor Jennifer Trahan, Professor Valerie Oosterveld, and Professor Megan Fairlie (Florida International University School of Law).

 

In sum, in light of so many distinguished female voices at Chautauqua, I am certain that Katherine B. Fite would have been proud.

 

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Call for Papers: International Law Weekend 2017 New Voices

International Law Weekend 2017, a conference jointly organized by the International Law Students’ Association and the American Branch of the International Law Association will take place in New York City from October 19-21.  The following is an announcement regarding a call for submissions from new voices/scholars:

ABILA invites the submission of abstracts from emerging scholars and practitioners in the field of international law.  We will select several abstracts for presentation at ILW 2017 as part of a panel of new professionals. The abstracts may be based upon ongoing work. While all submissions are welcome, preference will be given to papers not already published. Eligibility is restricted to applicants working in the field of international law for five years or less.  

More information about new voices submissions due August 8 is available here.

ASIL-Midwest Works-in-Progress Conference: Call for Submissions

 

ASIL-Midwest Works-in-Progress Conference

Call for Submissions

ASIL-Midwest, an interest group of the American Society of International Law (ASIL) is co-sponsoring its fourth scholarly works-in-progress conference at the Cleveland-Marshall College of Law in Cleveland, Ohio on September 15-16, 2017. The goal is to create a friendly, open conversation about works in progress and to foster a Midwestern United States international law community. To that end, the workshop will include both full drafts and early works in progress.

Those interested in presenting at the conference should send a 500-word abstract to ASIL-Midwest Co-Chair Cindy Buys (cbuys@siu.edu) by Friday, July 28, 2017. Please also include a sentence about the stage the paper is expected to be in by September (e.g., reasonably complete draft, early work in progress, etc.). Papers may address any International Law topics, and this Call for Submissions is open to everyone in the international legal community.  Preference will be given to ASIL members who are also members of the ASIL-Midwest Interest Group.  Paper presenters will be asked to circulate their drafts (or a summary of the project if it’s early stage) to workshop attendees no later than September 1, 2017.

Those interested in serving as a commentator for a paper should also send an email to the Co-Chair Cindy Buys by July 28 (cbuys@siu.edu).  Commentators will be asked to prepare five to eight minutes of comments on one or more of the papers. Those interested in presenting are also encouraged to comment on the other papers and should indicate whether they are willing to serve as commentators as well.

ASIL members and Cleveland-Marshall College of Law faculty, staff, and students may attend for free. Participants who are not ASIL members or Cleveland-Marshall College of Law affiliates will be required to pay a $50 registration fee (includes workshop and some meals) for the conference. Some meals will be provided, but participants are responsible for their own travel and hotel expenses. More details regarding transportation, hotels and other logistics will be provided shortly.

For any questions about papers and presentations, please contact ASIL-Midwest Interest Group Co-Chairs, Cindy Buys (cbuys@siu.edu) or Neha Jain (njain@umn.edu).  For questions about conference logistics, contact immediate past-Chair, Milena Sterio (m.sterio@csuohio.edu).

International Law Weekend- Extended Deadline for Panel Proposals

The deadline for panel proposals for International Law Weekend 2017 has been extended until May 15.  International Law Weekend 2017 will take place from October 19-21 in New York City; this conference is jointly sponsored and organized by the International Law Students’ Association and the American Branch of the International Law Association.  More information about the conference, its theme, and procedures about panel submissions is available here.

International Law Weekend 2017

International Law Weekend 2017 will take place from October 19-21 in New York City, at the Association of the Bar of New York City and at Fordham Law School.  This conference is jointly organized by the American Branch of the International Law Association and the International Law Students’ Association.  Panel proposals are due on April 30th, and the conference theme and call for papers are available here.

Syria: The (Il)legality of the United States’ Use of Force Against Assad

On April 6, the United States unilaterally used force in Syria, against President Assad’s regime, in response to Assad’s alleged use of chemical weapons against a Syrian town and region.  Despite a humanitarian crisis that has been ongoing in Syria for several years, the United Nations Security Council has remained deadlocked, in light of the Russian and Chinese veto regarding any resolution that would have authorized a multilateral use of force.  The United States thus acted alone – potentially breaching both international and domestic law.  This post will examine the legality of United States’ actions under international and domestic law. 

Article 2(4) of the United Nations Charter prohibits states from using force against the territorial integrity or political independence of another state.  The only two exceptions to this general ban on the use of force involve Security Council authorization and self-defense.  The United States’ use of force in Syria had not been authorized by the Security Council, because, as mentioned above, Russia and China have persistently threatened or used their veto power to block resolutions regarding Syria.  Moreover, the United States’ use of force in Syria was not an instance of self-defense.  States can use force in self-defense if they are under an armed attack, or if they are about to be attacked; Syria has not threatened any other nations, and certainly not the United States, and the latter was not in danger of an imminent attack by Damascus.  Thus, under a traditional interpretation of international law, the United States has used force illegally in Syria, in breach of treaty and customary international law. 

It should be noted that the United Nations Charter is a treaty, to which the United States is a party.  The obligation in Article 2(4), mentioned above, is a treaty provision which binds the United States.  Thus, this treaty provision would be considered as “supreme Law” of the land under Article VI of the U.S. Constitution.  As such, this provision becomes part of United States’ domestic law and binds the United States on the domestic level as well.  Congress can, under the so-called later-in-time rule, pass a federal statute which trumps an otherwise binding treaty provision.  However, Congress has very rarely done so regarding existing treaties (doing so would put the United States in breach of its international law obligation), and Congress has certainly not done so in this instance, regarding the use of force in Syria. 

Moreover, under domestic law, a United States President is supposed to ask authorization from Congress before using military force in another country.  As Marty Lederman has explained recently, there are three major theories as to when the President can use force unilaterally against another sovereign nation and without Congressional authorization:

“(i) almost never (i.e., only to repel actual attacks, and then only as long as Congress is unavailable to deliberate)–what one might call the “classical” position;

(ii) virtually always, up to and including full-scale, extended war–that was John Yoo’s position, adopted by OLC in the Bush Administration, at least in theory; and

(iii) only under a set of complex conditions that do not amount to “war in the constitutional sense,” and only in conformity with legal restrictions Congress has imposed (including the War Powers Resolution)–a middle-ground position that I denominated the Clinton/Obama “third way,” and which in effect has, rightly or wrongly, governed U.S. practice for the past several decades.”

Marty Lederman had, in a 2013 post, elaborated as follows on the middle ground view:

“Between these two categorical views is what I like to call the Clinton/Obama “third way”—a theory that has in effect governed, or at least described, U.S. practice for the past several decades.  It is best articulated in Walter Dellinger’s OLC opinions on Haiti and Bosnia, and in Caroline Krass’s 2011 OLC opinion on Libya.  The gist of this middle-ground view (this is my characterization of it) is that the President can act unilaterally if two conditions are met:  (i) the use of force must serve significant national interests that have historically supported such unilateral actions—of which self-defense and protection of U.S. nationals have been the most commonly invoked; and (ii) the operation cannot be anticipated to be “sufficiently extensive in ‘nature, scope, and duration’ to constitute a ‘war’ requiring prior specific congressional approval under the Declaration of War Clause,” a standard that generally will be satisfied “only by prolonged and substantial military engagements, typically involving exposure of U.S. military personnel to significant risk over a substantial period” (quoting from the Libya opinion).”

Assuming that the middle ground view is correct- that the President can decide to use force without Congressional approval in limited circumstances – the current use force against Assad cannot be easily justified.  As others have pointed out, the closest precedent for the unilateral use of force in Syria may be the United States’ and NATO use of force in Kosovo in 1999, under the Clinton Administration.  The United States never advanced a legal rationale for its use of force in Kosovo, relying instead on a policy argument that Kosovo was sui generis.  Kosovo was arguably a better case than Syria, because the military intervention in Kosovo had been staged by NATO, not by the United States acting alone, and because the United Nations had already been involved in Kosovo, unlike in Syria.  Thus, Kosovo may not provide the best precedent for Syria.  In addition, adopting the above-mentioned middle ground view on the President’s ability to use force unilaterally, it is difficult to argue that the use of force in Syria will serve significant national security interests, such as self-defense or the protection of American nationals.  It remains to be seen whether the United States’ use of force in Syria will entail an extensive and prolonged military engagement, requiring Congressional approval, or if it will instead be comprised of a time-limited and precise series of strikes not involving exposure of United States’ military personnel.  As of today, however, it is difficult to argue that President Trump should not have sought Congressional approval for the use of force in Syria.

Can the United States’ military actions in Syria be justified on either the international or domestic planes?  First, regarding international law, Harold Koh has argued that the unilateral use of force against a sovereign state can at times be justified under the developing norm of humanitarian intervention.  According to Koh, the following conditions must be met in order for a state to be able to invoke the humanitarian intervention exception to international law’s general ban on the use of force:

“(1) If a humanitarian crisis creates consequences significantly disruptive of international order—including proliferation of chemical weapons, massive refugee outflows, and events destabilizing to regional peace and security—that would likely soon create an imminent threat to the acting nations (which would give rise to an urgent need to act in individual and collective self-defense under U.N. Charter Article 51);

(2) a Security Council resolution were not available because of persistent veto; and the group of nations that had persistently sought Security Council action had exhausted all other remedies reasonably available under the circumstances, they would not violate U.N. Charter Article 2(4) if they used

(3) limited force for genuinely humanitarian purposes that was necessary and proportionate to address the imminent threat, would demonstrably improve the humanitarian situation, and would terminate as soon as the threat is abated.

In particular, these nations’ claim that their actions were not wrongful would be strengthened if they could demonstrate:

(4) that the action was collective, e.g., involving the General Assembly’s Uniting for Peace Resolution or regional arrangements under U.N. Charter Chapter VIII;

(5) that collective action would prevent the use of a per se illegal means by the territorial state, e.g., deployment of banned chemical weapons; or

(6) would help to avoid a per se illegal end, e.g., genocide, war crimes, crimes against humanity, or an avertable humanitarian disaster, such as the widespread slaughter of innocent civilians, for example, another Halabja or Srebrenica. To be credible, the legal analysis of any particular situation would need to substantiate each of these factors with persuasive factual evidence of: (1) Disruptive Consequences likely to lead to Imminent Threat; (2) Exhaustion; (3) Limited, Necessary, Proportionate, and Humanitarian Use of Force; (4) Collective Action; (5) Illegal Means; and (6) Avoidance of Illegal Ends.”

It is unclear whether these conditions have been met in Syria – for example, it is unclear that the Trump Administration is acting consistently with condition 3, and it is unquestionable that the American unilateral action does not satisfy condition 4.  Moreover, Koh’s proposed framework is doctrinal in nature and does not reflect the current status of international law – unless one assumes that Syria is a law-breaking moment and that the evolution of international law requires the breaking of existing international law norms (a point of view which many scholars would disagree with).  Finally, it is also unclear that the use of chemical weapons is prohibited in non-international armed conflict; chemical weapons are banned in international armed conflict and their use is certainly morally abhorrent, but it is not legally clear that chemical weapons are always prohibited in internal and non-international warfare (the use of chemical weapons in international armed conflict is not prohibited by treaty law although it may be argued that it is prohibited under customary law).  And, even if chemical weapons were prohibited in non-international armed conflict, a violation of jus in bello does not provide justification for the use of force against a sovereign state – a point which Koh’s framework ignores (arguably because Koh’s framework focuses on the protection of human rights, which justifies the conflation of jus in bello and jus ad bellum norms). 

On the domestic level, the United States’ use of force in Syria could be justified if one adopts the Yoo/Bybee view, that President can always act alone, without Congressional approval, or if one adopts the middle ground view and concludes that the action in Syria advances national security interests and is so limited in time and scope that it falls outside of a traditional “war.”  As mentioned above, it is unclear as of today what the Syrian military action will entail and it is uncertain whether the strikes will remain limited in duration and scope and whether United States’ military personnel will not be exposed. 

Thus, it is difficult to construct the legal argument that the United States’ use of force in Syria is legal under both international and domestic law.  While military action may be the morally correct response to Assad’s slaughtering of civilians, it appears that the United States’ actions lack a solid legal basis. 

Intlawgrrls 10th Birthday Conference: A Transformative Experience

Last week, I had the pleasure of participating in the 10th Birthday Conference of Intlawgrrls (our direct predecessor) at the University of Georgia.   The conference was organized by Intlawgrrls founder, Professor Diane Marie Amann, without whom this blog (www.ilg2.org) would not be in existence today.  Today is March 8th, International Women’s Day, and in honor of this international holiday, Professor Amann, Intlawgrrls, and all of my female colleagues I wanted to share the following thoughts regarding my experience at the conference. 

 First, the conference was academic in nature.  Although it was a celebration of the blog, its mission and its legacy, every participant was an academic or an aspiring academic, and all presentations focused on scholarship in the field of international law.  I presented a paper on the Karadzic conviction entitled “The Karadzic Genocide Conviction: Inferences, Knowledge and Intent.”  I had previously written about this paper, which will be published in the Emory International Law Review, but in a nutshell, this paper focuses on the judicial reasoning behind the International Criminal Tribunal for Yugoslavia (ICTY) Trial Chamber’s decision to convict Karadzic of genocide.  Karadzic, the former Bosnian Serb leader during the 1990s civil war, was accused, under a joint criminal enterprise theory of liability, of having participated in a plan to murder thousands of Bosnian Muslim males at Srebrenica in July 1995.  Karadzic had also been accused of and convicted of other crimes but my article focuses solely on the genocide conviction.  In order to achieve a conviction on the genocide count, prosecutors needed to establish that Karadzic not only participated, through a JCE, in the common plan to kill Bosnian Muslims, but that he also possessed the special intent or mens rea to do so.  The Trial Chamber concluded that Karadzic had the special intent to commit genocide at Srebrenica by first inferring that Karadzic must have known about what had been going on at Srebrenica, based on a conversation that Karadzic had with another civilian administrator of the region of which there is no direct evidence or testimony, and by then inferring intent from the inference of knowledge.  According the ICTY Trial Chamber, Karadzic must have known that Bosnian Males were about to be killed and he must have intended for this to happen because this was the “only reasonable inference” based on all the evidence.  My article argues that the Trial Chamber performed judicial gymnastics in order to arrive at this conclusion, because other inferences were clearly available based on the evidence on record, such as that Karadzic could have known and agreed to forcibly transfer Bosnian Muslims out of the Srebrenica area (this would amount to ethnic cleansing), but not to actually kill.  My article then argues that the current definition of genocide under the Genocide Convention, and the statutes of the ad hoc tribunals some of which have adopted this definition verbatim, is too narrow, and that, in order to meaningfully use genocide as a crime of international criminal law, we should think about closing the gap between the intent requirements behind ethnic cleansing and genocide.  The intent to ethnically cleanse an area, by forcibly removing a protected group, is in some instances synonymous with the intent to destroy a protected group.  Reconceptualizing genocide would allow tribunals to more easily convict of genocide – in a world where attaching the genocide label to a specific defendant, crime or region has deeper political and historical meaning.

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