Commemoration

Pleased to share on this Memorial Day the photo above, found in American Memory, a digital archive of the Library of Congress. Made by Royden Dixon and dated May 1942 -- when World War II raged -- it's captioned "Black troops at the Memorial Day parade, Washington, D.C., probably Constitution Avenue." (credit)

On May 28

On this day in ...
... 1998, declaring,

'We never wanted to participate in this nuclear race'

Prime Minister Nawaz Sharif announced in a televised statement that Pakistan had conducted 5 underground nuclear tests in Baluchistan, a region of Pakistan near its border with Afghanistan. (image credit) Sharif contended that the tests were "inevitable" following news 2 weeks earlier that India had conducted 5 similar nuclear tests. To this day, India and Pakistan remain  nuclear states outside the regulation of the Nuclear Non-Proliferation Treaty, and, also, tense neighbors.

(Prior May 28 posts are here, here, here, here, and here.)

'Nuff said

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

'Electoral politics aside, it's important to note that Julian Bond, the former chairman of the NAACP and co-founder of the Student Nonviolent Coordinating Committee, personally embraced gay rights years ago and has since pushed black leaders inside and outside of the NAACP to do the same. For instance, in response to a 2004 query by Ebony magazine about whether gay rights should be considered a civil rights issue, Bond answered: "Of course.... 'Civil rights' are positive legal prerogatives--the right to equal treatment before the law. These are rights shared by all--and there is no one in the United States who does not--or should not--share in these rights. Gay and lesbian rights are not special rights in any way." ...
'In past discussions of the link between black civil rights and gay rights, Bond frequently noted that Bayard Rustin [above left], a gay man, played an important role in the civil rights movement.'

–  Harvard Law Professor Tomiko Brown-Nagin (right), in a Legal History Blog post entitled "'Historic' Decision: NAACP Endorses Marriage Equality."  As Tomiko explains, the NAACP action came within days of President Barack Obama's statement "that same sex couples should be able to get married." (photo credits here and here)

On May 27

On this day in ...
... 1999, at The Hague, Netherlands, the International Criminal Tribunal for the former Yugoslavia indicted the sitting President of Serbia, Slobodan Milošević (right), and top aides on charges of having committed war crimes and crimes against humanity in Kosovo, a breakaway province. (Our colleague Michael P. Scharf analyzed the charges in this 1999 ASIL Insight.) The indictment came 2 months into the bombing campaign that NATO, acting without U.N. Security Council approval, launched against Serbia on account of its crackdown in Kosovo. That bombardment would end fewer than 2 weeks later. Milošević would remain in power for a time, but then would lose an election and be transferred to ICTY custody in 2001. (photo credit) His trial dragged on, and he died in his Dutch cell in 2006.

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

Go On! National courts/intlaw crimes @ Amsterdam

(Go On! is an occasional item on symposia and other events of interest)

Amsterdam's historic Trippenhuis, the permanent headquarters of the Royal Netherlands Academy of Arts and Sciences, will be the site of a conference on a subject about which frequently post, most recently here and here.
The conference, titled Pluralism v. Harmonization: National Adjudication of International Crimes,will be held this June 14 and 15.
Speakers will examine international criminal law "fragmentation at the international and national level," write organizers, including our colleague, Professor Elies van Sliedregt (below right), Dean of the Faculty of Law at Vrije Universiteit Amsterdam. The program promises many distinguished speakers in addition to Elies and her law faculty colleague Barbora Holá; among them, Andrew Cayley, International Co-Prosecutor at the Extraordinary Chambers in the Courts of Cambodia, and Dr. Sarah Nouwen, University Lecturer in Law and Fellow of the Lauterpacht Centre and Pembroke College at the University of Cambridge, England.
Topics to be addressed:
► To what extent is harmonizing international criminal law desirable, or even realistic? How does a pluralistic approach contribute?
► How to deal with the tension between collective action and individual responsibility when prosecuting international crimes?
► To what extent does the principle of complementarity as laid down in Article 17 of the Rome Statute of the International Criminal Court require adherence to international standards; does this also affect procedural law, in particular domestic laws of evidence?
► Given fact-finding impediments and evidentiary challenges when dealing with core international crimes, can national courts be of guidance to international criminal tribunals; or vice versa?
Details here; program here.
Register here before the June 4 deadline.

On May 26

On this day in ...
... 1916, Henriette Roosenburg was born into an upper-class family in the Netherlands. When World War II started she was in graduate school at Leiden University. She joined the Dutch resistance, using the nom de guerre "Zip," and also wrote for a Dutch newspaper. Arrested in 1944 and given the death penalty, she was incarcerated at Waldheim prison in Germany. Released days before V-E Day, she and 4 other former prisoners embarked on a weeks-long journey back to the Netherlands. That sojourn among U.S., Soviet, and other encampments became the basis of Roosenburg's memoir, The Walls Came Tumbling Down (1957), at least one edition of which issued with the cover at left. (image credit) A Europe-based writer for Time magazine after the war, Roosenburg died in 1972.

(Prior May 26 posts are here, here, here, here, and here.)

International authority & the responsibility to protect

(Part 2 of a 2-part series; Part 1 is here)  

 

With the end of the Cold War, in which the model of UN executive action outlined in yesterday's post developed, the concept of security, and the ends to which conflict prevention machinery of the United Nations was to be put, became more ambitious:
► Peacekeeping became established as a core technique of international executive action;
► Civilian administration became significantly more ambitious in scope and scale; and
► UN agencies in the humanitarian field began to exercise an increasing range of governmental powers.
With the expansion in the scope and complexity of international operations, it became clear that existing political and legal concepts could not address the questions about legitimacy, authority and credibility to which that expansion gave rise. (photo credit)
Both the achievements and the failures of UN operations during the 1990s placed the legitimacy of international executive action on the table:
► In cases seen as success stories, such as East Timor and Kosovo, local actors challenged the legitimacy of the authority exercised by international administrators, asking why the UN, rather than the people, should have the authority to decide who should govern?
► In cases of failure, such as Rwanda and Srebrenica, critics asked why the UN alone should have the authority to intervene in order to protect populations at risk if other external actors could do so more effectively?
Many of the debates about the legitimacy of international authority came to a head in 1999 when NATO intervened in Kosovo without Security Council authorisation. That intervention challenged not only the authority of sovereign states, but also that of the UN.

Development of responsibility to protect
The development of the responsibility to protect concept can be understood as an attempt to answer these growing questions about the basis of both state and international authority. (Prior IntLawGrrls posts)
Conceptually, the responsibility to protect asserts that the lawfulness of authority – both local and international – flows from the factual capacity and willingness to guarantee protection to the inhabitants of a territory. This argument for the lawfulness of authority does not prioritise self-determination, popular sovereignty, or other romantic or nationalist bases for determining who should have the power to govern in a particular territory. Rather, it asserts that authority, to be recognised and respected, must be effective at guaranteeing protection.
Practically, the implementation of the concept is aimed at strengthening the UN’s capacity to protect. In a series of reports on implementing the responsibility to protect concept, the Secretary-General has stressed that implementation will involve ‘utilizing the whole prevention and protection tool kit available to the United Nations system’, adopting a ‘unifying perspective’ and facilitating ‘system-wide coherence’, and expanding and refocusing the UN’s ‘early warning and assessment capacities’. Implementation of the concept thus involves further consolidating and integrating the techniques of executive action initiated by Dag Hammarskjöld, the second Secretary-General of the United Nations, and discussed in yesterday's post.

Normative significance
What, then, does thinking about the responsibility to protect concept in light of this history suggest about its normative significance?

On May 25

On this day in ...
... 1997 (15 years ago), in a national referendum, Polish voters approved a new Constitution of the Republic of Poland, which had been adopted by the Sejm and Senate, the lower and upper houses of the National Assembly, in a joint session on April 2. Entering into force on October 17, 1997, the new document replaced a "Small Constitution" that "amended the main articles of the Stalinist constitution of 1952 and formed the legal basis of the Polish State between 1990 and 1997."  Still in effect, the 1997 Constitution guarantees many rights to individuals, with special reference to families and children.

(Prior May 25 posts are here, here, here, here, and here.)

Bensouda on Bashir & Bosco (& Barack)

A lot of "B"s in one interview playing today at the Beeb.
Interviewed was Fatou Bensouda, who will become Chief Prosecutor of the International Criminal Court on July 1.
Karen Allen of the BBC  talked with Bensouda on the fringes of a conference in Cape Town, South Africa. Africa and the ICC, a theme on which we've frequently posted, thus was at the core of the interview. (Video, from which above image of Bensouda was made, is available here.)
The name of Bashir of course came up. That would be Omar al-Bashir, who has remained President of Sudan despite the years-old ICC warrant for his arrest. Some countries that belong both to the ICC and the African Union have allowed him safe passage; recently, one of them, Malawi, has reversed course and sought to ban Bashir.
On this, Bensouda said:

'[T]he step that Malawi has taken is very encouraging. We have of course had other African countries that have done similar things. I think Botswana has been very consistent in the position of arresting Bashir if he were to go to Botswana.
'But I also want to make one thing clear. What is out there in the media, mostly, is that African Union is not cooperating with the ICC. And of course there are certain examples why this is said. But I want to say that we have had tremendously good cooperation with individual African states.'

This comment moved conversation to another name, Bosco – Bosco Ntaganda, charged with war crimes when he, like his then-co-accused, Thomas Lubanga, was a Congolese rebel leader. Lubanga awaits ICC sentencing, having been convicted of recruiting child soldiers. Ntaganda managed not just to escape arrest, but also to become a general in the government's army, and so to wield much power. Earlier this month, the ICC added charges against Ntaganda, who reportedly "mutinied" in April and is now forcing children to join his new combat against the government.
On this, Bensouda said:

'[T]hose who have warrants out for them, for their arrest, should be arrested and surrendered to the ICC. This level of "blackmail," which I call it, in which perpetrators are saying that "If you do not drop warrants against me, or if you issue warrants against me, I continue to kill people," I think this is what the international community, especially those who are directly responsible for the arrest of Bosco, should take into account.'

Finally the BBC interview of Bensouda evoked the name Barack – President Barack Obama, who's deployed U.S. troops to Uganda to aid "the removal of Joseph Kony from the battlefield." On this, Bensouda reminded that the ICC relies on states to execute its warrants, including the years-old one for Lord's Resistance Army leader Kony, subject of a NGO-issued viral video, about IntLawGrrls have posted.
On the U.S. role, Bensouda said:

'It is not directly an assistance to the ICC as such, if I may put it that way. It is a request from Uganda, not from the ICC, from Uganda as a state. And also it is a push by Invisible Children on the United States government to do something. ... [T]he Kony 2012 video has done a lot to bring attention to this.'

Asked by the BBC if she thought the United States would ratify the ICC Statute should Obama win re-election this November, Bensouda gave a most politic reply:

'I have refrained from commenting on any state that is not party to the Rome Statute. But I do know that the universality of the court is a good thing for international criminal justice.'

Introducing Anne Orford

It's our great pleasure today to welcome as an IntLawGrrls contributor Dr. Anne Orford (left), Michael D. Kirby Professor of International Law and Australian Research Council Future Fellow at Melbourne Law School. She also served for many years as the law school's Foundation Director of the Institute for International Law and the Humanities.
We're especially pleased to welcome Anne this week:
Tomorrow, at Sweden's Lund Cathedral, Lund University will give her an honorary doctorate in law

'for her research that releases international law into its full intellectual, political and emancipatory complexity.'

(The other honoree will be Marianne Lundius, President of Sweden's Supreme Court and the 1st woman to hold that position.)
A scholar in many aspects of international law – international trade law, law and development, legal history, legal theory, and post-colonial theory – Anne's been awarded 2 Australian Research Council fellowships, the current one for a 3-year project entitled "From Famine to Food Security: The Role of International Law." She's visited as a teacher or researcher at many universities, among them Lund and Gothenburg in Sweden and Harvard and NYU in the United States. In Germany last month, she presented the Rechtskulturen lecture hosted by the Wissenschaftskolleg zu Berlin and Humboldt University Law School.
Anne earned a bachelor's degree from the University of Queensland, the Australian state where she's admitted to practice as a solicitor; a master's degree in public international law from the University of London; and a Ph.D. from the University of Adelaide, which also awarded her the Bonython Prize for the best postgraduate law thesis.
Among her many publications is International Authority and the Responsibility to Protect (2011). Anne drew on that work for her presentation at "Military Intervention and the Law of Peace," the plenary panel that opened the March 2012 annual meeting of the American Society of International Law. Patricia O'Brien, the Under-Secretary for Legal Affairs and the U.N. Legal Counsel already has honored us by contributing her remarks at that panel as an IntLawGrrls post. Today Anne does the same. Her introductory post below, as well as her post tomorrow, make up a 2-part exploration of the significance of a concept about which IntLawGrrls frequently have posted, the responsibility to protect.
Anne dedicates her contribution as follows:

'In terms of a transnational foremother, and in the spirit of receiving an honorary doctorate from Sweden, I would like to propose Alva Myrdal – a feminist intellectual who is now treated as one of the major architects of the Swedish welfare state. Myrdal's activism, scholarship, and policy development were based upon a deep-seated conviction that social planning based upon factual knowledge and explicitly articulated values is not only desirable, but also necessary, if the modern state is to be made hospitable for women and children.

'In 1949, at the invitation of the Norwegian Secretary-General Trygve Lie, Myrdal became head of the UN's Department of Social Affairs ­ the highest-placed woman in any international organisation. In that role, she worked on issues including population, human rights, refugees, and the status of women. From 1950 to 1955, Myrdal chaired the Division of Social Sciences at UNESCO. By 1953, Myrdal had begun to voice her concerns that development under UN auspices had become a field for outsiders enforcing American-financed development projects that required large capital outlays and bore little relation to the values and knowledge of local communities.
Myrdal left the UN to serve as Swedish Ambassador to India, Burma, Ceylon (now Sri Lanka), and Nepal from 1955 to 1961. During that period, she became a close friend and political ally of the Indian Prime Minister Jawaharlal Nehru.
'She is perhaps most famous for her later work on disarmament, ­as Swedish Ambassador to the Geneva disarmament negotiations, the Swedish Cabinet Minister for Disarmament (1966-1973), and the author of The Game of Disarmament (1976), ­ for which she was awarded the Nobel Peace Prize in 1982.'

Myrdal (photo credit), who died in 1986 in Stockholm, the day after her 84th birthday, joins other inspiring women on IntLawGrrls' foremothers page.

Heartfelt welcome!

Executive action at the United Nations, a basis for the concept of responsibility to protect

(My thanks to IntLawGrrls for the opportunity to contribute this introductory post, part of a 2-part series based on a paper that will appear in the 2012 American Society of International Law Annual Meeting Proceedings)

According to UN Secretary-General Ban Ki-moon (right), while the responsibility to protect concept came of age in 2011, the challenge facing the international community remains that of transforming the concept from ‘promise to practice’ or from ‘words into deeds’. In my view, the significance of the concept lies in its capacity to do the reverse – that is, to transform practice into promise, or deeds into words.
More specifically, the responsibility to protect concept offers a framework for rationalising and consolidating practices of international executive rule, many of which were developed by Dag Hammarskjöld (below left), the second Secretary-General of the United Nations, in the early years of decolonisation. (UN photo credits here and here)

Practices of protection: Executive action & the UN Charter

The idea that the UN has a responsibility to protect life in the decolonised world began to take shape with two operations that were undertaken while Hammarskjöld was in office:
► UNEF, the UN Emergency Force in response to the Suez crisis of 1956; and
► ONUC, the UN Operation in the Congo in 1960.
The techniques of executive rule developed under Hammarskjöld’s auspices during those early crises of decolonisation – fact-finding, peacekeeping, strategic forms of technical assistance, and civilian administration – have, of course, since expanded dramatically. Yet as Hammarskjöld recognised, little in the UN Charter suggests its authors envisaged the creation of an international executive that could undertake such wide-ranging forms of action.
In the Introduction to his 1961 Annual Report to the General Assembly (accessible here), Hammarskjöld noted that although ‘great attention is given’ in the UN Charter to elaborating ‘the parliamentary aspects of the Organization, little is said about executive arrangements’. To the extent that there exists an explicit legal basis for these forms of executive action, Hammarskjöld found it in the provisions of the Charter entrusting the Secretary-General with the execution of political decisions at the request of the political organs, and in Article 99, which provides that the Secretary-General

'may bring to the attention of the Security Council any matter which in his opinion may threaten the maintenance of international peace and security.'

Hammarskjöld (prior IntLawGrrls posts) interpreted these provisions as giving the Secretary-General a position of full political independence and a broad discretionary mandate to engage in fact-finding, preventive diplomacy, and other behind-the-scenes activity necessary to carry out his functions. He thus did not interpret the limited attention in the Charter as a constraint on executive action. Rather, he considered that ‘the executive functions and their form have been left largely to practice’. He argued forcefully that it was necessary to stop thinking of the UN merely as a forum for ‘static conference diplomacy’ and instead reimagine it as a ‘dynamic instrument’ for ‘executive action, undertaken on behalf of all members’. And he emphasised the ‘margin of confidence’ that ‘must be left to those who will carry the responsibility for putting the decisions’ of the political organs ‘into effect’.
International lawyers in the 1950s and ’60s were well aware of the potentially radical effect of this expansion of international executive action. For example, Stephen Schwebel presciently commented in his 1961 book The Origins and Development of Article 99 (p. 382):

On May 24

On this day in ...

... 2002 (10 years ago today), at Moscow, in a ceremony featuring Presidents Vladimir Putin, at far left, and George W. Bush, Russia and the United States signed the Strategic Offensive Reductions Treaty. (photo credit) Known as SORT, the weapons control treaty entered into force in 2003 and remained so until 2011, when it was superseded by the New START treaty discussed in prior IntLawGrrls posts.

(Prior May 24 posts are here, here, here, here, and here.)