Drawing links between initiatives to increase protection of children during armed conflict & similar violence


“‘Protecting Children’: A Welcome Addition to Efforts to Redress Wartime Harms,” an essay I published yesterday at Just Security, underscores connections among a number of recent initiatives related to children and armed conflict.

The essay welcomes Protecting Children in Armed Conflict (Hart Publishing 2018), the 600-page report of the 2017 Inquiry on Protecting Children in Armed Conflict spearheaded by Gordon Brown, former British Prime Minister and current UN Special Envoy for Global Education. (I served on the Inquiry’s Advisory Panel.)

Leading a team of researchers was Shaheed Fatima QC, a barrister at London’s Blackstone Chambers, who spoke on this work at the International Law Weekend panel last month. (prior post here) My Just Security essay offers a detailed description and favorable critique of this research, noting the work’s connections with what the UN Security Council terms the “Six Grave Violations against Children in Armed Conflict.”

The essay further draws links between this work and the 2016 International Criminal Court Office of the Prosecutor Policy on Children, which I had the honor of helping to prepare in my ongoing service as ICC Prosecutor Fatou Bensouda’s Special Adviser on Children in & affected by Armed Conflict. (prior post here) The essay points to “the complementary potential of these and other initiatives,” and concludes:

Together, they may advance two essential goals: first, to articulate norms prohibiting wartime harms against children; and second, to secure redress for any such harms that occur.

My Just Security essay is here. It is part of a miniforum which began with a post last week jointly authored by Fatima and Brown, available here. The Just Security series will continue with forthcoming posts by Sarah Knuckey (Columbia Law), Alex Moorehead (Columbia Law), and Alex Whiting (Harvard Law).

(Cross-posted from Diane Marie Amann)

Accountability for harms to children during armed conflict discussed at Center-sponsored ILW panel

NEW YORK – Ways to redress offenses against children during armed conflict formed the core of the panel that our University of Georgia School of Law Dean Rusk International Law Center sponsored last Friday at International Law Weekend, an annual three-day conference presented by the American Branch of the International Law Association and the International Law Students Association. I was honored to take part.

► Opening our panel was Shaheed Fatima QC (top right), a barrister at Blackstone Chambers in London, who led a panel of researchers for the Inquiry on Protecting Children in Conflict, an initiative chaired by Gordon Brown, former United Kingdom Prime Minister and current UN Special Envoy for Global Education.

As Fatima explained, the Inquiry focused on harms that the UN Security Council has identified as “six grave violations” against children in conflict; specifically, killing and maiming; recruitment or use as soldiers; sexual violence; abduction; attacks against schools or hospitals; and denial of humanitarian access. With regard to each, the Inquiry identified legal frameworks in international criminal law, international humanitarian law, and international human rights law. It proposed a new means for redress: promulgation of a “single instrument” that would permit individual communications, for an expressed set of violations, to the Committee on the Rights of the Child, the treaty body that monitors compliance with the Convention on the Rights of the Child and its three optional protocols. These findings and recommendations have just been published as Protecting Children in Armed Conflict (Hart 2018).

► Next, Mara Redlich Revkin (2d from left), a Ph.D. Candidate in Political Science at Yale University and Lead Researcher on Iraq and Syria for the United Nations University Project on Children and Extreme Violence.

She drew from her fieldwork to provide a thick description of children’s experiences in regions controlled by the Islamic State, an armed group devoted to state-building – “rebel governance,” as Revkin termed it. Because the IS sees children as its future, she said, it makes population growth a priority, and exercises its control over schools and other “sites for the weaponization of children.” Children who manage to free themselves from the group encounter new problems on account of states’ responses, responses that Revkin has found often to be at odds with public opinion. These range from the  harsh punishment of every child once associated with IS, without considering the extent of that association, to the rejection of IS-issued birth certificates, thus rendering a child stateless.

► Then came yours truly, Diane Marie Amann (left), Emily & Ernest Woodruff Chair in International Law here at the University of Georgia School of Law and our Center’s Faculty Co-Director. I served as a member of the Inquiry’s Advisory Board.

Discussing my service as the Special Adviser to the Prosecutor of the International Criminal Court on Children in and affected by Armed Conflict, I focused on the preparation and contents of the 2016 ICC OTP Policy on Children, available here in Arabic, English, French, Spanish, and Swahili. The Policy pinpoints the crimes against and affecting children that may be punished pursuant to the Rome Statute of the International Criminal Court, and it further delineates a “child-sensitive approach” to OTP work at all stages, including investigation, charging, prosecution, and witness protection.

► Summing up the conversation was Harold Hongju Koh (2d from right), Sterling Professor of International Law at Yale Law School and former Legal Adviser to the U.S. Department of State, who served as a consultant to the Inquiry.

Together, he said, the presentations comprised “5 I’s: Inquiry, Iraq and Syria, the ICC, and” – evoking the theme of the conference – “international law and why it matters.” Koh lauded the Inquiry’s report as “agenda-setting,” and its proposal for a means to civil redress as a “panda’s thumb” response that bears serious consideration. Koh envisaged that in some future administration the United States – the only country in the world not to have ratified the Convention on the Rights of the Child – might come to ratify the proposed new  protocol, as it has the optional protocols relating to children in armed conflict and the sale of children.

The panel thus trained attention on the harms children experience amid conflict and called for redoubled efforts to secure accountability and compensation for such harms.

(Cross-posted from Diane Marie Amann)

Exploring “Executive Branch Lawyering” with US Judge David Barron, former head of Department of Justice Office of Legal Counsel

Executive Branch Lawyering course, from left: Maria Eliot, Wade Herring, Professor Diane Marie Amann, Sarah Mirza, Hanna Karimipour, Jennifer Cotton, Taylor Samuels, Judge David J. Barron, Morgan Pollard, Keelin Cronin, Joe Stuhrenberg

Who decides how America wages war?

What does “commander in chief” mean?

What (national or international) laws govern the United States’ waging of war?

How and by whom are those law identified, interpreted, decided, and implemented?

Those questions and many more arose during the Executive Branch Lawyering course that I just had the honor of co-teaching with David J. Barron, Judge of the U.S. Court of Appeals for the 1st Circuit and also The Honorable S. William Green Visiting Professor of Public Law at Harvard Law School, where he had taught full-time before his 2014 appointment to the federal bench.

My own association with Barron – like me, a former law clerk to U.S. Supreme Court Justice John Paul Stevens – dates to 2008. That year, Barron and I were among the charter contributors to “Convictions,” a legal blog published for a time at Slate. And in 2017 Judge Barron began serving on the Judicial Advisory Board of the American Society of International Law, with which I am affiliated thanks to my editorship of ASIL’s Benchbook on International Law (2014).

For an 18-month period between those years, Barron served as Assistant Attorney General in charge of the Office of Legal Counsel, providing legal advice to then-President Barack Obama and to agencies in the Executive Branch. That experience formed the basis of the 1-credit course that he and I co-taught last week at my home institution, the University of Georgia School of Law.

Our texts included Barron’s 2016 book, Waging War: The Clash Between Presidents and Congress, 1776 to ISIS, as well as The Terror Presidency: Law and Judgment Inside the Bush Administration, a 2009 memoir by Harvard Law Professor Jack Goldsmith, who had led OLC from 2003 to 2004 – plus executive orders, congressional enactments, judicial decisions, and other primary materials.

To prepare for sessions with Judge Barron, a topnotch group of 9 Georgia Law students and I examined a selection of historical moments when Presidents’ war-waging generated tensions, with other branches of government established in the U.S. Constitution and with other stakeholders. Of particular concern were instances related to executive detention in time of war, for example: treatment of British officers held during the American Revolution; General Andrew Jackson’s jailing of a judge who issued a writ of habeas corpus during the 1814 military occupation of New Orleans; and 2 capital military trials, the 1st of an Indiana civilian in the Civil War and the 2d of Nazi saboteurs in World War II.

Sessions with Judge Barron concerned US executive detention and related issues since the terrorist attack of September 11, 2001. The focus was on OLC’s legal, ethical, and practical duties in advising on such policies – and, through careful and extensive role-playing, on how Executive Branch lawyers go about the day-to-day work of giving such advice.

A most valued, and rewarding, teaching experience.

(Cross-posted from Diane Marie Amann blog)

Georgia Law dean, alumnus co-author essay on human rights lawsuits in US

Alien Tort Cases Will Survive Supreme Court Trim,” predicts an essay published Monday in the Daily Report. Co-authoring the essay were Peter B. “Bo” Rutledge, Herman Talmadge Chair and Dean at the University of Georgia School of Law, and Michael Baker (JD’18), a Law Clerk for Superior Court Judge Ron Mullins, Chattahoochee Judicial Circuit. (Among other achievements, Baker served last year as Executive Conference Editor for the Georgia Journal of International & Comparative Law.)

In their essay, Rutledge and Baker noted that in the last several decades federal courts have adjudicated many lawsuits testing the scope of the Alien Tort Statute of 1789, which states:

The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.

Most recently, that litigation gave rise to the April 2018 decision in Jesner v. Arab Bank, in which the U.S. Supreme Court held that the statute does not permit suits against foreign corporations.

Taking issue with commentators who have viewed Jesner as “a blow … to the cause of human rights,” the essay outlined, with references to other federal cases, “three anticipated battlegrounds in future ATS litigation.” Specifically, the decision in Jesner leaves open:

  1. Whether the statute precludes suits against all corporate defendants, or just against foreign corporations.
  2. Whether corporate officers remain liable even if lawsuits may not proceed against the corporation with which they are affiliated.
  3. What is the “degree of domestic conduct necessary for the ATS to have effect.”

The authors thus conclude:

“[T]he only certainty is that ATS litigation remains a ripe area for international human rights litigation.”

Their full essay is here.

Briefings from eminent international law judges, plus meetings at Lebanon tribunal, conclude our 2018 Global Governance Summer School

From left, at the Peace Palace, Georgia Law’s Global Governance Summer School students Saif Ahmed, Mills Culver, Bryant Oliver, Maddie Neel, Frances Plunkett, Brooke Carrington, Hanna Karimipour, and Caroline Harvey

THE HAGUE – Briefings from two eminent international law judges anchored the conclusion of our 2018 Global Governance Summer School (prior posts).

This morning, students heard from Sir Christopher Greenwood, a Briton who serves as a member of the Iran-United States Claims Tribunal. Though a presentation accented by anecdotes, he explained the history of US-Iran relations that led to establishment of the tribunal in 1981, the work of the tribunal over the last several decades, and its pending cases.

The presentation by Judge Greenwood, who had served from 2009 until early this year on the International Court of Justice, followed presentations at the latter court yesterday afternoon.

Most notably, the Honorable Joan Donoghue of the United States, one of the ICJ’s 15 permanent judges, spoke yesterday with students, both about the melding of the common and civil law systems in the court’s procedures and about the challenges of judging in the international context.

Also at the ICJ, Julia Sherman, a Judicial Fellow who works with Judge Donoghue, provided a tour of the ICJ’s headquarters, the 105-year-old Peace Palace. Sherman led students through the life cycle of an ICJ case, and also gave overviews of some recently decided ICJ cases.

Our summer school had started yesterday at the Special Tribunal for Lebanon, where representatives of the various court organs spoke to students. They included: Kirsten Calhoun, a Legal Officer in Chambers, who gave an overview of the tribunal’s history and mandate, as well as an introduction to the applicable law; Peter Koelling, Chief of the Registry’s Court Management Services Section; TJ Adhihetty, Trial Counsel in the Office of the Prosecutor, who walked students through the prosecution’s case in Prosecutor v. Ayyash et al., focusing on call data records; and Marie-Pier Barbeau, Legal Officer in the Legal Advisory Section of the tribunal’s Defence Office, and Jason Antley, Associate Legal Officer representing the interests of defendant Salim Jamil Ayyash, who discussed the challenges of representing the named defendants in absentia.

The Global Governance Summer School having come to and end, some students began or continued Global Externships, while others traveled in Europe before returning to the United States.

Global Governance Summer School: Hague briefings begin with International Criminal Court

THE HAGUE – Our 2018 Global Governance Summer School has moved to this Dutch capital for several days of briefings at international organizations devoted to securing accountability and reparations for violations of international law. Today centered on the International Criminal Court, a permanent organization that began operating at The Hague in 2002. Its founding charter, the Rome Statute of the ICC, was adopted 20 years ago this month.

Our Georgia Law students, who spent last week at the Leuven Centre for Global Governance Studies, first visited Leiden Law School‘s Hague campus, where two international lawyers – Niamh Hayes and Leiden Law Professor Joe Powderly – talked with them about a range of issues (left). These included the development of international criminal law, practical and academic career opportunities for young lawyers interested in the area, and the advantages gained by working in The Hague on the “inside” of international criminal law issues.

The rest of the day was spent at the ICC’s Permanent Premises, located on the dunes near The Hague’s North Sea coast. Highlights of the visit included:

► A meeting with Prosecutor Fatou Bensouda (top), for whom our summer school’s co-director, Georgia Law Professor Diane Marie Amann, serves as Special Adviser on Children in & affected by Armed Conflict. Bensouda described her own path to practicing international criminal law. While acknowledging the barriers to achieving justice, she expressed the urgency of continuing the effort, on behalf of global society as well as the victims of international crimes.

► An audience with Judge Geoffrey A. Henderson (left) of Trinidad and Tobago, who was elected to the ICC in 2013 and serves in the Trial Division. Henderson emphasized the challenges of judging in a context that brings together the civil and common law systems, and offered encouragement that engaged students can change the world.

► A presentation on the work of lawyers in the court’s Registry from Elizabeth Little, Special Assistant to the Registrar, Special Assistant to the Registrar, and an overview of the court’s work from ensuring the right to family life of the accused to assisting the indigent select defense counsel.

Together, these presentations made for an informative and inspiring day in court.

Belgium week of our Global Governance Summer School concludes on a (World Cup) celebratory note

LEUVEN – Final sessions of our 2018 Global Governance Summer School‘s Belgium leg came to an end yesterday, even as the country’s national team vaulted into the final four of the World Cup.

Day 5 of the summer school, devoted to Global Security Governance,  began with a lecture by Dr. Nicolas Hachez. He is a Fellow at the Leuven Centre for Global Governance Studies, University of Leuven, with which we at the Dean Rusk International Law Center, University of Georgia School of Law, partner to present the Global Governance Summer School. Hachez’ lecture began with an historical account dating to Aristotle, and ended with a survey of contemporary challenges to rule of law and democracy. (Just below, he listens to a response from Georgia Law student Brooke Carrington.) The presentation provided a valuable recap of many issues raised at the high-level RECONNECT conference our students attended earlier in the week.

Next, yours truly, Georgia Law Professor Diane Marie Amann, Emily & Ernest Woodruff Chair in International Law, one of our Center’s Faculty Co-Directors, and a founding Co-Director of the Global Governance Summer School. I introduced the concept of Global Security Governance, which incorporates within its analysis of human, national, and collective security insights from traditional international law subfields like human rights, the laws of war, and development law.

Our Center’s Director, Kathleen A. Doty, offered an overview of legal regimes related to disarmament and weapons control, including the Nuclear Non-Proliferation Treaty and the Chemical Weapons Convention. Then, as pictured at top, she led our summer school students – variously educated at Georgia Law, Leuven, and several other European institutions – in a spirited, simulated, multilateral negotiation for a new treaty to curb an imagined new development in weapons technology.

The week’s classroom component concluded with a lecture on “Global Governance, International Law and Informal Lawmaking in Times of Antiglobalism and Populism” by Leuven Professor Jan Wouters (right), Jean Monnet Chair ad personam EU and Global Governance, Full Professor of International Law and International Organizations, Director of the Leuven Centre for Global Governance Studies, and founding Co-Director of our summer school. Touching on concepts and issues introduced throughout the week, Wouters exposed shortcomings of classic international law. He further urged greater acceptance of the significance of informal lawmaking actors, norms, and processes, which form the core of global governance studies.

Leuven and Georgia Law students, faculty, staff, and friends then enjoyed a conference dinner, plus a live, and lively, screening of the Belgium Red Devils’ 2-1 World Cup victory over Brazil – then headed to Oude Markt to celebrate with other denizens of this lovely city.