Georgia Law Professor Amann publishes “International Child Law and the Settlement of Ukraine-Russia and Other Conflicts” in International Law Studies

Georgia Law Professor Diane Marie Amann has published, in the century-old, peer-reviewed international law journal of the U.S. Naval War College, an article analyzed international child law in order to imagine ways that peace processes may engage with children and ensure that children’s issues are addressed in future peace agreements.

Entitled “International Child Law and the Settlement of Ukraine-Russia and Other Conflicts,” the article appears at 99 International Law Studies 559-601 (2022) and is available here.

Amann, who is Regents’ Professor of International Law, Emily & Ernest Woodruff Chair in International Law, and Faculty Co-Director of the Dean Rusk International Law Center here at the University of Georgia School of Law, she served from 2012 to 2021 as the Special Adviser to the International Criminal Court Prosecutor on Children in & affected by Armed Conflict.

She undertook research on this topic while a Visiting Academic at University College London this past summer. An earlier version of her research forms part of the Ukraine Peace Settlement Project of the Lauterpacht Centre for International Law at the University of Cambridge in the United Kingdom. (prior post)

Here’s the abstract for Amann’s just-published article:

The Ukraine-Russia conflict has wreaked disproportionate harms upon children. Hundreds reportedly were killed or wounded within the opening months of the conflict, thousands lost loved ones, and millions left their homes, their schools, and their communities. Yet public discussions of how to settle the conflict contain very little at all about children. This article seeks to change that dynamic. It builds on a relatively recent trend, one that situates human rights within the structure of peace negotiations, to push for particularized treatment of children’s experiences, needs, rights, and capacities in eventual negotiations. The article draws upon twenty-first century projects that examine the lives of children in armed conflict by synthesizing international child law. The projects’ syntheses have influenced the work of certain international organizations bodies but not, to date, the work of peace settlements.

To demonstrate their relevance to conflict resolution, the article first outlines two syntheses by the United Nations and by the International Criminal Court Office of the Prosecutor. After mapping child rights and conflict harms, it examines the treatment of children in Colombia’s 2016 peace agreement and a 1999 agreement related to Sierra Leone. The article concludes by proposing child-inclusive options for peace processes and eventual peace agreements.

While Visiting Academic at University College London, Georgia Law Professor Amann presents “No Exit at Nuremberg”

Georgia Law Professor Diane Marie Amann gave a presentation yesterday at University College London Faculty of Laws, where she is a Visiting Academic for all of Summer 2022.

Her talk, entitled “No Exit at Nuremberg: The Postwar Order As Stage for 21st-Century Global Insecurity” (video here) drew upon her research on participants at the post-World War II International Military Tribunal, as well as an existentialist play written toward the end of that long war. The talk investigated the relationship of international criminal justice to security with particular reference to the ongoing Ukraine-Russia conflict.

Amann is Regents’ Professor of International Law, Emily & Ernest Woodruff Chair in International Law, and Faculty Co-Director of the Dean Rusk International Law Center here at the University of Georgia School of Law (she is pictured above at the right of the table). Chairing her talk in London yesterday, and moderating questions from in-person and online attendees was Dr. Martins Paparinskis (above left), a Reader in Public International Law at UCL who recently was elected to an upcoming term on the United Nations’ International Law Commission.

Dean Rusk International Law Center hosts “International Law and the Ukraine-Russia Conflict,” featuring Georgia Law Professors Amann, Cohen, and Durkee

Nearly a hundred members of the University of Georgia School of Law community took part Wednesday in “International Law and the Ukraine-Russia Conflict,” a forum hosted by our Dean Rusk International Law Center and presented by three international law experts on the law school’s faculty.

The armed conflict began on February 24, 2022, when Russian military troops invaded the neighboring state of Ukraine, entering the latter country at points on its northern, eastern, and southern borders. At this writing just a week later, thousands of persons, civilians and combatants alike, reportedly had been killed, and, according to UN High Commissioner for Refugees Filippo Grandi, more than a million Ukrainians had been forcibly displaced.

At Wednesday’s forum, each of the three Georgia Law professors first offered a brief overview of a particular aspect of the armed conflict:

  • Our Center’s Director, Melissa J. “MJ” Durkee, who is also Associate Dean for International Programs and Allen Post Professor, began by outlining the international rules that have outlawed aggressive war – that is, one country’s unjustified invasion of another – since the adoption of the 1945 Charter of the United Nations. She explained why reasons that Russia has put forward do not constitute legally valid justifications for the invasion, and further emphasized the threat that Russia’s actions place on the international rules-based order that came into being after the Allied victory in World War II. In so doing, Durkee cited a UN General Assembly resolution, adopted Wednesday by a huge majority of votes, which condemned Russia’s actions as violative of this order.
  • Next came Harlan Grant Cohen, who is Gabriel M. Wilner/UGA Foundation Professor in International Law and one of our Center’s 2 Faculty Co-Directors. Cohen focused on economic sanctions that have been levied against Russia in the last week, by individual countries including the United States and also by international organizations including the European Union. While noting that these types of economic actions had been developed in response to Iran’s nuclear program, Cohen stressed that the extent and impact of the sanctions already imposed against Russia is unprecedented.
  • Then followed our Center’s other Faculty Co-Director, Diane Marie Amann, who is also Regents’ Professor of International Law and Emily & Ernest Woodruff Chair in International Law. She addressed international humanitarian law, the body of law concerned with the ways that armies and armed groups actually conduct the war. She underscored that this body of law concerns itself with all sides of the conflict, regardless of who started the conflict: fighters on either side may be found liable for violations, and thus charged with war crimes. Amann concluded with a look at forums already engaged to review legal issues arising out of the war, among them the European Court of Human Rights, International Criminal Court, and International Court of Justice.

The forum concluded with a lively and wide-ranging question-and-answer period.

Brutal Peace: Lieber Code, NATO mission, and personal journey, by Georgia Law 3L Miles S. Porter


In this item, Miles S. Porter, a J.D. candidate in the University of Georgia School of Law Class of 2021, reflects on his Spring 2020 full-semester externship at NATO HQ SACT in Norfolk, Virginia. Miles’ background includes: B.A. degree in international relations and German, University of South Carolina 2011; U.S. Army active duty 2013-2018, including tour in Afghanistan; and U.S. Army reservist since 2018.

Peace can be brutal. I am reminded of this axiom as an unwelcome silence invades my office space from the street below. The COVID-19 pandemic has brought life to what some have called a “peaceful” and “virtual” standstill. But with an unprecedented 30-plus million Americans claiming unemployment in the last month, “brutal” seems a more appropriate descriptor.

Like many of my peers, I finished my spring semester externship from home, a mere 800 socially distanced miles from my worksite, the NATO headquarters in Norfolk. Early on, I had looked forward to watching the 30th flag raised at Norfolk in honor of North Macedonia’s recent membership, to enjoying the parade of nations at the NATO Festival, and to hearing former NATO Supreme Allied Commander Transformation General James Mattis speak at the Norfolk Forum. Instead I am at home, reflecting.

While America finds itself embroiled in yet another metaphorical war, against COVID,  perhaps it is appropriate then that my thoughts have ultimately turned to war itself. Specifically, they have turned to a theory of war that decries the paradox of a “humane war.” This paradox is explored in the 2012 book I read as part of my externship tutorial: Lincoln’s Code: The Laws of War in American History, by Yale Law Professor John Fabian Witt. A compelling narrative about one of the first codifications of the laws of war and perhaps one of the earliest uses of lawfare, Lincoln’s Code is more page-turning adventure story than legal treatise.

The book’s conclusions, far from uncontroversial, initially resonated with me. But they also raised important questions about the role of NATO, the rule of law, and the future of warfare. This post will examine those questions, then end with some thoughts on my NATO experience.

Now to “Old Hundred.”

“Old Hundred”

The U.S. War Department issued General Order No. 100, also known as the Lieber Code, in May 1863, at the height of America’s bloodiest war. Commissioned by President Abraham Lincoln’s Secretary of War, Edwin Stanton, and endorsed by the General-in-Chief of all Union Armies, Henry Halleck—an attorney himself—the “Old Hundred” was a necessary contribution to the Union’s war efforts. First, it helped frame the conflict in legal terms, extending law of war protections to prisoners and proving to foreign states that the Union’s actions were in fact legitimate. Second, it enabled Lincoln to achieve his goal of emancipation.

Lincoln had won the 1860 election on a platform that denounced the expansion of slavery into new states. This precipitated the secession of South Carolina even while James Buchanan was still President, and set the nation on the path to civil war.

The story of The Code is told in tandem with the story of its author, and the maxims within are better read as a story of lessons learned. While Francis Lieber was an academic, a professor first at the University of South Carolina and later at what is now Columbia University, he was also a soldier. He was someone who had his family and his life torn apart by war. His sons fought on opposite sides during the conflict he helped to end. Rather than devote himself to pacifism, however, Lieber thought the call to arms was “the most honorable calling of mankind” and that “when carried on by civilized peoples, just wars were the way civilization spread. … Justice, not peace, [was] the highest ideal.”  (Witt 178). Not only did he believe in the importance of just wars, Lieber had kept slaves himself for a time and had seen firsthand the effects of slavery while living in South Carolina. It is in this context that “Old Hundred” should be read.

A notable characteristic of Lieber’s work was that it ran counter to then-conventional doctrine on the laws of war. Lieber openly spoke out against the end of war advocated by the leading contemporary European thinkers (182), preferring the writings of older theorists like Clausewitz. Humanizing wars, in Lieber’s opinion, had the paradoxical effect of prolonging human suffering.  He urged short and sharp wars because “the more earnestly and keenly wars are carried on, the better for humanity, for peace and civilization.” (184) This became the basis for the last sentence in Article 29 of his Code:

“Sharp wars are brief.”

The principle at the essence of the Code is military necessity. As Witt shows, military necessity became an almost absolute power, remarkable for what it forbade and more remarkable for what it allowed. Torture was expressly forbidden but the starvation of villages, emancipation of slaves as enemy property, and martial law were permitted, even expected. And yet the principle persisted, so that in the present day military necessity is one of the five accepted principles of the laws of armed conflict, or LOAC.

“Old Hundred” quickly gained traction abroad. European lawyers and politicians had been searching to codify their own “enlightened” laws of war after over a century of bloody conflicts. To this end, they concluded the very first Geneva Convention in 1864. Yet delegates at that Geneva Conference, influenced by some of the more pacifistic thinkers of the day, had gone in a somewhat different direction than Lieber. Their Convention outlawed some of the barbarities of war, reforming war in the hopes of one day ending it altogether. This approach foretold advancements in the laws of war that would occur in the wake of the World Wars of the 20th century.

Choosing an Approach

The Charter of the United Nations was signed and entered into force in 1945.  A short five years later, the North Atlantic Treaty, NATO’s founding document, likewise was signed and entered into force. Today, in 2020, Kabul, Afghanistan, has been the site of armed conflict and a nearly two-decades-long military presence by America and its NATO allies. The fact provokes questions:

  • Is the “forever war” a byproduct of the humanization of warfare?
  • Is that result what Francis Lieber had fought so vehemently against? Or is it merely indicative of the progress made towards the abolishment of warfare as an institution, which the United Nations and its progeny were designed to facilitate?
  • By sheathing the short war, have we lost a valuable weapon in our proverbial arsenal, holding ourselves to morals that our less scrupulous foes may not?

These were the questions that I faced after reading Lincoln’s Code.

Initially, I embraced the short, sharp wars advocated by Lieber, Tolstoy, and Clausewitz. Frustrated by a perceived lack of progress in recent war efforts and the absence of defining victories (ignoring a certain shipboard declaration of victory), my inclination was towards a strategy of power, shock, and awe. I thought that .

After further consideration, I think maybe this initial reaction was a bit rash: While I agree with many of the principles and ideals set forth by Lieber and his short-war sympathizers, I believe that he made some key mistakes. Like many who romanticize, he failed to account for the realities of the world.

If we do the same, we do so at our own peril.

Short wars reached their pinnacle with the Cold War. That is ironic since the Cold War was long – nearly a half-century prompted by the threat of the ultimate short war, nuclear war.  The international community has since demonstrated a strong aversion to this inhumane form of short war, to the point that in a near-peer conflict it may be more than ill-advised, it may be a nearly impossible strategy to pursue.  The changing instrumentalities of war, towards weapons of mass destruction, have altered the calculus of war.  As America’s near-peer adversaries retain an interest in a balanced geo-political environment, even short wars with non-nuclear equipped opponents seems unlikely.  The new realities of warfare include nuclear weapons, and as long as this remains true, the possibility of short wars will remain distant.

Post-Cold War NATO, or NATO 2.0, represents the other side of this equation. The military alliance, initially established as a After the USSR fell, NATO endured. It participated in some of the largest humanitarian efforts of the 20th and 21st centuries, in places like Kosovo, Haiti, and Afghanistan.

In truth, globalization, the threat of nuclear warfare, and a determined international effort to outlaw war have changed the face of warfare completely. Warfare today is about competition, about living in the gray areas of the law. It resembles humanitarian aid more than it does Gettysburg or Antietam.

Democracy, liberty, and the rule of law are the conquering tools of warfare in the 21st century. They have enabled the alliance to grow to 30 full-fledged members, to conclude official partnerships with 20 Partnership for Peace nations, as well as to develop relationships with numerous other nations from disparate corners of the earth, from Australia to Colombia to Pakistan. The great deterrents in today’s conflicts are not so much weapons as they are the financial costs of waging expeditionary wars and the potential damaging of financial systems. In this environment, communities of peace built on a common foundation are capable of outlasting more powerful foes.

NATO is also capable of holding its own during armed conflicts when they arise. (Another discussion could be had about member nations’ willingness to uphold their article 5 commitment of mutual defense, but that is a separate issue.) NATO retains flexibility in the deployment of its rules of engagement, which allow member nations to pursue their individual national interests while retaining a unity of effort. Effective management of NATO forces requires mastery of this concept by commanders across echelons. Once achieved, it leaves the alliance with plenty of capabilities to accomplish the mission.

Irish poet Robert Lynd once said:

“The belief in the possibility of a short, decisive war appears to be one of the most ancient and dangerous of human delusions.”

The short wars envisioned by Lieber require justice to be the prevailing value in the pursuit of national objectives, and that in turn requires the actors pursuing these objectives to act justly.  The limited set of circumstances where this is achievable make his theory complicated enough to make unwise policy.  The abuses of the Code’s ideas that took place in subsequent conflicts, like the one in the Philippines at the turn of the 20th century, make this clear.  As Witt demonstrated in Lincoln’s Code, the principle of military necessity acted as a cloak that attempted to legitimize abhorrent acts.

Whether organizations like NATO go too far in their pursuit of peace, whether they are influenced too much by groups trying to humanize an inherently inhumane act, strike me as unnecessary questions in today’s environment. Competition will indeed manifest itself as “forever wars.” I find this outcome preferable to the alternative of a persistent nuclear threat. 

Final Thoughts

I have found that even dream jobs can begin to show their faults after a few weeks. While NATO certainly suffers from its shortcomings, this job never lost its appeal. In fact, most of what I initially saw as shortcomings eventually appeared to have been deliberate components of NATO’s grand design. The endless hours needed to exhaust every opinion on a topic until consensus is reached certainly can be challenging. The fact that every nation gets a voice at all, however, is truly amazing.

One of my mentors at NATO once told me,

“The beauty of NATO is that it is.”

I hope that despite its challenges in the future, it will always continue to be.

Georgia Law Professor Diane Marie Amann on her article, in International Review of the Red Cross, on ICC OTP Policy on Children, accountability for conflict-related crimes against children

In this post Professor Diane Marie Amann, the Emily & Ernest Woodruff Chair in International Law and Faculty Co-Director of our Dean Rusk International Law Center here at the University of Georgia School of Law, discusses her most recent article related to the effects on children of armed conflict and similar extreme violence.

Very pleased to announce the publication of my new article, “The Policy on Children of the ICC Office of the Prosecutor: Toward greater accountability for crimes against and affecting children.”

As indicated in the just-before-publication version that I’ve posted at SSRN, the International Review of the Red Cross placed this article online last month, on February 21. Currently, that published version is available to Cambridge Core subscribers at a First View page; once it appears in print, in a special issue on “Children and War,” it will be freely accessible at the Review‘s website.

Here’s the abstract:

The Policy on Children published by the International Criminal Court Office of the Prosecutor in 2016 represents a significant step toward accountability for harms to children in armed conflict and similar extreme violence. This article describes the process that led to the Policy and outlines the Policy’s contents. It then surveys relevant ICC practice and related developments, concluding that despite some salutary efforts, much remains to be done to recognize, prevent and punish the spectrum of conflicted-related crimes against or affecting children.

This article represents my latest effort to assist in raising awareness and developing strategies respecting children and conflict (prior posts). It’s an effort in which I’ve been deeply involved since my 2012 appointment as the International Criminal Court Prosecutor’s Special Adviser on Children in and affected by Armed Conflict.

Central to this effort was the multiyear process of researching and drafting, along with an Office of the Prosecutor working group and in consultation with others, of the document published in 5 languages and launched in November 2016 as the Policy on Children. Other aspects have included:

Happy to provide further details. And as always, comments welcome.

(Cross-posted from Diane Marie Amann blog)

Belgium portion of the Global Governance Summer School concludes with an array of international law topics

LEUVEN – Today marks the final day of classroom sessions of the Georgia Law – Leuven Global Governance School, and the final day students will be resident in Leuven. Students took part in three sessions, which focused on business and human rights, international security governance, and concluded with an overview of challenges to international law and global governance.

First, Dr. Axel Marx (left), Deputy Director of the Leuven Centre for Global Governance Studies, presented on business and human rights. After examining several case studies in which corporate activities adversely affected human rights, participants learned how supply chain and corporate governance structures can affect a business’ ability to manage human rights. Dr. Marx introduced key global governance instruments, such as the United Nations Guiding Principles on Business and Human Rights, that can be used to hold states and corporations accountable for human rights violations.

IMG_6489Second, Kathleen Doty (right), Director of the Dean Rusk International Law Center at University of Georgia School of Law, led an interactive session on global security governance. Professor Doty introduced students to global security governance, including international humanitarian law and arms control law. She explained the development of this body of law, focusing on arms control agreements, and introduced several major regimes and their common features. The students then participated in an exercise; faced with a global security crisis, students were tasked with addressing it via treaty negotiation, illustrating the difficulty of international cooperation.

img_6512.jpgThe final session of the day provided an overview of international perspectives on and challenges to global governance, conducted by Professor Dr. Jan Wouters (left), Director of the Leuven Center for Global Governance Studies and the Co-Director of the Global Governance Summer School. Professor Wouters explained the history of globalization and the increase of economic, environmental, and human interdependence. He then explored challenges to the international system, such as anti-globalism, nationalism, and populism.

Student Ayman Tartir receives his diploma from Axel Marx.

Closing out a successful week of studies, students and faculty gathered at the Leuven Institute for Ireland in Europe for a concluding reception. Axel Marx and Kathleen Doty presented participants with attestations of completion.

Tomorrow, students from the University of Georgia School of Law will travel to The Hague, where they will visit international tribunals and organizations.

Georgia Law Professor Amann speaks on accountability at Save the Children-Chatham House London conference

“Justice for Children in Conflict” is the title of a panel on which Professor Diane Marie Amann spoke last week in London, England, as part of a centenary symposium on children and armed conflict cosponsored by Save the Children and the Royal Institute of International Affairs, the latter more commonly known as Chatham House.

Amann (2d from left above) is the Emily & Ernest Woodruff Chair in International Law and Faculty Co-Director of the Dean Rusk International Law Center here at the University of Georgia School of Law. Since 2012, she has served as the Special Adviser to International Criminal Court Prosecutor Fatou Bensouda on Children in & affected by Armed Conflict – service that included assisting in the research and drafting of the ICC Office of the Prosecutor Policy on Children (2016).

Aspects of the Policy were a focus of Amann’s talk in London last Tuesday. Asked by moderator Veronique Aubert, Senior Conflict & Humanitarian Policy & Research Advisor for Save the Children (at left above), to name the root causes of the deficit in accountability for international crimes against and affecting children, Amann cited matters like evidence-gathering and witness protections, but stressed absence of political will to prevent and punish such crimes.

Other speakers included (from center to right) Shaheed Fatima QC, a barrister at Blackstone Chambers, Jessica Gladstone, a partner at Clifford Chance LLP, and Salah Uddin, International Campaign Officer for the British Rohingya Community. The panel was one of several throughout the day’s events, held at Church House, Westminster.

 

“Arms Sales in Conflict: Examining the Impact on Yemen,” session April 4 during ASIL Annual Meeting in D.C.

Arms sales and the conflict in Yemen will be the focus of a panel at the American Society of International Law Annual Meeting in Washington D.C. from 2:30-4:00 p.m. on Wednesday, April 4, 2018.

The panel will examine why some states halt arms sales to countries in conflict, while others do not. Using Saudi Arabia’s support for the Yemeni government as a case study, this session will focus on why the United States has continued (and, in fact, increased) arms sales to Saudi Arabia while some European governments have halted such sales pending further review. The panel will examine the changes to US policy and regulations under the Trump administration, focusing on the use and development of international standards related to arms sales, in particular whether the Arms Trade Treaty has been an effective tool in stopping irresponsible arms sales.

 

 

Panelists will include: Brittany Benowitz, Chief Counsel at the American Bar Association’s Center for Human Rights (left); Dafna H. Rand, former Deputy Assistant Secretary, Department of State Bureau of  Democracy, Human Rights & Labor (center left); and Rachel Stohl, Managing Director of the Stimson Center, and Director of the Conventional Defense Program (center right). Moderating the panel will be our Center’s Director, Kathleen A. Doty (right).

The panel is presented jointly by two ASIL interest groups, the Nonproliferation, Arms Control and Disarmament Interest Group and the Lieber Society on the Law of Armed Conflict. The session is also co-sponsored by the Dean Rusk International Law Center, CIVIC, and the Stimson Center.

ASIL attendees and others in Washington are most welcome to join us and take part in the April 4 conversation, to be held in the Lexington Room of the Hyatt Regency Capitol Hill, 400 New Jersey Avenue, NW. Please join us if you will be in Washington; light refreshments will be served.

 

 

ICC Prosecutor’s Policy on Children, an international criminal justice capstone

Children have become the unwilling emblems of armed conflict and extreme violence.

Searing images have surfaced in news stories, aid workers’ alerts, and rights groups’ dispatches: a 5 year old pulled from Aleppo rubble, orphans at a Goma children’s center, a young Colombian woman struggling to readjust after years as a child soldier, and, face down on a Turkish beach, a drowned 3-year-old refugee. Images of this nature were shown yesterday at the International Criminal Court, during the opening statement in Ongwen, with Prosecutor Fatou Bensouda herself warning “that some of these images are extremely disturbing.”

There is no better time than now to press for strategies both to combat such harms and to bring the persons responsible to justice. Presenting an important step toward those goals is the Policy on Children of the International Criminal Court Office of the Prosecutor.

fatou

Prosecutor Bensouda launched the Policy on Children at an event during last month’s meeting of the ICC Assembly of States Parties. Bensouda quoted from the U.N. expert Graça Machel’s pathbreaking 1996 report on children and armed conflict, then commented:

“[I]t is indeed unconscionable that we so clearly and consistently see children’s rights attacked and that we fail to defend them.
“It is unforgivable that children are assaulted, violated, murdered and yet our conscience is not revolted nor our sense of dignity challenged. This represents a fundamental crisis of our civilisation and a failure of our humanity.
“By adopting the Policy on Children, which we launch today, we at the Office of the Prosecutor seek to ensure that children suffering the gravest injustices are not ignored. That through the vector of the law, we do what we can to protect and advance the rights of children within the framework of the Rome Statute.”

Leading the event was journalist Zeinab Badawi. Among the many others who offered live or video interventions were: Mamadou Ismaël Konaté, Mali’s Minister of Justice and Human Rights of the Republic of Mali; Zeid Ra’ad Al Hussein, U.N. High Commissioner for Human Rights; Leila Zerrougui, Special Representative of the U.N. Secretary-General for Children and Armed Conflict; Angelina Jolie, Special Envoy of the U.N. High Commissioner for Refugees; Nobel Peace Prizewinner Leymah Gbowee; Lieutenant General Roméo-Dallaire, Founder of the Roméo Dallaire Child Soldiers Initiative (see also IntLawGrrls post by Kirsten Stefanik); Marc Dullaert, Founder of KidsRights and the Netherlands’ former Children’s Ombudsman; and Coumba Gawlo, U.N. Development Programme Goodwill Ambassador and National Goodwill Ambassador for the U.N. High Commissioner for Refugees.

screen2I am honored also to have offered brief remarks – and am especially honored to have assisted in the preparation of this Policy in my capacity as the Prosecutor’s Special Adviser on Children in & affected by Armed Conflict, working alongside a dedicated Office of the Prosecutor team led by Shamila Batohi, Gloria Atiba Davies, and Yayoi Yamaguchi. Preparation included experts’ gatherings at the University of Georgia School of Law Dean Rusk International Law Center, at Leiden Law School, and at the ICC itself, as well as consultations around the globe with young persons who had endured armed conflict. (Legal research produced by my students, in seminars on Children & International Law and through the work of the Georgia Law Project on Armed Conflict & Children, also was invaluable.)

The result is a Policy on Children spanning 47 pages, published simultaneously in Arabic, English, French, Spanish, and Swahili. Identifying children as persons under eighteen (paragraph 16), it covers a gamut of issues related to children and the work of the Prosecutor; for example, general policy, regulatory framework, and engagement with children at all stages of the proceedings. Among many other landmarks, the Policy:

► Embraces a child-sensitive approach grounded in the 1989 Convention on the Rights of the Child, a treaty ratified by every U.N. member state save one: the United States, which is also an ICC nonparty state. (My remarks happily noted that my other state of citizenship, the Republic of Ireland, is a state party to both the Child Rights Convention and the ICC’s Rome Statute.) Paragraph 22 of the Policy on Children thus states:

“In light of the foregoing, the Office will adopt a child-sensitive approach in all aspects of its work involving children. This approach appreciates the child as an individual person and recognises that, in a given context, a child may be vulnerable, capable, or both. The child-sensitive approach requires staff to take into account these vulnerabilities and capabilities. This approach is based on respect for children’s rights and is guided by the general principles of the 1989 Convention on the Rights of the Child: non-discrimination; the best interests of the child; the right to life, survival and development; and the right to express one’s views and have them considered.”

► Views children, like all human beings, as multi-faceted individuals and, simultaneously, as members of multi-generational communities. (See, for example, paragraph 100.) Paragraph 25 states:

“Children, by the very fact of their youth, are frequently more vulnerable than other persons; at certain ages and in certain circumstances, they are dependent on others. Notwithstanding any vulnerability and dependence, children possess and are continuously developing their own capacities – capacities to act, to choose and to participate in activities and decisions that affect them. The Office will remain mindful, in all aspects of its work, of the evolving capacities of the child.”

► Acknowledges in paragraph 17 “that most crimes under the Statute affect children in various ways, and that at times they are specifically targeted” – and then pledges that “the Office will, in order to capture the full extent of the harm suffered, seek to highlight the multi-faceted impact on children, at all stages of its work.” The regulatory framework thus enumerates a range of crimes against and affecting children:

  • recruitment and use by armed forces and armed groups of children under fifteen as war crimes (paragraphs 39-43);
  • forcible transfer of children and prevention of birth as acts of genocide (paragraphs 44-46);
  • trafficking of children as a form of enslavement constituting a crime against humanity (paragraphs 47-48);
  • attacks on buildings dedicated to education and health care as war crimes (paragraph 49);
  • torture and related war crimes and crimes against humanity (paragraph 50);
  • persecution as a crime against humanity (paragraph 50); and
  • sexual and gender-based violence as war crimes and crimes against humanity (paragraph 52).

► Details the Office’s plan for applying the child-sensitive approach, with respect both to all stages of proceedings, including preliminary examinations, investigations, and prosecutions, and to cooperation and external relations, institutional development, and implementation.

Even as cases involving crimes against and affecting children, like Ongwen, go forward, the Office is working on implementation of its new Policy on Children. The implementation phase will include developing versions of the Policy accessible to children. I’m looking forward to the opportunity to contribute this phase – and to hearing others’ views on the Policy.

(Cross-posted from Diane Marie Amann)

ICRC survey: persons who have experienced war most value laws regulating armed conflict

logo-1People who’ve actually experienced war place greater value on regulating warfare than those who haven’t.

That appears to be one thought-provoking takeaway from People on War: Perspectives from 16 Countries, a report that the International Committee of the Red Cross released this morning.

More than 17,000 persons – in Afghanistan, China, Colombia, France, Iraq, Israel, Nigeria, Palestine, Russia, South Sudan, Switzerland, Syria (that is, Syrians in Lebanon), Ukraine, the United Kingdom, the United States, and Yemen – were surveyed between June and September countries2016, “through online, face-to-face and computer-assisted telephone interviews.”

Time and again, persons in conflict-ridden countries showed more support for international humanitarian law:

► Of them, 84% agreed that it was wrong, and not “just part of war,” to “attac[k] religious and historical monuments in order to weaken the enemy” – compared with 72% in other states.

► And 73% in conflict states agreed that it was wrong, and not “just part of war,” to injure or kill humanitarian aid workers delivering aid in conflict zones – compared with 59% in other states.

Also notable were the variation in views on torture:

► Fully 100% in Yemen said torture is wrong and not “part of war.” Percentages dropped from there. Fewer than half the persons interviewed in Israel and Palestine said “wrong”; respectively, 44% and 35%.

► As for the United States, 54% called torture “wrong.” But when the question shifted somewhat – to whether “a captured enemy combatant” can “be tortured to obtain important military information” – the percentage of persons in the United States calling that wrong dropped to 30%, the 3d lowest among countries surveyed.

The survey presented the ICRC with an opportunity to reiterate the existence and importance of laws intended to protect civilians, persons no longer engaging in combat, and persons whom conflict has put to flight. These are issues we explored in our September 23 Georgia Law-ICRC event, “Humanity’s Common Heritage: Conference on the 2016 ICRC Commentary on the 1st Geneva Convention” (posts). On the matter of torture, for example, the report states:

“Torture and all other forms of ill-treatment are absolutely prohibited by international treaty and customary law. This applies to every State and to all parties to armed conflicts. There are no exceptions, whatever the circumstances. Whole communities are impacted by the corrosive effects of torture on society, especially when it goes unpunished, generating hatred and triggering a cycle of violence. What’s more, research shows that torture does not work, as the ‘information’ that is obtained is generally not reliable.”

The full report is available here.

(Cross-posted from Diane Marie Amann)