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Commentary on the 2014 Grotius Lecture

Published online by Cambridge University Press:  20 January 2017

Diane Marie Amann*
Affiliation:
University of Georgia School of Law, Office of the Prosecutor, International Criminal Court

Abstract

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Type
Sixteenth Annual Grotius Lecture
Copyright
Copyright © American Society of International Law 2015

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References

1 Grotius, Hugo, The Law of War and Peace 734 (Kelsey, Francis W. trans. 1925)Google Scholar (originally published 1625).

2 See Gander, Kashmira, UN to Stop Updating Death Toll in Syria Conflict, Independent (London), Jan. 7, 2014 Google Scholar (reporting that the UN refugee agency, which had announced 100,000 deaths in July 2013, had decided to stop stating death tolls because of the lack of reliable data). A Britain-based activist group estimated the death toll to be atleast 150,000 as of spring 2014. Death Toll in Syria’s Civil War Above 150,000: Monitor, Reuters, Apr. 1, 2014.

3 See UN Children’s Fund, Under Siege: The Devastating Impact on Children of Three Years of Conflict in Syria 18 (Mar. 10, 2014) (stating the overall number of refugees as of spring 2014, and specifying that of these 1.2 million were children). More than 10,000 of the persons killed were children. Id. See also Euro-Mediterranean Human Rights Network, Violence Against Women, Bleeding Woundinthe Syrian Conflict (Nov. 2013) (detailing, in report prepared by consortium of eighty human rights organizations, harms including sexual violence, killings and executions, arbitrary detention, torture, and abductions).

4 See Coomaraswamy, Radhika, Women and Children: The Cutting Edge of International Law, in ASIL Proc. 43, 48, 60, 64–65 (2014)Google Scholar.

5 See id. at 56.

6 See id. at 57.

7 See Bunreacht na hÉireann (Constitution of Ireland) (1937); Tushnet, Mark, Constitution-Making: An Introduction, 91 Tex. L. Rev. 1983, 2004 (2013)Google Scholar (explaining how “authors of India’s 1947 Constitution adopted a formulation used in Ireland’s Constitution to give constitutional status to social and economic rights”). Ireland is in the process of considering amendments to its Constitution in order “to ensure that it is fully equipped for the 21st Century.” Tom Arnold, Message from the Chairman, Convention on the Constitution, https://www.constitution.ie/ (last visited Apr. 13, 2014).

8 See Chu, Henry, Meeting as Equals: Ireland’s President Gets a Ceremonial Welcome—Unimaginable a Generation Ago—at Windsor Castle, L.A. Times, Apr. 8, 2014, at 3.Google Scholar

9 For a brief account of the United States’ “becoming a colonial power,” see O’Connell, Mary Ellen, Arbitration and Avoidance of War: The Nineteenth-Century American Vision, in The Sword and the Scales: The United States and International Courts and Tribunals 30, 38 (Romano, Cesare P.R. ed., 2009).CrossRefGoogle Scholar It is scarcely unheard of for a postcolonial state to engage in colonialist ventures, such as the expulsion of indigenous persons from lands subsequently occupied by supporters of the state. See, e.g., Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General Pursuant to Security Council Resolution 1564 of 18 September 2004, UN Doc. S/2005/60, para. 219, at 60 (2005) (stating that the Janjaweed militia aided the Sudanese government’s attacks in Darfur because of “the promise of owning land, which also explained the massive forced displacement of the civilian population”).

10 Cf. Amann, Diane Marie, Unipolar Disorder: A European Perspective on U.S. Security Strategy, 27 Hastings J. Int’l & Comp. L. 447, 447–54 (2004)Google Scholar (comparing U.S. views on foreign policy and global scrutiny to those in Europe); Amann, Diane Marie, Dialogue entre chercheurs de différentes traditions juridiques. Une perspective américaine, in Variations Autour d’un Droit Commun 363, 368–70 (Delmas-Marty, Mireille, Muir-Watt, Horatia & Fabri, Hélène Ruiz eds., 2002)Google Scholar [hereinafter Amann, Dialogue] (exploring American exceptionalism).

11 Herszenhorn, David M. & Roth, Andrew, In East Ukraine, Protesters Seek Russian Troops, N.Y. Times, Apr. 8, 2014, at A1 Google Scholar (reporting on unrest in Kharkiv and other Ukrainian cities a month after Russia declared its annexation of another portion of Ukraine, Crimea).

12 See James Brown Scott, Introduction, in Grotius, supra note 1, at xiv (describing contributions both of Grotius and of three Spaniards, Balthasar de Ayala, Francisco Suárez, and Francisco de Vitoria).

13 See id.

14 See Grotius, supra note 1, at 663–89 (discussing prize law in book III, chapter VI, entitled “On the right of acquiring things taken in war”). See also Joshua Barkan, Corporate Sovereignty 89–90 (2013) (linking colonialism and Grotius’s writings on prize law, undertaken in his role as advocate for the Dutch East India Company); Scott, supra note 12, at xiv–xxx (discussing evolution of Grotius’s writings on prize law).

15 Grotius, supra note 1, at 690.

16 See id. at 696 (writing that the law of nations allowed slavery, yet adding that “[t]he law under consideration does not now exist among Christians”). Although Grotius may not have used the precise words “better nations,” variations on that term occur throughout his work. E.g., id. at 657 (stating with reference to a rule he supported that “[t]he latter view is the law not of all nations, but of the better ones”).

17 See UN Charter art. 2(1) (“The Organization is based on the principle of the sovereign equality of all its Members.”); see also United Nations, Growth in United Nations membership, 1945–present, http://www.un.org/en/members/growth.shtml (last visited Apr. 24, 2014) (setting forth timeline showing expansion of United Nations from organization with 51 charter members in 1945, to 193 members in 2014).

18 Coomaraswamy, supra note 4, at 55.

19 Spivak, Gayatri Chakravorty, Can the Subaltern Speak?, in Marxism and the Interpretation of Culture 271 (Nelson, Carey & Grossman, Lawrence eds., 1988)CrossRefGoogle Scholar; see Coomaraswamy, supra note 4, at 56 n.60, 57, 63 (discussing this milestone article).

20 Addis, Adeno, Individualism, Communitarianism, and the Rights of Ethnic Minorities, 67 Notre Dame L. Rev. 615, 650 (1992)Google Scholar; see Amann, Dialogue, supra note 10, at 364 (expressing support for Professor Addis’s concept, which he also called “critical pluralism”).

21 See Coomaraswamy, supra note 4, at 45-47, 53 (discussing Convention on the Rights of the Child arts. 9(2), 23(1), 31, Nov. 20, 1989, 1577 U.N.T.S. 3, and Convention on the Elimination of All Forms of Discrimination Against Women art. 5, Dec. 18, 1979, 1249 U.N.T.S. 13. As of spring 2014, the treaties had 194 and 188 parties, respectively, although the United States belonged to neither. See UN Treaty Collection, Convention on the Rights of the Child; UN Treaty Collection, Convention on the Elimination of All Forms of Discrimination Against Women.

22 See Mireille Delmas-Marty, Global Law: A Triple Challenge vii (Naomi Norberg trans. 2003) (contending that “if we want to avoid hegemonic globalization, we must learn to pair the economic and human rights to invent a truly pluralist common law”); Amann, Dialogue, supra note 10, at 364 n.2 (citing additional Delmas-Marty writings on pluralism). See also Otto, Dianne, Power and Danger: Feminist Engagement with International Law Through the UN Security Council, Austl. Feminist L.J. 97, 106 (2010)CrossRefGoogle Scholar (criticizing Security Council resolution for “the absence of any reference to addressing the structural causes of women’s inequality, like women’s economic marginalisation, which must be addressed before the rhetoric of participation has any hope of translating into practice”).

23 In a similar vein is this quote from the lecture above: “To win back the Global South, we must also begin to focus on issues that are most relevant to them—the economic and social rights of women.” Coomaraswamy, supra note 4, at 62. Cf. Diane Marie Amann, International Law and the Future of Peace, in 107 ASIL Proc. 111, 113 (2013) (discussing concept of “positive peace”’ (quoting Martin Luther King, Jr., Letter from the Birmingham Jail 15–16 (Harper San Francisco 1994) (originally published 1963)).

24 Grotius, supra note 1, at 648.

25 Id. at 734 (stating, in subhead for book III, chapter IX: “Children should always be spared; women, unless they have been guilty of an extremely serious offence; and old men” (italics omitted; punctuation as in original)).

26 Id. at 735 (quoting Lucan).

27 Id. at 656 (adding, in the same sentence, that other writings maintained “that it is not permissible”).

28 Id. at 657.

29 Id.

30 See Mark Drumbl, Reimagining Child Soldiers in International Law and Policy 100 (2012) (impugning “the metaphor of the child soldiers as faultless passive victim”), discussed in Amann, Diane Marie, Book Review, 107 AJIL 724 (2013)Google Scholar; Ní Aoláin, Fionnuala, Situating Women in Counterterrorism Discourses: Undulating Masculinities and Luminal Femininities, 93 B.U. L. Rev. 1085, 1086 (2013)Google Scholar (criticizing references to women, in policy discussions, “as the wives, daughters, sisters, and mothers of terrorist actors, or as the archetypal victims of senseless terrorist acts whose effects on the most vulnerable (women themselves) underscores the unacceptability of terrorist targeting”); Otto, supra note 22, at 103 (analyzing extent to which Council’s Women, Peace and Security agenda moves beyond viewing “women as a ‘vulnerable group’ or as the ‘victims’ of armed conflict”).

31 See Coomaraswamy, supra note 4, at 44 (“While there are similarities between women and children when it comes to matters of protection during war, there are major differences in the quality and nature of their agency and right to participation.”).

32 Thomas Buergenthal, A Lucky Child: A Memoir of Surviving Auschwitz As a Young Boy 208 (2009).

33 See Int’l Ct. Justice, Judge Thomas Buergenthal, http://www.icj-cij.org/court/?p1=1&p2=2&p3=1&judge=11 (last visited Apr. 13, 2014).

34 See Scott, supra note 12, at xvii.

35 Id. at xxiv. Scott did not identify the “noble woman” by name, and did not mention at all the role of her maid, described below.

36 See Pfeifer, Dirk, Loyalty, Bravery and Female Cleverness: Grotius’s Maidservant and Remonstrant Identity, 29 De Zeventiende Eeuw (2013)Google Scholar (recounting the story with emphasis on the role of the maid, Elselina van Houweningen), available at https://www.de-zeventiende-eeuw.nl/index.php/dze/article/view/9402/9842.

37 See Scott, supra note 12, at xxiv–xxvi. To avoid raising suspicion, Maria remained under house arrest in Loevestein Castle until Dutch authorities permitted hertojoin Grotius in France. See Hugo Grotius, Slot Loevestein, http://www.slotloevestein.nl/documents/museum/geschiedenis/hugo-de-groot.xml?lang=en (last visited Apr. 25, 2014); Pfeifer, supra note 36.

38 See, e.g., Vasconcellos, Colleen A., Ferdinand and Isabella (Spain), in 1 Colonialism: An International, Social, Cultural, and Political Encyclopedia 207 (Page, Melvin Eugene & Sonnenburg, Penny M. eds., 2003)Google Scholar [hereinafter Colonialism].

39 On the actions of the British queen, see, e.g., Margaret Sankey, Elizabeth I, in Colonialism, supra note 38, at 187; Catherine E. Manathunga, Ireland, in Colonialism, supra note 38, at 280–81. On the Grotian tenet, see Grotius, supra note 1, at 603; Hugo Grotius, The Free Sea (Richard Hakluyt trans. 2004) (originally published, with the title Mare Liberum, in 1609).

40 Grotius, supra note 1, at 735.

41 See Coomaraswamy, supra note 4, at 48-54.

42 See Jean-Marc de la Sablière, Security Council Engagement on the Protection of Children in Armed Conflict: Progress Achieved and the Way Forward, at 29 (June 15, 2012) (urging, in report by a former Permanent Representative of France to the United Nations, that “[t]he threat of sanctions, consistently reiterated by the Council, should be put into practice more often so that it is not ultimately perceived as an empty threat”); David S. Koller & Miriam Eckenfels-Garcia, Using Targeted Sanctions to End Violations Against Children in Armed Conflict, at 1–4 (Apr. 25, 2014) (unpublished manuscript) (on file with author) (dating to 2004 contemplation of these enforcement tools to 2004, yet finding only “limited” use of targeted measures since then); Security Council Report, Cross-Cutting Report: Children and Armed Conflict, at 2–3 (Feb. 21, 2014) (stating, in periodic report by nongovernmental watchdog organization, that although Council debates in 2012 and 2013 had “focused on accountability and persistent perpetrators,” they did not give rise to significant “movement in this direction,” and attributing this to “general reluctance by some members of the Working Group to impose targeted sanctions”)).

43 See Prosecutor v. Lubanga, Case No. ICC-01/04-01/06, Judgment Pursuant to Article 74 of the Statute (Int’l Crim. Ct. Trial Chamber I, Mar. 14, 2012) [hereinafter Lubanga Judgment], discussed in Amann, Diane Marie, International Decisions: Prosecutor v. Lubanga, 106 AJIL 809 (2012)Google Scholar.

44 See Procureur c. Katanga, No. ICC-01/04-02/12, Jugement rendu en application de l’article 74 du Statut (ICC Trial Ch. II, Mar. 7, 2014), paras. 1024–88 [hereinafter Katanga Judgment]; Procureur c. Ngudjolo, No. ICC-01/04-02/12, Jugement rendu en application de l’article 74 du Statut (ICC Trial Ch. II, Dec. 18, 2012), paras. 397, 504–16 [hereinafter Ngudjolo Judgment].

45 See Katanga Judgment, supra note 44, paras. 958–1023; Ngudjolo Judgment, supra note 44, § XI, at 215. See also Diane Amann, Marie, Children and the First Verdict of the International Criminal Court, 12 Wash. U. Global Stud. L. Rev. 411, 422, 424–28 (2013)Google Scholar (discussing treatment in Lubanga Judgment, supra note 43, of sexual violence evidence as “irrelevant”); Women’s Initiatives for Gender Justice, Partial Conviction of Katanga by ICC Acquittals for Sexual Violence and Use of Child Soldiers: The Prosecutor vs. Germain Katanga (Mar. 7, 2014) (indicating in press release that in Katanga, judges wrongly applied “a higher standard of evidence” to charges of sexual violence).

46 Concern about this particular defect in the international accountability framework extends even to the issue of child soldiers. See Wilson, Richard J., Omar Khadr: Domestic and International Litigation Strategies for a Child in Armed Conflict Held at Guantanamo, 11 Santa Clara J. Int’l L. 29, 79 (2012)Google Scholar (concluding, in article on a person detained from age fifteen onwards, that “the tribunals that could have held the United States to account for its non-compliance with international law utterly failed to do so”).

47 See generally, e.g., Mouthaan, Solange, Sexual Violence Against Men and International Law—Criminalising the Unmentionable, 13 Int’l Crim. L. Rev. 665 (2013)CrossRefGoogle Scholar; Otto, supra note 22, at 108–09 (discussing Sivakumaran, Sandesh, Lost in Translation: UN Responses to Sexual Violence Against Men and Boys in Situations of Armed Conflict, 92 Int’l Rev. Red Cross 259 (2010))CrossRefGoogle Scholar; Promoting Accountability for Conflict-Related Sexual Violence Against Men: A Comparative Legal Analysis of International and Domestic Laws Relating to IDP and Refugee Men in Uganda (Refugee Law Project Working Paper No. 24, July 2013), http://www.refugeelawproject.org/files/working_papers/RLP.WP24.pdf; UN High Comm’r for Refugees, Working with Men and Boy Survivors of Sexual and Gender-Based Violence in Forced Displacement (July 2012), available at http://www.refworld.org/cgi-bin/texis/vtx/rwmain?docid=5006aa262.

48 See generally Fineman, Martha Albertson, The Vulnerable Subject and the Responsive State, 60 Emory L.J. 251 (20102011)Google Scholar; Fineman, Martha Albertson, The Vulnerable Subject: Anchoring Equality in the Human Condition, 20 Yale J.L. & Feminism 1 (20082009)Google Scholar. See also Ní Aoláin, Fionnuala, Women, Vulnerability, and Humanitarian Emergencies, 18 Mich. J. Gender & L. 1, 4–5 (2011)Google Scholar (discussing Fineman’s work).

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