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International Law and the Fututre of Peace

Published online by Cambridge University Press:  20 January 2017

Diane Marie Amann
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Women in International Law Interest Group Luncheon
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Proceedings of the ASIL Annual Meeting , Volume 107 , 2013 , pp. 111 - 118
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Copyright © American Society of International Law 2014

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References

* This essay is part of a larger project on the value of peace; that project has been aided by research assistance from Kaitlin M. Ball and Anders S. Nelson, by library assistance from T.J. Striepe, and by comments made during my presentations at the International Criminal Court and the International Criminal Tribunal for the former Yugoslavia, as well as the law schools at Arizona State University and the University of Georgia.

1 See The American Society of International Law Women in International Law Interest Group Prominent Woman in International Law Award, https://file.smartbins.net/download/2afe25c4357c5eea4eeb62fe8f8edd12 (last visited Mar. 31, 2013).

2 For the roster of persons who contributed during the 2007–2012 edition of this blog, see Contributors, IntLawGrrls, http://www.intlawgrrls.com/p/contributors.html (last visited Mar. 31, 2013). Contributors to the current edition are listed as “Voices” in the righthand column at IntLawGrrls, http://ilg2.org/.

3 Many articles point to a “feminist project” in law generally, and international law specifically—so much so that at a previous ASIL Annual Meeting, one panelist spoke of “the perennial question of ‘What is the feminist project in law?’” O’Rourke, Catherine, Remarks, in Feminism v. Feminism: What Is a Feminist Approach to Transnational Criminal Law?, 102 ASIL Proc. 269, 274–75 (2008)Google Scholar. The first journal reference to the term found in Westlaw is MacKinnon, Catharine A., Toward Feminist Jurisprudence, 34 Stan. L. Rev. 703, 710 (1982)CrossRefGoogle Scholar (reviewing Ann Jones, Women Who Kill (1980)).

4 For the complete list of women honored, see Foremothers, IntLawGrrls, http://www.intlawgrrls.com/p/foremothers.html (last visited Mar. 31, 2013).

5 This assumption is, of course, contestable. See Charlesworth, Hilary, Are Women Peaceful? Reflections on the Role of Women in Peace-Building, 16 Fem. Leg. Stud. 347, 357 (2008)CrossRefGoogle Scholar (challenging “[t]he idea that women are somehow predisposed to be peaceful and naturally gifted as peace-builders”).

6 See Norma Smith, Jeannette Rankin 16, 26, 105, 111–14, 156, 183, 236 (2002).

7 All autobiographical details are drawn from Peace 1931: Jane Addams, Nicholas Murray Butler, in 2 Nobel Lectures Including Presentation Speeches and Laureates’ Biographies: Peace 1926–1950, at 123, 132–35 (Haberman, Frederick W. ed., 1972)Google Scholar.

8 Evans, Alona E. & Plumb, Carol Per Lee, Women and the American Society of International Law, 68 AJIL 290, 291 (1974)CrossRefGoogle Scholar (quoting letter from James Brown Scott, then ASIL’s Recording Secretary and later its President, to “Miss Jane Adams,” April 17, 1915); see Frederic L. Kirgis, The American Society of International Law’s First Century 1906–2006, at 12 (2006) (recounting this history).

9 See Evans & Plumb, supra note 8, at 291; see also Kirgis, supra note 8, at 12.

10 See Pacifism, in The American Heritage Dictionary of the English Language 941 (William Morris ed., 1973) (listing, as the second meaning of the term, “[opposition to war or violence as a means of resolving disputes,” and, as the first meaning, “belief that disputes between nations should and can be settled peacefully”).

11 Martin Luther King, Jr., Letter from the Birmingham Jail 15–16 (Harper San Francisco 1994) (1963).

12 Galtung, Johan, Nonterritorial Actors and the Problem of Peace, in On the Creation of a Just World Order 151, 151 (Mendlovitz, Saul H. ed., 1975)Google Scholar.

13 Id. at 154 (emphasis in original omitted).

14 Using the term “associative policies” to refer to interstate efforts at cooperation, Galtung wrote:

Clearly the problem is to bring parties together to prevent direct violence without at the same time creating structural violence. This is the general problem of peace politics in our time: how to practice associative policies as a bulwark against direct violence without at the same time getting into the pitfalls of structural violence.

Id.

15 UN Charter art. 2(3), (4).

16 Id. art. 51.

17 See generally Telford Taylor, The Anatomy of the Nuremberg Trials (1992); Yuma Totani, The Tokyo War Crimes Trial (2008). Cf. James F. Willis, Prologue to Nuremberg 80, 174–75 (1982) (stating that U.S. prosecutors at Nuremberg argued that aggression “had become a customary, uncodified war crime by virtue of a progressive chain of events,” dating to the post-World War I era and including “the adoption of the Kellogg-Briand treaty outlawing war”).

18 See Black, Ian, Iran and Iraq Remember War that Cost More than a Million Lives, Guardian (London), Sept. 23, 2010 Google Scholar, http://www.guardian.co.uk/world/2010/sep/23/iran-iraq-war-anniversary; Peter James Spielmann, Review of Congo War Halves Death Toll, Ap DataStream, Jan. 20, 2010, available in Westlaw, 1/20/10 AP DataStream 19:07:01 (reporting on studies that lowered original casualty estimate of 5.4 million to half that number, still well over 2 million persons).

19 See UN Charter art. 24(1) (“In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf.”).

20 See, e.g., The National Security Strategy of the United States of America (Sept. 2002), available at http://georgewbush-whitehouse.archives.gov/nsc/nss/2002/, discussed generally in Amann, Diane Marie, Unipolar Disorder: A European Perspective on U.S. Security Strategy, 27 Hastings Int’l & Comp. L. Rev. 447 (2004)Google Scholar.

21 UN Charter art. 2(3).

22 See generally Eichensehr, Kristen E., Note, Defending Nationals Abroad: Assessing the Lawfulness of Forcible Hostage Rescues, 48 Va. J. Int’l L. 451 (2008)Google Scholar.

23 See generally Mohamed, Saira, Restructuring the Debate on Unauthorized Humanitarian Intervention, 88 N.C. L. Rev. 1275 (2010)Google Scholar. Cf.Amann, Diane Marie, The Course of True Human Rights Progress Never Did Run Smooth, 21 Harv. Hum. Rts. J. 171, 173–74 & n.11 (2008)Google Scholar [hereinafter Amann, Course] (writing of some commentators’ uneasiness respecting humanitarian intervention).

24 See, e.g., Creegan, Erin, A Permanent Hybrid Court for Terrorism, 26 Am. U. Int’l L. Rev. 237, 254–55 (2011)Google Scholar; Van Schaack, Beth, “The Grass that Gets Trampled When Elephants Fight”: Will the Codification of the Crime of Aggression Protect Women?, 15 UCLA J. Int’l L. & Foreign Aff. 327, 334 (2010)Google Scholar. But see Barriga, Stefan & Grover, Leena, A Historic Breakthrough on the Crime of Aggression, 105 Am. J. Int’l L. 517, 522 n.14 (2011)CrossRefGoogle Scholar (“A genuine humanitarian intervention without Security Council authorization would, by its gravity and character, not fulfill the criterion of a manifest Charter violation since its legality under general international law is at least debatable.”) (citing Kreß, Claus, Time for Decision: Some Thoughts on the Immediate Future of the Crime of Aggression: A Reply to Andreas Paulus, 20 Eur. J. Int’l L. 1129 (2010))CrossRefGoogle Scholar.

25 Van Schaack, supra note 24, at 334.

26 See Diane Marie Amann, Kampala as Cause to Celebrate, IntLawGrrls, Sept. 10, 2010, http://www.intlawgrrls.com/2010/09/kampala-as-cause-to-celebrate.html (quoting lecture in which Professor William A. Schabas accepted that at times force may be necessary, but added that he would not “exaggerate the importance of that, because war brings atrocities, inevitably”).

27 At the time of the first Gulf War, one commentator called “disturbing” the fact that, in contrast with environmental damage, the issue of civilian casualties had “attracted almost no scholarly analysis.” Gardam, Judith Gail, The Law of Armed Conflict: A Gendered Regime?, in Reconceiving Reality: Women and International Law 171, 172 (Dallmeyer, Dorinda G. ed., 1993)Google Scholar. Notwithstanding observation of “the salience of civilians in modern conflicts,” Roberts, Adam, The Civilian in Modern War, 12 Y.B. Int’l Humanitarian L. 13, 16 (2009)CrossRefGoogle Scholar, quantification of the losses suffered by civilians remains less accurate than the quantification of military casualties. See Amann, Diane Marie, …and counting…, IntLawGrrls, Feb. 24, 2007 Google Scholar, http://www.intlawgrrls.com/2007/02/and-counting.html (noting variations in casualty counts in Iraq, and quoting an Associated Press report of a comment by a Duke University political scientist, that “[p]eople in democracies generally don’t shy away from inflicting civilian casualties”).

28 See John O. Brennan, The Ethics and Efficacy of the President’s Counterterrorism Strategy (Apr. 30, 2012), http://www.cfr.org/counterterrorism/brennans-speech-counterterrorism-april-2012/p28100 (stating in speech that “[a]s a matter of international law, the United States is in an armed conflict with al-Qa’ida, the Taliban, and associated forces, in response to the 9/11 attacks, and we may also use force consistent with our inherent right of national self-defense,” and furthermore that “[t]here is nothing in international law that bans the use of remotely piloted aircraft for this purpose or that prohibits us from using lethal force against our enemies outside of an active battlefield, at least when the country involved consents or is unable or unwilling to take action against the threat”); Harold Hongju Koh, The Obama Administration and International Law (Mar. 25, 2010), http://www.state.gOv/s/l/releases/remarks/139119.htm (asserting, in an ASIL Annual Meeting speech, that “a state that is engaged in an armed conflict or in legitimate self-defense is not required to provide targets with legal process before the state may use lethal force”); U.S. Dep’t of Justice, Attorney General Eric Holder Speaks at Northwestern University School of Law (Mar. 5, 2012), http://www.justice.gov/iso/opa/ag/speeches/2012/ag-speech-1203051.html (contending that “the fact that we are not in a conventional war” changes neither the domestic authority “to protect the nation from any imminent threat of violent attack” nor the international law that “recognizes the inherent right of national self-defense”).

29 See, e.g., Mitchell, Sara McLaughlin & Diehl, Paul F., Caution in What You Wish For: The Consequences of a Right to Democracy, 48 Stan. J. Int’l L. 289, 295 (2012)Google Scholar; Szewczyk, Bart M.J., Variable Multipolarity and U.N. Security Council Reform, 53 Harv. Int’l L.J. 449, 478, 492–93 (2012)Google Scholar; Brooks, Rosa, The Problem with the Drone War that No One’s Talking About, Dallas Morning News, Feb. 22, 2013 Google Scholar, http://www.dallasnews.com/opinion/sunday-commentary/20130222-rosa-brooks-the-problem-with-the-drone-war-that-no-ones-talking-about.ece. For a more comprehensive account of the doctrine, see O’Brien, Patricia, The United Nations & the Responsibility to Protect, IntLawGrrls, Apr. 5, 2012 Google Scholar, http://www.intlawgrrls.com/2012/04/united-nations-responsibility-to.html (reprinting UN Legal Counsel’s remarks at ASIL’s 2010 Annual Meeting).

30 See Iraq Body Count, http://www.iraqbodycount.org/ (last visited Mar. 31, 2013) (stating that there had been between 111,840 and 122,320 “civilian deaths from violence” since the Iraq invasion); Iraq Casualty Count, http://icasualties.org/ (last visited Mar. 31, 2013) (tabulating 4,804 deaths of coalition service members between 2003 and 2012); Londoño, Ernesto, Iraq, Afghan Wars Will Cost to $4 Trillion to $6 Trillion, Harvard Study Says, Wash. Post, Mar. 28, 2013 Google Scholar, 2013 WLNR 7696661; Studies Examine Effects of Iraq War on US and UK, Deutsche-Welle, Mar. 15, 2013, http://www.dw.de/studies-examine-effects-of-iraq-war-on-us-and-uk/a-16676385 (citing nearly 200,000 deaths and costs of more than $2 trillion); UN High Comm’r for Refugees, 2013 UNHCR Country Operations Profile—Iraq, http://www.unhcr.org/pages/49e486426.html (last visited Mar. 31, 2013) (citing, in table, more than 1.4 million Iraqi refugees and another 1.3 million internally displaced Iraqis).

31 Addams, Jane, What War Is Destroying, in 4 Jane Addams’S Writings on Peace 61, 61 (Fischer, Marilyn & Whipps, Judy D. eds., 2003)Google Scholar [hereinafter Writings on Peace] (reprinting essay originally published at volume 77 of The Advocate of Peace, Mar. 1915, at 64–65).

32 See id. at 61–62. I draw the term “collective fear” from Addams’s references to “a trial conception” of “patriotism” as a call to “march and fight” in order to “save their homes from destruction.” Id. at 61. It was, she wrote, “an irrational appeal which ought to have left the world long since.” Id.

33 See Cooper, Helene & Myers, Steven Lee, Shift by Clinton Helped Persuade President to Take a Harder Line, N.Y. Times, Mar. 19, 2011 Google Scholar, at Al (discussing how desire to prevent a repeat of the 1994 Rwanda genocide motivated U.S. officials to push for military intervention in Libya).

34 See Statement by the High Commissioner for Human Rights to the Security Council, on 12 February 2013 during the Council’s thematic debate on the Protection of Civilians, http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=12990&LangID=E (last visited Mar. 31, 2013); Abdulrahim, Raja, Syrian Civil War Enters Third Year, L.A. Times, Mar. 15, 2013 Google Scholar, http://www.latimes.com/news/world/worldnow/la-fg-wn-syria-war-assad-third-year-20130315,0,1650959.story.

35 See Charap, Samuel, Why Russia Won’t Help on Syria, N.Y. Times, Jan. 2, 2013 Google Scholar, 2013 WLNR 76564 (“Moscow does not believe the U.N. Security Council should be in the business of endorsing the removal of a sitting government.”); Corboy, Denis, Courtney, William & Yalowitz, Kenneth, Dealing with Two Russias, N.Y. Times, Jan. 25, 2013 Google Scholar, 2013 WLNR 1940921 (writing that “stubborn support for the Assad regime in Syria has tarnished the prestige of Russia”). Russia’s support is essential because, as a permanent member of the Security Council, it may veto any Council action with which it disagrees. See UN Charter arts. 23(1), 27(3).

36 See S.C. Res. 1970, UN Doc. S/RES/1970 (Feb. 26, 2011).

37 See Chivers, C.J., Looted Libyan Arms in Mali May Have Shifted Conflict’s Path, N.Y. Times, Feb. 8, 2013 Google Scholar, at A4. Libya itself reportedly has remained unstable. See Erlanger, Steven, Two Years After Revolt, Libya Faces a Host of Problems, N.Y. Times, Feb. 13, 2013, at A7 Google Scholar.

38 I choose to write of human “security” rather than “rights” for the reason that rights too often are realized only after they are violated, and even then only by the few victims who possess resources to seek redress. I have written elsewhere:

[W]hereas ‘human rights’ activists often look to judges for vindication, in the form of post hoc compensation for individual deprivations of rights, ‘human security’ is not so limited. Security may be secured without resort to the courts—indeed, I would argue that it is best secured when it is embedded in the structure of the system, so that insecurity never occurs. In this sense the actors most responsible for human security are the legislators who establish the protective/preventive structure and the executive officers who implement that structure. Judges are not the first guarantors of human security; they are, rather, the very last resort. In a system that fully guaranteed human security, the judiciary would have no role at all to play.

Diane Marie Amann, Climate Change and Human Security, at 3 (English-language version, available at https://www.dropbox.com/s/rycj0o0e5da6iee/climate_eng_2008.pdf, of Amann, Diane Marie, Le changement climatique et la sécurité humaine, in Regards Croisés Sur L’internationalisation du Droit: France-États-Unis 239, 242–43 (Delmas-Marty, Mireille & Breyer, Stephen eds., 2009)Google Scholar). See also Amann, Course, supra note 23, at 176–79 (exploring the concept of human security within the framework of U.S. understandings of the role of the state vis-à-vis individual persons).

39 Jane Addams, Patriotism and Pacifists in War Time, in Writings on Peace, supra note 31, at 153, 159–160 (reprinting presentation made at May 15, 1917, meeting of the City Club of Chicago).

40 Id.

41 See Evans & Plumb, supra note 8, at 290–91; see also Kirgis, supra note 8, at 12.

42 See Rodham, Hillary D., “There Is Only the Fight …” An Analysis of the Alinsky Model, at i (1969) (unpublished B.A. thesis, Wellesley University)Google Scholar (on file with the Wellesley University Library) (expressing “special appreciation” to “Miss Alona E. Evans for her thoughtful questioning and careful editing that clarified fuzzy thinking and tortured prose”).

43 See Kirgis, supra note 8, at 391–92.

44 See id. at 392 n.66.