ASIL 2017 Recap: International Law and the Trump Administration: National and International Security

By: Loren Turner

During these first 100 days of a Donald Trump presidency, the American Society of International Law (ASIL) has led efforts to bring together experts from both sides of the political spectrum to talk about international law under the Trump administration. ASIL has produced a series of freely-available webinars that analyze the Trump administration and (1) the future of international agreements; (2) U.S. engagement with the United Nations; (3) U.S. participation in global trade agreements; and (4) the future of environmental agreements.

On Thursday, April 13, 2017, during ASIL’s annual meeting, experts assembled once again to discuss international law under the Trump administration, but this time through the lens of national and international security.  The program was certainly timely, as it occurred the same day we learned the United States had dropped the “Mother of All Bombs” on Afghanistan and accidentally bombed allies in Syria.

Benjamin Wittes of the Brookings Institution served as moderator to a panel of three experts on international law and politics: Shireen Hunter of Georgetown University’s School of Foreign Service; John Bellinger, legal adviser for the U.S. Department of State and the National Security Council during the George W. Bush administration; and Elisa Massimino, the President and Chief Executive Officer of Human Rights First.

In her opening remarks, Shireen Hunter identified herself as the voice of “political realism.”  She said laws are the outcomes of social and political processes.  Law is important but it is politics that change things and the laws change when society and politics change.  International law succeeds when there are common interests.  For example, even during conflict, the mail still gets delivered.  Maritime trade continues because those common interests remain.  But international relations and the rule of law are based on power.  Those nations with power, use that power to get what they want and there is no enforcement mechanism that stops them.  Saddam Hussein bombed Saudi Arabia with impunity.  Russia annexed Crimea and the international community did nothing to stop it.  No one abides U.N. Security Council resolutions, which are supposed to be binding.  The ideal is to implement the rule of law but the reality is that international relations is based on power and is skewed. We need a balance of power before international law is respected. We need creative ways of encouraging international cooperation and hence strengthening international law.

On the topic of human rights and Syria, Ms. Hunter said that she witnessed the abuse of human rights rhetoric when she served on the United Nations Human Rights Committee.  The United States would claim to honor human rights, but then sell bombs to nations that routinely violate human rights.  We had waterboarding under the Bush administration.  Trump doesn’t really care about the Syrian people.  Syria is a test case of which nation is going to be the next hegemon in that part of the world. Humanitarian intervention is a new phenomenon and it causes a lot of deaths.  Look at Libya, at Iraq.  Bombing Syria for humanitarian reasons is a smokescreen.  If the Trump administration wanted to follow international law, it would conduct an investigation to make sure Assad really did employ those chemical weapons.

John Bellinger first identified Trump as a danger to national security in a blog post he wrote for Lawfare in 2015.  In August 2016, he joined a group of 50 other former G.O.P. national security advisers to publicly state that “Trump lacks the character, values, and experience to be President.”  Mr. Bellinger said there is significant cause for alarm, but there may also be rays of hope.  According to Mr. Bellinger, there are some serious lawyers that could be joining the Trump administration and, if they do so, the administration may begin to settle down.  Mr. Bellinger noted, however, that Trump is dividing the country and that it is extremely destabilizing when Trump says he doesn’t support the international obligations of the United States.

As to the topic of Syria, Mr. Bellinger said that Trump might have recklessly gotten to the right place.  We all know the Syria strike is not legal under international law.  Is it justified though? One of the most troubling images associated with the Syria strike is the photo of Trump getting briefed about the strikeThere were no lawyers in the room.  Did international law inform the decision at all?  Mr. Bellinger would not have wanted to wait for the results of a full investigation to confirm Assad released the chemical weapons, but international lawyers need to be consulted before a reaction like this.

Elisa Massimino began her remarks with the question: we haven’t reached 100 days yet, right?  Feels like 100 years.  According to Ms. Massimino, the Trump administration’s budget proposal for the United Nations speaks volumes as to what the administration thinks of human rights and norms. The administration’s focus is on hard security.  Yet, the foundation of human rights is the best way to achieve peace and security in the world.

Ms. Massimino argued that the refugee policy is a huge threat to the national security of the United States and also our allies in Europe.  Additionally, the administration’s rhetoric on refugees, torture, and increased prosecutions for illegal entry, all pose real concerns to those who want adherence to international law and national security.  Trump’s tweets are a big deal and “we are really concerned.”  It is not a coincidence that Assad attacked civilians with chemical weapons right after the administration said that removing Assad was no longer a priority.

According to Ms. Massimino, the Trump administration’s slogan of “America First” is code for isolationism.  The America First campaign might mean America, alone.  Launching missiles is not a strategy.  When the United States withdraws, others scramble to fill the void, and these others (Russia, China, etc.) are putting forth alternative views of how the world should work and these views are not based on rules and norms that promote international law and human rights.

So, what can we do, as international law practitioners and academics?   Both Mr. Bellinger and Ms. Massimino urged audience members to get out and educate the American public – at local, regional, and national levels.  Explain the value of international law, especially how it helps people in their daily lives (airline travel, receiving mail, buying goods at reasonable prices, etc.).  According to Ms. Massimino, “this is our moment as international lawyers and it is up to us whether we can rise to the occasion.”

[Visit ASIL’s YouTube channel to access the full video of this program and others from ASIL’s 2017 annual meeting].

ASIL 2017 Recap: Grotius Lecture: Civil War Time: From Grotius to the Global War on Terror

By: Amy Flick

The American Society of International Law (ASIL) kicked off its 111th annual meeting in Washington, D.C. on April 12, 2017 with its 19th annual Grotius Lecture. The 2017 Grotius Lecturer was David Armitage, Lloyd C. Blankfein Professor of History at Harvard University, and Distinguished Discussant Mary L. Dudziak, Asa Griggs Chandler Professor of Law at Emory University School of Law.

The program was introduced by Camille Nelson, Dean of American University Washington College of Law. She remarked that Professor Armitage and Professor Dudziak have each published on the subject of civil wars. Since modern conflicts do not fit into a classical international law model of conflicts between states, a discussion between historians on whether international law applies to civil wars is an appropriate topic for annual meeting.

Professor Armitage’s book is Civil Wars: A History in Ideas, which Professor Armitage acknowledged was inspired by Professor Dudziak’s book War Time: An Idea, Its History, Its Consequences. Professor Armitage observed that civil war is a recent field of study. History has traditionally been separated into war and peace times, with war considered temporary, but with modern conflicts, it is difficult to determine when wars begin or end. Civil wars are not declared, they resonate even after a conflict ends, and they are prone to recur. Post World War II has been an age of civil wars, with 20 on average at any one time, and consequences arising from internal wars becoming international through intervention and outside combatants.

Professor Armitage explored the history of the study of civil war, beginning with the Romans, who likened them to natural phenomena like volcanoes. Grotius distinguished between public and private wars, classifying civil war as a public war against the same state, and finding any peace preferable to civil war, with civil wars never categorized as just wars. By contrast, Vattel disagreed with Grotius on the existence of private war, and positing that a civil war could be a just war if evils within a state are intolerable. His book The Law of Nations influenced 18th and 19th century United States thought and was cited in the Prize Cases, 67 U.S. 635 (1862). “When the regular course of justice is interrupted by revolt, rebellion, or insurrection, so that the Courts of Justice cannot be kept open, civil war exists, and hostilities may be prosecuted on the same footing as if those opposing the Government were foreign enemies invading the land.” The Lieber Code, though, did not distinguish between insurrection and civil war, and defined the 1860s U.S. conflict as a rebellion, not a civil war, allowing the suspension of habeas corpus.

Professor Armitage brought the lecture to the current era with the extension of the Geneva and Hague Convention protections to internal conflicts with Article 3 of the Geneva Conventions and the 1977 Protocol II. In discussing the current Syrian conflict, he addressed the problem of language. Assad has called the conflict of 2011-2012 an insurrection, not a civil war. The ICRC confirmed it as an “armed conflict not of an international character,” covered by international humanitarian law. Professor Armitage pointed out the political reluctance to call a conflict a civil war, with definite declarations and peace treaties, even though since World War II there have been more peace treaties for civil wars than for inter-state conflicts. He concluded by calling this an urgent moment in history to define what is a civil war and what we value, as more political disputes are being described as “civil wars.”

Professor Dudziak found the categorization of war in categories of civil war and its opposite inter-state war as useful, but remarked on another category of war, with examples from 1864 of the United States Civil War and the U.S. Indian Wars. The U.S. Civil War was considered a “real war” in legal history and treated as fitting in the Lieber Code definition of civil war as an appropriate example of the use of war powers. The carnage of the civil war created widespread suffering which the public had to respond to by creating a “community of suffering” and humanizing the other side. By contrast, the Indian Wars of the 19th century have not been considered civil wars. Native Americans were considered barbarians, outside the borders of civilization and outside non-combatant immunity. The Lieber Code limits did not apply to “savages.” The exception of uncivilized people from protection culminated in the Sand Creek massacre of the Cheyenne.

Professor Dudziak concluded by declaring that in the late 20th and early 21st centuries, peace is not a time, it is an identity for people isolated from the battlefield. The absence of shared suffering has created an American apathy about war. Ending on a more hopeful note, she asked “Wouldn’t it be great if people could be brought together in peace instead of suffering?”

[Check out ASIL’s YouTube channel for the full video of the 2017 Grotius Lecture].

 

Seeking Bloggers for ASIL’s Annual Meeting!

Are you attending ASIL’s Annual Meeting next week?  DipLawMatic Dialogues is seeking volunteers to blog from and about the meeting.  If you are interested, please contact Loren Turner at lturner@umn.edu.  Thank you for considering and see you soon!

Introducing…Gabriela Femenia as the April 2017 FCIL Librarian of the Month

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1. Where did you grow up?

A lot of places, but mostly Silicon Valley. My high school was down the road from Apple, so I still kind of think of it as a local business.

2. Why did you select law librarianship as a career?

After leaving practice, I moved into academic administration while looking for a way to combine my law background with my interest in teaching and research. I knew I didn’t have the narrow focus to be an academic, and I also wanted a better work-life balance. After being introduced to some law librarians, it was obvious that’s what I’d been looking for all along.

3. When did you develop an interest in foreign, comparative, and international law?

I was fortunate that one of the law librarians I met before library school was an FCIL librarian, Maria Smolka-Day. She convinced me that it would be a great fit for me, assuming there was a job open when I graduated, which she cautioned might not be the case. Ironically enough, it was her job that was open, as she retired that year.

4. Who is your current employer? How long have you worked there?

The University of Pennsylvania Law School, which I’ve worked for since getting my MLIS in 2009.

5. Do you speak any foreign languages?

I speak Spanish, since I was born in Argentina and grew up bilingual. I can read French, German, and Latin, although I’m badly out of practice speaking the first two, and I never really spoke Latin apart from reciting Winnie Ille Pu in class.

6. What is your most significant professional achievement?

Becoming a reasonably experienced legal research instructor or achieving OCLC immortality as editor of a chapter in Sources of State Practice, although winning the impressively pointy Spirit of the FCIL-SIS award is a close second.

7. What is your biggest food weakness?

I’m with Wallace on this one: Cheese! I have tried going vegan at a couple of points, and it is always cheese that is my downfall. Don’t even try to convince me that nutritional yeast is an acceptable substitute.

8. What song makes you want to get up and sing/dance?

Peter Gabriel’s Solsbury Hill. It’s what I crank at every moment of victory in my life.

9. What ability or skill do you most wish you had (that you don’t have already)?

Like all FCIL librarians, I would like to be able to download every language directly into my brain on demand, Matrix-style. Stopping and starting time would also be nice.

More realistically, I would like to have more artistic ability and a steadier piping hand so I could decorate cakes better (see below).

10. Aside from the basic necessities, what is one thing you not go a day without?

The obvious answer is probably sarcasm, but I’ll go with fountain pens. I’ve been obsessed with them since buying my first one on a whim in college, so having to use a ballpoint makes me seriously cranky. I have way too many of them, including some treasured ones inherited from relatives, and I buy a new one every few months, especially whenever I’m in Washington DC and can get to Fahrney’s. One of the best birthday presents I’ve ever received is a custom fountain pen holder in the shape of a Ferris wheel, which my husband designed and 3-D printed for me.

11. Anything else you would like to share with us?

I bake for fun pretty much every Sunday, and since I don’t want an entire batch of whatever it is in my house all week, it goes into the office on Monday for my coworkers. If it hadn’t been for Kitchen Confidential coming out just as I graduated and having restaurant owners as my first clients, I might have toyed with a career change to pastry chef instead of librarianship. Yes, I am addicted to Great British Bake Off, although I’m going to have to defect to whatever new show the BBC creates for Mary, Sue and Mel, because Paul Hollywood on his own is not going to do it for me.