The Emergence of LGBT Rights in International Human Rights Law: A Historical Inquiry

By Carlos Andrés Pagán

Are lesbian, gay, bisexual, and transgender (LGBT) rights “human rights”? If so, how and when did this inclusion take place?

lgbt international human rights lawSome non-governmental organizations (NGOs), such as Amnesty International, argue that LGBT rights are encompassed under human rights law.[1] On the other hand, organizations like the Organisation of Islamic Cooperation claim that LGBT issues “have no legal foundation in any international human rights instrument.”[2] Within the United Nations (U.N.) system, the issue of LGBT rights has been hotly debated.[3] The U.N. foundational documents themselves are broad and therefore susceptible to both interpretations. For example, the U.N. Charter encourages “respect for human rights and for fundamental freedoms for all without distinction.”[4] Similarly, the Universal Declaration of Human Rights (UDHR) states that: “[e]veryone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind.”[5]

On December 15, 2011, the United Nations Office for the High Commissioner for Human Rights (OHCHR) released its first report on the “human rights” of LGBT persons.[6] This report detailed the worldwide manifestations of discrimination based on sexual orientation. The publication of this report followed two historic developments at the U.N. First, in December 2008, sixty-six member nations signed onto a statement calling for the universal decriminalization of homosexuality and “to ensure that human rights violations based on sexual orientation or gender identity” are brought to justice.[7] Then, in June 2011, the first resolution recognizing “human rights violations based on sexual orientation and gender identity” was approved in the Human Rights Council by a vote of 23 in favor, 19 against, and 3 abstentions.[8] Notwithstanding this feat, the voting results reveal that a significant part of the international community disagreed with the resolution’s passing.

In recent years, those who argue in favor of the inclusion of LGBT rights as human rights allude to or make explicit reference to the UDHR[9] and/or prevailing international law.[10] Yet for any advocate wishing to argue that LGBT rights are encapsulated in the UDHR or any other international document, the most salient question is how these rights were conceived when those documents were composed or when they began to be frequently invoked and relied on.

Where did the notion of LGBT rights emerge as human rights? What was the UDHR framers’ position on LGBT rights and what was the broader debate on this issue in the drafting commission? Did the activity of LGBT activists influence the work of the commission? If not, when did LGBT activists begin to prioritize lobbying international organizations? In order to address these questions, a historical enquiry into the origins of international human rights law is necessary.

To my knowledge, there has been no systematic study conducted on the history of LGBT international human rights. I trace back this lacuna to at least three causes. First, the field of LGBT legal scholarship is relatively new, and therefore comparatively small. Second, when scholars have addressed these rights, they have typically examined their development only at the national level.[11] Finally, the “novelty” of these rights has led scholars to focus on recent history.[12] In a nutshell, legal scholars have generally not critically engaged with the full historical background.

Henkin, et al., assert that “the major human rights treaties and most national constitutions were adopted prior to the emergence of LGBT rights consciousness or advocacy movements” and partly due to this “the treaties do not expressly mention homosexuality, sexual orientation, or gender identity and some provisions (such as the right to marry) refer to men and women.”[13] Yet at the same time, these scholars point out that these “treaties include numerous provisions relevant to LGBT individuals, including not only privacy and equality but also the right to life, freedom from arbitrary arrest, the right to health, and freedom of association.” Likewise, they observe that the “treaties also leave undefined concepts such as discrimination on the basis of “sex” and “other status” that may be applicable to sexual orientation and gender identity issues.”[14]

In 1870, German writer Karl Heinrich Ulrichs wrote about uniting “urnings” (homosexuals) to champion their human rights. [15] In 1897, Doctor Magnus Hirschfeld founded the Wissenschaftlich-humanitäres Komitee (Scientific-Humanitarian Committee), which is considered Germany’s – and the world’s – first gay rights organization.[16] The Committee had three goals: to repeal a provision of the German Criminal Code that criminalized homosexual acts, “to enlighten public attitude about homosexuality and homosexuals, and to interest homosexuals in their struggles for their rights.”[17] In 1919, German writer Friedrich Radszuweit took over Vereinigung Freunde und Freundinnen, a Berlin-based homosexual club. In May 1922, he renamed it to Bund für Menschenrecht (Alliance for Human Rights). By 1929 the Alliance would boast 48,000 members.[18] From 1923 to 1933, the organization published a bimonthly periodical called Blätter für Menschenrecht (Bulletin for Human Rights).[19]

In 1912, Jacob Schorer, a Dutch lawyer, founded the Dutch Scientific Humanitarian Committee (NWHK), affiliated with Hirschfeld’s movement. Schorer’s organization interests lay “in the human rights aspect, the ability to be who you are without damaging the self-determination of others.”[20] Likewise, the earliest known U.S. gay movement, the Society for Human Rights, was inspired by the Scientific-Humanitarian Committee and founded in 1924. It is noteworthy that they sought to coin the term Human Rights into its name.[21]

In Switzerland, the Damen-Club Amicitia started publishing a magazine called Freundschafts-Banner (Friendship Banner), whose name was changed in 1937 to Menschenrecht (Human Rights). It repeatedly called “for equal laws and equal application of prevailing laws for heterosexuals and homosexuals, writing in 1947, for example, ‘It is for us only a matter of the same human rights! Not special rights, but the same!”[22]

In 1949, the Shakespeare Club, another Dutch gay organization, originally founded in 1946, changed its name to Cultuur en Ontspanningscentrum and based its policy on the UDHR.[23] Likewise, it has been noted that the Kredsen af 1948, Denmark’s first gay organization, was founded in response to the UDHR.[24] A Swedish branch of Kredsen af 1948 was formed in 1949 and a Norwegian branch in 1950.[25]

In 1951, the first International Congress for Sexual Equality saw fit to send a telegram to the U.N. demanding equal rights for homosexual minorities.[26] Based on “the Principles of the United Nations laid down in the Rights of Man,” the “findings of modern psychological, biological and medical research,” and “mankind’s greater awareness of social injustice”, the Congress members called on the U.N. to “initiate steps towards granting [the] status of human, social and legal equality to homosexual minorities throughout the world.”[27]

Arcadie, the first French homophile organization, founded in 1954, “consistently championed a liberal humanist agenda founded upon a discourse of universal human rights and institutionalized tolerance”.[28] Interestingly, gay rights’ discussions within Amnesty International were taking place as early as 1974[29]— three years before the organization received the Nobel Peace Prize and before the start of the period called the “breakthrough of human rights.”[30]

What are we to make of these early developments? What influence or relation, if any, did these movements and others exert over international human rights law?

Much has been written about LGBT rights. But much remains to be done. A historical examination of the efforts to include LGBT within human rights law is not only a necessary chapter in the story of LGBT rights but also a prerequisite for current debates about the status of these rights in human rights law. The issue of LGBT rights is very much alive today, ranging from decriminalizing LGBT relationships to guaranteeing marriage equality. Worldwide, people are detained and imprisoned solely because of their homosexuality—including those individuals prosecuted for having sex in circumstances that would not be criminal for heterosexuals or for their gender identity.

Assessing the relation of LGBT rights and human rights, both historically and in terms of how these concepts have involved in international law, could be an extremely valuable resource to understand the challenges that LGBT people face today in the international community. Exploring how advocates concerned with LGBT rights have chosen to frame their struggles in human rights terms, and vice versa, is of great normative value.

 

[1]Amnesty International, http://www.amnestyusa.org/our-work/issues/lgbt-rights/about-lgbt-human-rights (last visited March. 5, 2016) (arguing that human rights abuses based on sexual orientation or gender can include, among others, the infliction of torture and cruel, inhuman and degrading treatment; arbitrary detention on grounds of identity or beliefs; the restriction of freedom of association; and the denial of the basic rights of due process).

[2] Zamir Akram, Delegate of Pakistan and Representative behalf of the Organization of the Islamic Conference, Remarks at the March 2012 Meeting of the U.N. Humans Right Council, (March 7, 2012).

[3] Are LGBT rights human rights? Recent developments at the United Nations, Psychol. Int’l, June 2012

[4] U.N. Charter art. 3, ¶ 3.

[5] G.A. Res. 217 (III) A, art. 2, Universal Declaration of Human Rights (Dec. 10, 1948).

[6] Discriminatory laws and practices and acts of violence against individuals based on their sexual orientation, Report of the United Nations Office for the High Commissioner for Human Rights, U.N. Doc. A/HRC/19/41 (2011).

[7] U.N. General Assembly, Statement on Human Rights, Sexual Orientation and Gender Identity (Dec. 18 2008) (available at: http://www.refworld.org/docid/49997ae312.html) (accessed 22 April 2016). The representative of Syria, on behalf of 57 member nations, introduced an alternative statement. The statement, rejected the introduction of the “so-called” notions of sexual orientation and gender identity and expressed that the creation of these new rights seriously undermine “the entire international human rights framework”. As of April 2016, 96 member nations have joined the declaration in favor of LGBT rights while 54 still opposed it.

[8] Human Rights Council Res. 17/19, U.N. Doc. A/HRC/RES/17/19 (June 17, 2011).

[9] In a Human Rights Day address to the United Nations in Geneva, Switzerland on Dec. 6, 2011, then-United States Secretary of State Hillary Clinton stated that one of the remaining human rights challenges before the world today is guaranteeing the equality and dignity of members of the LGBT community. She spoke of this “invisible minority,” whose “human rights are still denied in too many parts of the world,” and called for greater protection of LGBT persons. She asserted that gay rights and human rights are not distinct and referred to the UDHR as a foundational U.N. document guaranteeing LGBT rights as human rights. See Hillary R. Clinton, Secretary, United States Department of State, Remarks in Recognition of International Human Rights Day (Dec. 8, 2011).

[10] Addressing the U.N. Humans Right Council, U.N. Secretary-General Ban-Ki moon stated: “We see a pattern of violence and discrimination directed at people just because they are gay, lesbian, bisexual or transgender. There is widespread bias at jobs, schools and hospitals, and appalling violent attacks, including sexual assault. People have been imprisoned, tortured, even killed. This is a monumental tragedy for those affected — and a stain on our collective conscience. It is also a violation of international law. You, as members of the Human Rights Council, must respond. To those who are lesbian, gay, bisexual or transgender, let me say: You are not alone. Your struggle for an end to violence and discrimination is a shared struggle. Any attack on you is an attack on the universal values the United Nations and I have sworn to defend and uphold. Today, I stand with you, and I call upon all countries and people to stand with you, too.” See Ban-Ki moon, U.N. Secretary-General, Address at the March 2012 Meeting of the Human Rights Council, U.N. Doc. SG/SM/14145-HRC/13, (March 7, 2012).

[11] Julie Mertus, The Rejection of Human Rights Framings: The Case of LGBT Advocacy in the US, 29 Hum. Rts. Q. 1036 (2007).

[12] Julie Mertus, Applying the Gatekeeper Model of Human Rights Activism: The U.S.-Based Movement for LGBT Rights, in The International Struggle for New Human Rights 52 (Clifford Bob ed., 2009).

[13] Louis Henkin et al., Human rights 1208 (2009).

[14] Id.

[15] Jonathan Ned Katz, Gay American History: Lesbians and Gay Men in the U.S.A. 385 (1976). See also Karl Heinrich Ulrichs, Araxes: a Call to Free the Nature of the Urning from Penal Law (Michael Lombardi trans., 1981) (1870) (“The Urning [homosexual], too, is a person. He, too, therefore, has inalienable rights. His sexual orientation is a right established by nature. Legislators have no right to veto nature; no right to persecute nature in the course of its work; no right to torture living creatures who are subject to those drives nature gave them. The Urning is also a citizen. He, too, has civil rights; and according to these rights, the state has certain duties to fulfill as well. The state does not have the right to act on whimsy or for the sheer love of persecution. The state is not authorized, as in the past, to treat Urnings as outside the pale of the law. The prohibition of the expression of the sex drive, i.e., between consenting adults in private, lies outside the legal sphere. All grounds for legal prosecution are lacking in this case. Legislators are hindered from doing this by human rights and the principle of the constitutional state”).

[16] Strongly influenced by Ulrich’s work, the Committee was active until its disbandment by the Nazis in 1933. For nearly 25 years, the Committee published scientific and cultural studies of homosexuality. Hirschfeld also founded the World League for Sexual Reform, which held several congresses on the topic: Berlin (1921), Copenhagen (1928), London (1929), Vienna (1930), and Brno (1932). See Ralf Dose, The World League for Sexual Reform: Some Possible Approaches, 12.1 J. Hist. Sexuality 1 (2003).

[17] Paul Russell, The Gay 100: A Ranking of the Most Influential Gay Men and Lesbians, Past and Present 16 (2002)

[18] Laurence Senelick, The Homosexual Theatre Movement in the Weimar Republic, 49 Theatre Survey 5, 22 (2008).

[19] Florence Tamagne, A History of Homosexuality in Europe, Vol. I & II: Berlin, London, Paris 1919-1939 75 (2007).

[20] Bert Boelaars, Urgency and Strategy: Homosexual Men and Women in the First Half the of the Twentieth Century, in Urgency Required Gay and Lesbian Rights are Human Rights 10 (Ireen Dubel & André Hielkema eds., 2010).

[21] St. Sukie de la Croix, Chicago Whispers: A History of LGBT Chicago before Stonewall 75 (2012).

[22] Hubert Kennedy, The Ideal Gay Man: The Story of Der Kreis 215 (1999).

[23] Who’s Who in Contemporary Gay and Lesbian History Vol.2: From World War II to the Present Day 124 (Robert Aldrich & Garry Wotherspoon eds., 2000).

[24] Jason Pierceson, Sexual Minorities and Politics: An Introduction 157 (2016).

[25] Id.

[26] Leila J. Rupp, Professor, University of California–Santa Barbara, American Historical Association conference: Transnational Homophile Organizing: The International Committee for Sexual Equality (Jan. 2011). See also COC, Report of the First International Congress for Sexual Equality (1951), 2.19.038, box 158.

[27] Id. at 2.  See also Telegramm an die UNO, 7 Der Kreis 1 (1951).

[28] Keith Harvey, Intercultural Movements: American Gay in French Translation 29 (2003).

[29] Sexual Orientation and the AI Mandate, Luxembourg Section, for 1982 ICM, AI Index: 21/01/82 in Stephen Hopgood, Keepers of the Flame: Understanding Amnesty International 116 (2006).

[30] See Samuel Moyn, The Last Utopia: Human Rights in History 4, 222 (2012).

Announcement: FCIL-SIS (Informal) Book Discussion Group at AALL Annual Meeting

By Dan Wade

disarray_0The FCIL-SIS Book Discussion Group will meet at the Annual Meeting on Monday between 12:15 and 2:00p.m. We are gathering at the AALL Annual Meeting Registration Desk at 12:15p.m.

The book under discussion this year is A World in Disarray, by Richard Haass (New York: Penguin, 2017). Haass has been President of the Council of Foreign Relations since 2003. After graduating from Oberlin and receiving his M.Phil and D.Phil from Oxford, Haass worked for the Department of State and the Department of Defense. Between 2001 and 2003 he served the George W. Bush Administration by assuming the dual role of Director of Policy Planning at the State Department, where he became a close adviser to Secretary of State Colin Powell, and United States Special Envoy for Northern Ireland, for which he received the Department of State’s Distinguished Service Award. The book under discussion is Haass’ twelfth book, and it very much follows the line of thinking set out in probably his best known work, The Reluctant Sheriff,  in which he writes, “what will prove crucial is the ability of the United States to persuade others to adopt and abide by its preferences—and the will and ability of the United States to act as sheriff, to mobilize itself and others to insist on them when resistance emerges.” (p.44). In the present book he mellows some and invokes the principle of sovereign obligation, where a state works towards meeting the interests of other states. In the final chapter he addresses the issue of our country in disarray. (No, it is not about Donald Trump’s foreign policy.) Here he calls for more military spending. You can imagine how that analysis sits with this Connecticut Yankee and ordained minister (emeritus) of a historic peace church, e.g., Friends and Mennonites. The book does have value. I thought the discussion of R2P and United States debt were two of the high points.

I believe our group will be smaller this year, and if you are interested in foreign policy, world order, and international relations, please feel free to join us, even if you haven’t read the book. I will reserve a couple of extra places at the lunch table.

Cuban Law and Legal Research: A Snapshot During the Deshielo (Congelado?) – Monday, July 17, 2017, 9:45 a.m., Austin Convention Center, Room 18AB

By Julienne Grant

IMG_9721 (003)“The history of the United States and Cuba encompass[es] revolution and conflict, struggle and sacrifice, retribution and now reconciliation. It is time now for us to leave the past behind. It is time for us to look forward to the future together.”

-President Barack Obama, March 22, 2016, Havana, Cuba

 

“Therefore, effective immediately, I am canceling the last administration’s completely one-sided deal with Cuba.” 

-President Donald J. Trump, June 16, 2017, Miami, Florida

 

“Again, the United States Government resorts to coercive methods of the past, adopting measures to intensify the blockade, in force since February 1962, which not only causes damage and deprivation to the Cuban people and constitutes an undeniable obstacle to the development of our economy, but also affects the sovereignty and interests of other countries, inciting international rejection.” (Julienne E. Grant, translation)

-Declaration of the Revolutionary Government, June 16, 2017, Havana, Cuba

 

When I drafted a proposal last fall for an AALL program on Cuba, I envisioned a continuation of the dramatic deshielo (thaw) of relations between the U.S. and Cuba. Specifically, I assumed there would be a progression of the rapprochement that former President Obama alluded to in his speech in Havana on March 22, 2016.  What I didn’t foresee while crafting the program were the most recent proclamations by President Trump and the Cuban government.  Trump’s June 16th announcement in Miami that backtracks some of the previous administration’s initiatives has halted the thaw a bit. As such, this program is perhaps more appropriately a snapshot during the deshielo congelado (frozen thaw). However U.S.-Cuba relations can now be characterized, though, Cuba is on the cusp of dramatic changes, and it’s a hot topic.

Please join Dr. Marisol Florén-Romero (Florida International University), Teresa Miguel-Stearns (Yale), and me (Loyola University Chicago) as we first explore this enigmatic jurisdiction from a law librarian’s perspective. Our program will include a brief overview of the somewhat unwieldly nomenclature of Cuban law, as well as a short assessment of English-language sources that can provide insight into Cuba’s legal landscape. In addition, Teresa will offer a quick summary of her experience purchasing legal materials in Havana last year.  Accompanying the program is a useful 26-page handout that will be available for download.

Our featured speaker, however, is Professor Jorge R. Piñon, whose talk is titled “Cuba Business Scenarios:  Challenges and Opportunities,” certainly a timely topic in what is an extremely fluid political and economic environment.   Professor Piñon is the Interim Director of The University of Texas at Austin, Center for International Energy & Environmental Policy, and the Director of its Latin America & Caribbean Energy Program.

Professor Piñon is also recognized as an expert on Cuba’s energy sector, as well as on the island’s future economic transitional challenges and opportunities.  He is an advisor and a member of the Cuba Task Force at The Brookings Institution and co-author of “Cuba’s Energy Future: Strategic Approaches to Cooperation,” Brookings Institution Press, 2010.

Hope to see you on Monday for what is sure to be a lively, engaging, and enlightening hour!

 

The Social Responsibilities Special Interest Section Carbon Offset Project: Making a Difference in Global Climate Change

By Erin Gow

As the AALL 2017 conference approaches and you mark your calendars for all the great FCIL related sessions and events taking place in Austin this year, why not take a moment to consider contributing to the Social Responsibilities Special Interest Section Carbon Offset Project? This is a great opportunity to come together with librarians from other sections across AALL to make an international difference.

Climate change is a truly global issue, with international laws and treaties addressing a range of environmental issues that must be tackled beyond the borders of any single nation. This year the SR-SIS is providing an opportunity for everyone to make a difference to the international crisis of climate change by making a donation of just $6 to offset the carbon impact of travelling to the 2017 AALL conference. In addition to making a difference by offsetting carbon emissions, this year’s project also has a direct impact on the lives of people in Uganda, by providing cook stoves that are safer and cleaner than the toxic fires many families currently have to rely on to cook their meals. Visit www.aallnet.org/sections/sr/projects/Travel-Offset-Project.html to find out more about the project and to make a donation.

SR-SIS

ASIL 2017 Recap: Claims against the United Nations: From Within and Without

By: Loren Turner

At 9:00 a.m. Friday, April 14, 2017, during ASIL’s annual meeting, a panel of international law experts assembled to address the accountability of the United Nations in its peacekeeping operations (or, in practical terms, lack therof).  The topic is getting increasing attention in light of recent evidence that U.N. peacekeepers caused the cholera outbreak in Haiti and sexually-abused children and women during peacekeeping operations in Central Africa.

The panelists were: Simon Chesterman, Professor of Law at the National University of Singapore; Andreas Vaagt, with the United Nations Secretariat, and Patricia Galvao Teles, with the International Law Commission.  Alejandro Sousa, senior legal adviser to the U.N. General Assembly, moderated the discussion.

Professor Chesterfield unpacked the concept of accountability into two inquiries: (1) to whom is the United Nations accountable and (2) for what?  In short, the answers are: (1) unfortunately, no one – yet; and (2) violations of humanitarian law.

In 1952, when there were 60 countries that comprised the United Nations, a committee of the American Society of International Law (referenced here) questioned whether the U.N. was subject to the laws of war.  After all, the U.N. was not, itself, a party to the Geneva Conventions or any other treaties.  It was not until the Kosovo intervention in 1999 that it was decided yes, humanitarian law applies to U.N. peacekeeping operations because: (1) the U.N. is an independent actor – separate from member States – when it exercises peacekeeping functions under the U.N. Charter (2) customary law supports humanitarian intervention in certain situations and the laws of war thus apply to the actors performing the humanitarian intervention and (3) the U.N. increasingly exercises state-type activities, such as in Kosovo when it set up panels to prosecute criminals and freeze assets.

Yet, despite theoretical application of laws of war to U.N. peacekeeping operations, the practical reality is that the U.N., as an international organization, has absolute immunity.  Additionally, individual U.N. officials have immunity as well.  When the U.N. admitted its role in Haiti’s cholera epidemic, victims brought suit in U.S. federal court.  The Second Circuit dismissed the case for lack of subject matter jurisdiction, finding the U.N. was indeed immune under Section 2 of the Convention of the Privileges and Immunities of the United Nations, which states “The United Nations, its property and assets wherever located and by whomsoever held, shall enjoy immunity from every form of legal process except insofar as in any particular case it has expressly waived its immunity…” So, victims in places where the U.N. operates, such as in Haiti, have no avenue to contest activities or hold the U.N. accountable.  The organization that is supposed to enforce the rule of law around the world is not itself accountable.

Mr. Vaagt spoke on behalf of the United Nations. He said enforceability of the rule of law related to personnel actions depends on member states. Once article V or VI of the U.N. Charter is invoked, the status of forces agreement (SOFA) between the U.N. and the host country applies.  Under the SOFA, the state(s) providing humanitarian personnel maintain exclusive jurisdiction of those individuals.  The concept of exclusive jurisdiction also applies to NATO forces going into NATO countries.  Once the U.N. refers a case to a state, it is up to the state to investigate and prosecute the offender.  General Assembly resolution 62/63 urged states to exercise that jurisdiction.  Yet, to date, despite approximately 100 case referrals, not a single state has pursued charges.  

As to the immunity of U.N. staff, only official high level U.N. officials have diplomatic immunity.  But, there are other U.N. employees who have functional immunity, which can be waived by the U.N. Secretary General.  Officially, the U.N. has a zero tolerance policy and Secretary-General Guterres recently released a strategy to end impunity for sexual exploitation and abuse system-wide.  It is too early to comment on the effect of that strategy. Regardless, unless waived by the Secretary-General, immunity stands.

Ms. Galvao Teles said that the issue of U.N. accountability is not a new one.  There are three strategies that have been raised to attempt a balance between immunity and impunity: (1) revise the 1946 Convention on the Privileges and Immunities of the United Nations; (2) envision a convention on the jurisdictional immunities of international organizations; or (3) tackle the immunity question within the context of “settlement of international disputes” to which international organizations are parties.  In Ms. Galvao Teles’s opinion, none of these strategies is appropriate.  It is risky to revise agreements that already contain good law.  Given the current international political climate, the Secretary-General says he is happy to have what we have rather than risk getting less.  Maybe it is not the rules that need to change, but the implementation.  We could clarify when a waiver of immunity would be appropriate.  We could define better the phrase “private claim.” We could explore a sanctions-type system to handle claims rather than relying on judicial resolution.  All of these are better options than revising an established treaty.  As to the second idea of envisioning something new?  Not going to happen.  What would it add?  Again, it is probably an issue about new strategies of implementation rather than the creation of new rules.  The last idea, the topic of tackling the immunity question within the context of settlement of international disputes, was added at the sixty-eight session of the International Law Commission.  Ms. Galvao Teles thinks it is more likely that the International Law Commission would provide draft clauses to address the issue of immunity – not an entire convention.

[For more information about this program, read the official recap on ASIL Cables].

ASIL 2017 Recap: Debate: Bombing Terrorist Revenue: Legitimate Military Strategy or War Crime?

Bombing Terrorist Revenue

By: Amy Flick

One of the Friday sessions at ASIL’s 2017 annual meeting was staged in the form of a debate on the question of whether the practice of targeting revenue sources of ISIL (like oil trucks and infrastructure and cash storage sites) violates international humanitarian law. The moderator, Christie Edwards of the American Red Cross International Humanitarian Law Division, began the program by explaining the debate format, with the speakers taking assigned positions which might, or might not, reflect their own views.

The affirmative side, supporting targeting of revenue sources as legitimate military objects, led off with Professor Ryan Goodman of New York University School of Law. He argued that it is lawful to target objects under current law, even if the law should be changed, and that under debating rules, the proof is on the negative team.  Article 52(2) of the Additional Protocol I of the Geneva Conventions, on general protection of civilian objects, limits attacks strictly to military objectives, with a definition of targetable objects as those making an effective contribution to military action. He cited Burrus Carnahan’s writings on Additional Protocol I, which include examples of economic targeting such as the destruction of raw cotton during the U.S. Civil War, and the more recent example of Afghanistan, where all 28 members of NATO have authorized targeting drug labs. Professor Goodman acknowledged that the prevailing academic opinion is that economic targets are not legitimate targets, but he called most of the analysis of the question in the academic literature superficial. He also referred to ICRC Commentaries requiring military control over an object as a limit. Since ISIL controls the oil fields and funds its operations and purchases weapons through the sale of oil, those qualify as legitimate targets. Where states have drawn the line is targeting people, even if they are working in revenue-generating operations, if they are not directly involved in hostilities.

Professor Laurie Blank, Director of the International Humanitarian Law Clinic at Emory University School of Law, argued for the negative side, and disagreed on the debate’s burden of proof, saying that the party describing a target as outside IHL protections has the burden of proof here. Because the object and purpose of the law of armed conflict is to minimize civilian suffering, the law of armed conflict limits targeting to military objectives and combatants. The first step in the process is to determine if the target is a military objective. Article 52(2)’s definition of targets is combatants and equipment. Donating money to a terrorist group does not make one a target, even if the money might be used for objects that might be used in conflict. Just because something is done frequently, or feels good, an argument for “morally legitimate” does not make economic targeting legal in the law of armed conflict. She argued that the risk of turning money into a military objective by nature is that the slippery slope leads to targeting agriculture, banks, and the environment.

Maj. Gen. Charles Dunlap, Professor and Executive Director of the Center on Law, Ethics and National Security at Duke Law School, returned to the affirmative side of the argument. Professor Dunlap disagreed with the slippery slope argument and said that the point of the debate is the narrow question of whether the target has a direct connection with objects on the battlefield. ISIL fighters regard monetary payments as income for jihad. Two-thirds of ISIL’s budget goes to paying fighters and buying equipment. He cited an article from The Atlantic from March 6, 2017 (which itself cites a February 2017 report from The International Centre for the Study of Radicalisation and Political Violence) that found that, when the oil fields were bombed, ISIL cut fighter pay by 50%, and many left the battlefield. An attack that removes fighters from the battlefield without civilian casualties serves the idea of international humanitarian law. U.S. forces even dropped leaflets to notify drivers before oilfields were bombed. Professor Dunlap stressed that these tactics are only used when it is shown that eliminating these economic targets will affect the battlefield. The alternative is for military operations on the ground to have to root fighters out from urban areas house by house.

The final speaker of the debate was Professor Jens David Ohlin of Cornell Law School, arguing for the negative side. He started with a declaration that “slippery slope is an understatement.” Article 52(2)’s not having used the word “direct” does not mean that it allows revenue-producing site bombings. There must be a causal nexus to the military outcome, and it must be relatively certain that destruction of the target confers a military advantage. Bombing to demoralize the civilian population is not enough of a military nexus; bombing coal and steel plants is. Three steps are needed with economic targets to show a military purpose: a revenue-generating product is produced; the product is sold; and the revenue is used to buy weapons. This is not enough to establish a causal connection a stay within the requirement of conferring a definite military advantage.

On rebuttal, Professor Goodman reiterated that current law allows the slippery slope, even if the law should be changed. The travaux for Protocol I dropped “direct objects” and allowed indirect objects. Just as steel is turned into tanks, money creates fighters, and could even be traded directly for arms, eliminating one of the three steps. Rule 8 practice includes oil storage sites as military targets, as well as dual purpose structures like bridges; it does not allow bombing agriculture, with a disproportionate effect on civilians, or the World Trade Center, as an example of a structure too indeterminate to military objectives.

Professor Blank stated that she found assurances that there are limits and that states will be careful as insufficient. Making law for “bad terrorists” is not why a practice is allowed, because it becomes justifiable for other groups.

Professor Dunlap’s response was that the law requires care to be taken. Military forces must collect a lot of data or they cannot target, and IHL does not matter to groups who do not follow the law. The current situation in Syria and Iraq has seen a collapse of reciprocity. If we can eliminate fighters and weapons without civilian casualties, and there are no good other options, we should do it.

Professor’s Ohlin’s final response was that the affirmative side has argued that international law permits anything that is not prohibited, but IHL requires a presumption of civilian character, with proof that a target is a legitimate military target. The parties agree that analysis requires a definite military advantage; the disagreement is over what is definite.  He contended that the affirmative side distinguished unfairly between small and large powers based on how much of the economy must be crippled by the destruction of a target to diminish the combatant’s military capacity. Professor Blank agreed that the rules must be the same for state and non-state actors; targeting rules cannot be different based on whether the parties are good or bad.

[To watch the video of this program and others from ASIL’s 2017 annual meeting, visit ASIL’s YouTube channel.  For another recap of this program, visit ASIL Cables].

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. For another recap of this program, visit ASIL Cables].