“However, as the pictures from Abu Ghrahib prison in Iraq, stories from GITMO, and stories and photos
from Afghanistan demonstrate
the [United States]
has countenanced every conceivable method of torture from waterboarding to
chaining prisoners for 24 hours without any break or relief. Furthermore, under the current interpretation
of torture 14th century racks may be employed as can burning with
boiling oil; this despite the McCain anti-torture amendment.” Mary-Ellen
O’Connell, Affirming the Ban on Harsh Interrogation, 66 Ohio St. L. J. (2005)
Semper Fidelis: Keep Our Honor Clean
Presenting our
Draft American Society of International Law Resolution
By Benjamin G. Davis
Associate Professor of Law
University of Toledo
College of Law
ASIL member since 2005
Table of Contents
Executive Summary
1.
Please approve
our draft ASIL resolution Pgs.
3-28
a.
Draft ASIL
Resolution Pgs.
3-4
b.
Co-signators Pgs.
4-28
2.
Because America
is this -
Semper
Fidelis:Keep Our Honor Clean Pg.
29
3.
And not this –
One Abu Ghraib photo Pg.
30
Presentation
I. Our History Pg.
31
II. Our task today Pg.
33
III. A New Paradigm: Back to
the Source – Grotius et al Pg.
34
IV. What is to be done? Pg.
36
V. How we drafted our
Resolution Pg.
37
VI. The co-signators Pg.
38
VII. Our draft Pg.
39
VIII. Why do this now? Pg.
42
IX. What should the ASIL do? Pg.
42
X. Conclusion Pg.
46
Annex I – Letter of January
30, 2006 to President James
Carter and Executive Director
Charlotte Ku Pg.
48
Annex II – My personal
journey (Benjamin G. Davis) Pg.
55
Annex III – A message from a
non-member supporter Pg. 61
Executive Summary
Please approve our draft ASIL resolution
a. Draft ASIL Resolution
American Society of
International Law Resolution (Final Draft of January 27, 2006)
The American Society of
International Law, at its centennial annual meeting in Washington, D.C.
on March 29, 2006, Resolves:
1)
Each state has a
right of self-defense within the United Nations Charter and other international
law.
2)
The laws of war
and occupation (“the laws of armed conflict”) apply to the United States of America.
3)
In particular,
the four Geneva Conventions (Convention (I) for the Amelioration of the Condition of the Wounded and
Sick in Armed Forces in the Field. Geneva,
12 August 1949; Convention (II) for the Amelioration of the Condition of
Wounded, Sick and Shipwrecked Members of Armed Forces at Sea. Geneva, 12 August 1949; Convention (III)
relative to the Treatment of Prisoners of War. Geneva, 12 August 1949; and Convention (IV)
relative to the Protection of Civilian Persons in Time of War. Geneva,
12 August 1949) apply to the United
States of America in its armed conflict(s).
4)
Torture, cruel, inhuman or degrading
treatment, or secret incommunicado detention of any person in the custody
or control of the United States of America and/or other States, are
fundamentally repugnant to international law, and violate
international law in general and, in particular, international human rights and
humanitarian law.
5)
All branches of the United States Federal
Government and non-governmental actors are required to adhere to the standards
enumerated in international law that forbid secret incommunicado
detention or torture and cruel, inhuman, or degrading treatment of people
without exception. In this regard, the United
States of America should conform to its U.S. constitutional jurisprudence as well as
jurisprudence of prior tribunals such as the International Military Tribunal
for the Far East and military tribunals at Nuremberg.
6)
The international law of command responsibility
applies to the United States
of America.
7)
The United
States of America should assure command
responsibility for its high level civilian authority and military general
officers for any violations of international law.
8)
Security and liberty should be maintained and
enhanced in a manner that is completely consistent with the international law
obligations of the United
States of America.
SIGNED
b. Co-signators
ASIL MEMBER LIST
(organizations for identification
purposes only)
Carl Q. Christol
Distinguished Professor Emeritus,
University of Southern California
Current ASIL Member: Yes
ASIL Member Since:
for over 56 years
Burns
H. Weston
Bessie
Dutton Murray Distinguished Professor of Law, Emeritus
Senior
Scholar, UI Center for Human Rights (UICHR), and
Vermont Law School
Visiting Distinguished Professor of International Law and Policy
College of Law
The
University of Iowa
Iowa City, Iowa
ASIL
Member: Yes
ASIL
member since: 1959
Daniel
G. Partan
R.
Gordon Butler Scholar in International Law
Professor
of Law
Boston University
School of Law
Boston, Massachusetts
ASIL
Member: Yes
ASIL
Member since: Most likely 1960
Professor M. Cherif Bassiouni
Distinguished Research
Professor of Law
President, International Human
Rights Law
Institute DePaul
University College
of Law Honorary President, International Association of Penal Law
Chicago, Illinois
ASIL Member: Yes
ASIL member since: 1962
Anthony D’Amato
Leighton Professor of Law
Northwestern University
Evanston, Illinois
Current ASIL Member: Yes and Patron of the Society
ASIL Member Since:
for 40 years
James
A. Nafziger
Thomas
B. Stoel Professor of Law and
Director
of International Programs
Willamette University College
of Law
Salem, Oregon
ASIL
Member:Yes
ASIL
member since: 1967
Gunther
Handl
Eberhard
Deutsch Professor of Public International Law
Tulane Law
School
New Orleans, Louisiana
ASIL
Member: Yes
ASIL
member since: 1969
Peter W. Schroth
Current ASIL Member: Yes
ASIL Member Since:
Since 1969
Mark
Weston Janis
William
F. Starr Professor of Law
University
of Connecticut School of Law
Hartford, Connecticut
ASIL
Member: Yes
ASIL
member since: first joined as an undergraduate, I think, about 1969
Jordan Paust
Mike and Theresa
Baker College
Professor of Law
University of Houston
Law Center
Houston, Texas
Current ASIL Member: Yes
ASIL Member Since:
Believe since 1970
Henry
J. Richardson III
Professor
of Law
Temple University
Law School
Philadelphia, Pennsylvania
ASIL
Member: Yes
ASIL
member since: 1970
Dr. Johannes Van Aggelen
Geneva, Switzerland
Current ASIL Member: Yes
ASIL Member Since:
Since 1972 with a break from 1976-1980
Roger
S. Clark
Board
of Governors Professor
Rutgers School
of Law – Camden
Camden, New
Jersey
ASIL
Member: Yes
ASIL
member since: 1973
Christina
Cerna
Adjunct
Professor of International Human Rights Law
Georgetown University Law
School
Washington, D.C.
ASIL
member: Yes
ASIL
member since: 1974
David
Weissbrodt
Regents
Professor & Fredrickson & Byron Professor of Law
University of Minnesota
Minneapolis, Minnesota
ASIL
member: Yes
ASIL
member since: 1975
Jon
M. Van Dyke
William S. Richardson
School of Law
University of Hawaii at Manoa
Honolulu, Hawaii
ASIL
member: Yes
ASIL
member since: for more than 30 years
Armand de Mestral
Professor of Law
McGill University
Montreal, Quebec, Canada
Current ASIL Member: Yes
ASIL Member Since:
Since 1976 (perhaps earlier)
Fernando
R. Teson
Tobias
Simon Eminent Scholar and Professor of Law
Florida State
University
College of Law
Tallahassee, Florida
ASIL
Member: Yes
ASIL
member since: for almost 30 years, at least since 1977
Valerie
C. Epps
Professor of Law and Director of the International Law Concentration
Suffolk University Law School
Boston, Massachusetts
Visiting
Professor
Fudan University
Shanghai, China
ASIL
Member: Yes have been for decades
ASIL
member since: Joined in the seventies
Harold
Hongju Koh
Dean
and Gerard C. and Bernice Latrobe Smith Professor of International Law
Yale Law
School
New Haven, Connecticut
ASIL
Member: Yes
ASIL
member since: 1980 I believe
David
D. Caron
C.
William Maxeiner Distinguished Professor of International Law
University of California
at Berkeley
Berkeley, California
ASIL
Member: Yes
ASIL
member since: 1980
Charles
D. Siegal
Munger,
Tolles & Olson, LLP
Los Angeles, California
ASIL
Member: Yes
ASIL
member since: 1980
Ralph
G. Steinhardt
Arthur
Selwyn Miller Research Professor of Law
Director
of the Oxford Program
in International Human Rights Law
The
George Washington Law
School
Washington, D.C.
ASIL
member: Yes former member of Executive Council
ASIL
member since: early 80’s
Leo Lovelace
Adjunct Professor of Social Science and History
Chapman University College and Chapman University
Lecturing Professor
Department of Political Science
University of California at Riverside
Riverside, California
Current ASIL Member: Yes
ASIL Member Since:
Since 1981
Christopher
L. Blakesley
The
Cobeaga Tomlinson Professor of Law
William S. Boyd School of Law
University of Nevada
Las Vegas
Las Vegas, Nevada
ASIL
Member: Yes
ASIL
member since: I believe some 25 years,
plus
Scott
Horton
Patterson,
Belknap Webb & Tyler LLP
New York, New
York
Chair,
Committee on International Law
Association
of the Bar of the City of New York
ASIL
member: Yes
ASIL
member since: 1982
Professor
Adrien Katherine Wing
Bessie
Dutton Murray Professor of Law
University
of Iowa College of Law
Iowa City, Iowa
ASIL
Member: Yes
ASIL
member since: 1982
Dorinda G. Dallmeyer
University of Georgia
Director, Environmental Ethics
Certificate Program Founders Memorial House
University of Georgia
Athens, Georgia
ASIL
Member: Yes
ASIL member since: 1984
Sherri Burr
Dickason Professor of Law
University of New Mexico School
of Law
Albuquerque, New Mexico
ASIL
Member: Yes
ASIL member since: 1985
Mary Ellen O’Connell
Robert and Marion Short Professor of Law
Notre Dame
Law School
Notre Dame, Indiana
Current ASIL member: Yes
ASIL member since: 1986
Professor
Linda A. Malone
Marshall-Wythe
Foundation Professor of Law
Director,
Human Rights and National Security Law Program
William
and Mary Law School
Williamsburg, Virginia
ASIL
Member: Yes
ASIL
member since: believe 20 years
James
C. Hathaway
James
E. and Sarah A. Degan Professor of Law
Director,
Program in Refugee and Asylum Law
The
University of Michigan
Law School
ASIL
Member: Yes, Life Member
ASIL
member since: approximately 20 years
Sean
D. Murphy
Professor
of Law
George Washington
University Law
School
Washington, D.C.
ASIL
member: Yes
ASIL
member since: 1987
Michael
C. Davis
J.
Landis Martin Visiting Professor of Law
Northwestern
University School of Law
Evanston, Illinois
ASIL
Member: Yes
ASIL
Member since: 1987
Stephanie
Farrior
Professor
of Law
Pennsylvania State University
School of Law
Carlisle, Pennsylvania
ASIL
Member: Yes
ASIL
member since: 1987
Professor
Julie Mertus
Co-Director,
Ethic, Peace and Global Affairs
American University
Washington, D.C.
ASIL
member: Yes
ASIL
member since: 1988 with a couple of years off for overseas missions
Gregory
H. Fox
Associate
Professor of Law
Wayne State
University School
of Law
Detroit, Michigan
ASIL
Member: Yes
ASIL
member since: for about 18 years
Michael
P. Scharf
Professor
of Law
Case Western
Reserve University
School of Law
Cleveland, Ohio
ASIL
Member: Yes, in second year on the Executive Committee
ASIL
member since: 17 years
Professor
Donna E. Arzt
Dean’s
Distinguished Research Scholar
And
Director, Center for Global Law and Practice
Syracuse University College
of Law
Syracuse, New
York
ASIL
Member: Yes
ASIL
member since: for about 17 years
Ronald
C. Slye
Associate
Professor
Director,
International and Comparative Law Programs
Director,
Center for Global Justice
Seattle University School
of Law
Seattle, Washington
ASIL
Member: Yes
ASIL
member since: probably late 1980’s
William
O. Hennessey
Professor of Law and
Chair, Intellectual Property Graduate
Programs
Franklin Pierce
Law Center
Concord, New Hampshire
Current ASIL member: Yes
ASIL member since: 1989
Naomi
Roht-Arriaza
Professor
of Law
University of California,
hasting College
of Law
San Francisco, California
ASIL
Member: Yes and former member, ASIL Executive Council
ASIL
member since: 1990
S.
James Anaya
James
J. Lenoir Professor of Human Rights Law and Policy
University
of Arizona Rogers College
of Law
Tucson, Arizona
ASIL
Member: Yes
ASIL
member since: 1990 (or thereabouts)
William
J. Aceves
Professor
of Law
California Western School
of Law
San Diego, California
ASIL
member: Yes
ASIL
member since: 15 years
Kathleen
Johnson
Gespass
& Johnson
Birmingham, Alabama
ASIL
Member: Yes
ASIL
Member since: off and on for 15 years consistently now for about 4 years
Maivan
Clech Lam
Professor
of International Law
Associate
Director
Ralph
Bunche Institute for International Studies
The
Graduate Center
The
City University
of New York
New York, New
York
ASIL
member: Yes
ASIL
member since: 1993
Andrea
K. Bjorklund
Acting
Professor
University of California,
Davis, School of Law
Davis, California
ASIL
member: Yes
ASIL
member since: 1994
Donald
K. Anton
Senior
Lecturer in Law
The
Australian National University
College of Law
Canberra, Australia
ASIL
member: Yes
ASIL
member since: 1994 with a year or two hiatus
Sharon O’Brien
Associate Professor
Department of Political Science
University of Kansas
Lawrence, Kansas
Current ASIL Member: Yes
ASIL Member Since:
for 10+ years
Diane
Marie Amann
Professor
of Law
University of California,
Davis School of Law (Martin Luther King, Jr.
Hall)
Davis, California
ASIL
member: Yes
ASIL
member since: for about 10 years
Leila
Nadya Sadat
Henry
H. Oberschelp Professor of Law
Washington University School
of Law
St. Louis, Missouri
ASIL
Member: Yes
ASIL
member since: 10 years
Karen Halverson Cross
Professor of Law
The John
Marshall Law
School
Chicago, Illinois
Current ASIL Member: Yes
ASIL Member Since:
for about 10 years
Beth
Stephens
Professor
Rutgers School
of Law – Camden
Camden, New
Jersey
ASIL
member: Yes
ASIL
member since: 1996
Dr.
Andreas L. Paulus
Lecturer
Ludwig-Maximilians-University
Institute
of International Law – Comparative Public Law, International and European Law
Munich, Germany
ASIL
Member: Yes
ASIL
Member since: 1996
Richard
J. Wilson
Professor
of Law
Director,
International Human Rights Law Clinic
American University
Washington College of Law
Washington D.C.
ASIL
Member:Yes
ASIL
member since: 1996
Itzchak E. Kornfeld, Esquire
General Counsel
OAsys Environmental Solutions, LLC
Philadelphia, Pennsylvania
Visiting Professor
Drexel University
Philadelphia, Pennsylvania
Current ASIL Member: Yes
ASIL Member Since:
for about 10 years
Barbara
Stark
Professor
of Law
Hofstra University School
of Law
Hempstead, New
York
ASIL
member: Yes
ASIL
member since: about 10 years
Robin
Teske
Professor
of Political Science
James Madison
University
Harrisonburg, Virginia
ASIL
Member: Yes
ASIL
Member since: for about 10 years
Aaron
Fellmeth
Arizona State University
Phoenix, Arizona
ASIL
Member: Yes
ASIL
Member since: for about 10 years now
Michael
Ratner
President
Center
for Constitutional Rights
www.ccr-ny.org
ASIL
member: Yes
ASIL
member since: 5-10 years
Jennifer
Moore
Professor
of Law
University
of New Mexico School of Law
Director
of UNM peace Studies Program
ASIL Member: Yes
ASIL
member since: 1997
George
E. Edwards
Carl
M. Gray Professor of Law and
Director
(Founding), Program in International Human Rights Law and
Faculty
Director/Advisor (Founding), LL.M. Track in International Human Rights Law
Indianan
University School
of Law at Indianapolis
Indianapolis, Indiana
ASIL
member: Yes
ASIL
member since: 1997
Muna
Ndulo
Professor
of Law
Cornell Law School
Ithaca, New York
ASIL
member: Yes
ASIL
member since: 1998
Beth
Van Schaack
Professor
of Law
Santa Clara University School
of Law
Santa Clara, California
ASIL
member: Yes
ASIL
member since: 1998 (give or take)
Sarah
H. Cleveland
Marrs
McLean Professor in Law
University
of Texas School of Law
Austin, Texas
ASIL
Member: Yes
ASIL
Member since: 1998
Mark
A. Drumbl
Ethan
Allen Faculty Fellow and Associate Professor of Law
Washington and Lee
University School
of Law
Lexington, Virginia
ASIL
member: Yes
ASIL
member since: 1999
Derek
Jinks
Assistant
Professor of Law
University
of Texas School of Law
Austin, Texas
ASIL
member: Yes
ASIL
member since: 1999
Christopher
Gibson
Associate
Professor of Law
Suffolk University Law
School
Boston, Massachusetts
ASIL
Member: Yes
ASIL
Member since: 1999
Jamie Mayerfield
Associate Professor Political Science
Adjunct Associate Professor of Law, societies & Justice
Seattle Campus Advisor, Human Rights Minor
University of Washington
Seattle, Washington
“Torture, ill-treatment, and secret incommunicado detention
are emphatically prohibited by international law. The American Society of International Law
must take a public stand against these barbaric practices.”
Current ASIL Member: Yes
ASIL Member Since:
Since 2001
Connie
de la Vega
Professor
of Law
University
of San Francisco School of Law
San Francisco, California
ASIL
Member: Yes
ASIL
member since: 4-5 years perhaps
Katherine Newell Bierman
Counterterrorism Counsel, U.S.
Program
Human Rights Watch
Washington, D.C.
Current ASIL Member: Yes
ASIL Member Since: 2001-2004, 2005-present
Walter
J. Kendall III
The
John Marshall Law
School
Chicago, Illinois
ASIL
member: Yes
ASIL
member since: 4 or 5 or more years
Bert
B. Lockwood, Jr.
Distinguished Service Professor of Law
and
Director, Urban Morgan Institute for Human Rights
University
of Cincinnati Law School
ASIL
Member: Yes
ASIL
member since: for many years
Cindy G. Buys
Assistant Professor of Law
Southern Illinois University
School of Law
Carbondale, Illinois
Current ASIL member: Yes
ASIL member since: 5 years
Jenny S. Martinez
Assistant Professor
Stanford Law
School
Stanford, California
ASIL
Member: Yes
ASIL
member since: 5 years
Dr.
Syed A. Wasif
President,
Society for International Reforms & Research
Virginia, USA
Professor
of International Law & Human Rights
ASIL
Member: Yes
ASIL
Member since: 5 years
Hari
M. Osofsky
Visiting
Assistant Professor (2005-06)
Assistant
Professor (2006-)
University
of Oregon School of Law
Eugene, Oregon
ASIL
member: Yes
ASIL
member since: 2002
Joel
Ngugi
Assistant Professor of Law
University of Washington School
of Law
Seattle, Washington
Current ASIL member: Yes
ASIL member since: 2002
Naomi
Norberg
J.D.
University of California-Davis, King Hall School of Law
Ph.D
candidate, University
of Paris I
(Pantheon-Sorbonne)
ASIL
Member: Yes
ASIL
member since: 2002
Melissa
A. Waters
Assistant
Professor of Law
Washington & Lee University School
of Law
Lexington, Virginia
ASIL
Member: Yes
ASIL
member since: 2002
David
Gespass
Gespass
& Johnson
Birmingham, Alabama
ASIL
member: Yes
ASIL
member since: 2005
Karen
Erica Bravo
Assistant
Professor of Law
Indiana University
School of Law – Indianapolis
Indianapolis, Indiana
ASIL
member: Yes
ASIL
member since: 2005
Benjamin Davis
Associate Professor of Law
University of Toledo College
of Law
Toledo, Ohio
Current ASIL Member: Yes
ASIL Member Since:
Since 2005
Benjamin
N. Schiff
Professor
of Politics
Oberlin College
Oberlin, Ohio
Visiting
Professor
University of Leiden Faculty of Law
The Hague, The Netherlands
ASIL
Member: Yes
ASIL
Member since: 2006
Nancy Combs
Professor
of Law
Law School
of the College of
William and Mary
Williamsburg, Virginia
ASIL
member: Yes
ASIL
member since: 2006
Meredith Kosky Lewis
Victoria University
of Wellington Law School
Wellington, New Zealand
Current ASIL Member: Yes
ASIL Member Since:
Since 2006
John Lunstroth, LLM, MPH (cand)
History of Public Health & Medicine: Ethics,
Policy & Society
School of Public Health
Columbia University
New York, New York
Current ASIL Member: Yes
ASIL Member Since:
About a month
Wil
Burns
Associate
Professor
International
Environmental Policy Program
Monterey
Institute of International Studies
Monterey California
and
Chair,
on behalf of the International Wildlife Law Committee
American
Branch, International Law Association
ASIL
Member: Yes
ASIL
Member since:
John
N. Petrie
Assistant
Vice President for
Public
Safety & Emergency Management
The
George Washington University
Washington D.C.
35
years in the US Navy
ASIL
Member: Yes
ASIL
Member since:
Cecelia
Lynch
Associate
Professor
University of California
– Irvine
Irvine, California
ASIL
Member: Yes
ASIL
Member since: does not remember
David
Luban
Frederick
Hass Professor of Law and Philosophy
Georgetown University Law
Center
Washington, D.C.
Currently
Leah Kaplan Visiting Professor of Human Rights
Stanford Law School
Stanford, California
ASIL
Member: Yes
ASIL
member since: (not available)
Brad Roth
Associate Professor of Political Science
& Law
Wayne State
University
Detroit, Michigan
Current ASIL member: Yes
ASIL member since: long-time member
NON-ASIL
MEMBER LIST
(organizations
for identification purposes only)
Robin
Alexander
UE
Director of International Labor Affairs
United
Electrical, Radio and Machine Workers of America
Pittsburgh, Pennsylvania
Ewen Allison
Mary-Ann Greifeneder Allison, MA
Philosophy
Alphonso J. Alvarez-Calderon Yrigoyen
Estudio Alvarez Calderon Abogados
Lima, Peru
Basilio
Dias Araujo
Co/Founder
of Papua and Aceh Study Group
Laks
Salemba Foundation
Jakarta, Indonesia
Michael
Avery
President,
National Lawyers Guild
Professor,
Suffolk Law School
Boston, Massachusetts
Paolo Bargiacchi
Lecturer in International Law
University of Palermo
Palermo, Italy
Peter
Bailey
(Adjunct)
Professor
Faculty
of Law
Australian National University
Canberra, Australia
Amy Bartholomew
Associate Professor
Department of Law
Carleton University
Ottawa, Canada
Norman Bay
Assistant
Professor of Law
University
of New Mexico School of Law
Albuquerque, New
Mexico
Jason A. Beckett
Lecture in Law
Newcastle University
United
Kingdom
Yves
Beigbeder
Former
WHO official (Retired)
France
Robert
Benson
Professor
of Law
Loyola Law
School
Los Angeles, California
Sonia
Cardenas
Associate
Professor
Department
of Political Science
Trinity College
Hartford, Connecticut
Charlene A Cassel
Toledo, Ohio
Carol Chomsky
Professor of Law
University of Minnesota
Law School
Minneapolis, Minnesota
Marjorie
Cohn
Professor
of Law,
Thomas Jefferson
School of Law
San Diego, California
President-elect,
National Lawyers Guild
Geoffrey
S. Corn
Assistant
Professor of Law
South Texas
College of Law
Houston, Texas
Edward J. Costello
Private Dispute Resolution
Santa Monica, California
Elias Davidsson
Human Rights Activist
Reykjavik, Iceland
Christina A. Davis, Ph.D
Fort Worth, Texas
Maria Depaul
Virginia
Dr. Pol de Vos
Coordinator of “Stop United States of Aggression”
(www.stopUSA.be)
Donna L Diekoff
Toledo, Ohio
Dr. Curtis F. J Doebbler
International Human Rights Lawyer
Thomas Martin Doyle, Jr., J.D.
Children in Placement Connecticut Inc. (Court Appointed
Special Advocate/Guardian Ad Litem, Connecticut Superior Court, Juvenile
Matters)B.A. (Labor Studies), Antioch Univ., 1988; J.D. University of
Connecticut School of Law 1994; Veteran, United States Marine Corps
Gregory M. Duhl
Visiting Assistant Professor of Law
Southern Illinois
University
School of Law
Carbondale, Illinois
Beth
A. Eisler
Interim
Dean and Professor of Law
University
of Toledo College of Law
Toledo, Ohio
Paul
Fiscella
Martin
Flaherty
Professor
of Law
Co-Director,
Joseph R. Crowley Program in International Human Rights
Fordham Law School
New York, New
York
Brian
J. Foley
Assistant
Professor of Law
Florida Coastal School of Law
Jacksonville, Florida
Charles B. Gittings, Jr.
Program to Enforce the Geneva Conventions
Fort Bragg, California
Robert
Kogod Goldman
Professor
of Law & Louis C. James Scholar
Washington College of Law
American University
ASIL
Member: No (lapsed since last year)
ASIL
member since: first a member in 1971
Ruth
Gordon
Professor
of Law
Villanova University School
of Law
Villanova, Pennsylvania
ASIL
member: former member
Brian
T. Hanson
Associate
Director
Center
for International and Comparative Studies (CICS)
Lecturer
in Political Science
(ACUNS
Member: 5 years)
Northwestern
University
Evanston, Illinois
William O. Hennessey
Professor of Law
Franklin Pierce Law Center
Concord, New Hampshire
Admiral
(Ret.) John D. Hutson
Dean
& President
Franklin Pierce Law Center
Concord, New
Hampshire
Dan
Ivy, J.D. LL.M.
Dan
Ivy Law Centers
Fayetteville, Arkansas
Craig L. Jackson
Professor of Law
Texas Southern University
Thurgood Marshall School of Law
Houston, Texas
Erika
Anne Kreider
Tucson, Arizona
John Makdisi
Professor of Law
St. Thomas University School
of Law
Miami Gardens, Florida
Professor Margaret E. Montoya
University of New Mexico School
of Law
Albuquerque, New Mexico
ASIL Member:
ASIL
member since:
Mary Maxwell, Ph.D.
President, Australian Institute of
International Affairs, SA Branch
Director, Maternal Brain Pty Ltd
Adelaide, Australia
James D. Mick
Toledo, Ohio
Leora Mosston
Jane Musgrave
Toledo, Ohio
Dr.
Edward-Kennedy Nasho
Cambridge, England
Dr. Trevor Purvis
Department of Law/ Institute of Political
Economy
Carleton University
Ottawa, Ontario
Canada
John
Quigley
President’s
Club Professor in Law
The
Ohio State University
Columbus, Ohio
Srividhya Ragavan
Associate Professor of Law
University of Oklahoma Law
Center
Andrew M. Coats Hall
Norman, Oklahoma
Vernellia
Randall
Professor
of Law
University
of Dayton School of Law
Dayton, Ohio
Michael J. Rauh
Toledo, Ohio
Heiko Recktenwald
Bonn, Federal Republic of Germany
William
M. Richman
Distinguished
University Professor
University
of Toledo College of Law
Toledo, Ohio
Joseph Roberts
Seattle, Washington
Charles
Rowland
Adjunct
Professor of Law
James Cook
University
Queensland, Australia
Adjunct
Reader
Australian National University
Farrer, Australia
Natsu Taylor Saito
Professor of Law
Georgia State University College of Law
Atlanta, Georgia
Ole
Jacob Sending
Dr.
Polit.
Senior
Researcher
Norwegian
Institute of International Affairs
Oslo, Norway
Barry
Shanks
Reference
Librarian, Ass’t Prof of Research
Franklin Pierce Law Center
Concord, New
Hampshire
Edwin
M. Smith
Leon
Benwell Professor of Law and International Relations
Academic
Director of International Programs
The
Law School
University of Southern California
Los Angeles, California
ASIL
member: No
ASIL
member since: (Had been a member since 1984; membership lapsed in last year or
two)
Dr.
Peter Stoett
Department
Chair
Associate
Professor, International Relations
Department
of Political Science
Concordia University
Montreal, Canada
Sompong
Sucharitkul, D.C.L.
Associate
Dean and Distinguished Professor of International and Comparative Law
Director
of the S.J.D. Program
Golden Gate University School
of Law
San Francisco, California
Elizabeth Thornburg
Professor of Law
SMU Dedman School
of Law
Dallas, Texas
Paul L. Tractenberg
Board
of Governors Distinguished Service
Professor and Alfred C. Clapp Service
Professor of Law
Rutgers School of Law – Newark
Newark, New Jersey
Jennifer Van Bergen
Jennifer Van Bergen, a journalist and legal commentator, is
the author of THE
TWILIGHT OF DEMOCRACY: THE BUSH PLAN FOR AMERICA (Common Courage Press,
2004) and a guest columnist on Findlaw.com. She writes frequently for
various publications on civil liberties, human rights, and international law.
Johan
D. Van der Vyver
I.T.
Cohen Professor of International Law and Human Rights
Emory University School
of Law
Atlanta, Georgia
Christiane Wilke
Assistant Professor
Department of law
Ottawa, Ontario, Canada
Professor Darryl C. Wilson
Stetson University College
of Law
1401 61st
Street South
St. Petersburg, FL 33707
William J. Woodward, Jr.
Professor of Law
James Beasley School
of Law
Temple University
Philadelphia, Pennsylvania
Executive Summary (cnt’d)
Because America is this –
Stain Glass Window donated in memory of Korean War
Veteran,
St. Mark’s Episcopal Church, Toledo, Ohio
Above the eagle above the world is written: Semper
Fidelis
In the middle under the world is written: Keep Our Honor Clean
Executive Summary (cnt’d)
And not this – One Abu Ghraib photo
“The extraordinary conclusion by the [United States]
that some individuals have no right not to be tortured or abused while in detention
is simply wrong.” Mary-Ellen O’Connell, Affirming the Ban on Harsh
Interrogation, 66 Ohio St.
L. J. (2005)
Semper Fidelis: Keep Our Honor Clean
Presenting our
Draft American Society of International Law Resolution
By Benjamin G. Davis
I am grateful for the invitation of President James
Carter to present our draft American Society of International Law (ASIL)
resolution to the Executive Council at its meeting of March 29, 2006.
I thank you for permitting University of Toledo Law
students Sana Ashraf, David Bailiff, Carrie Foulks, Tim Hunter, Vijay Jetley,
Megan Mattimoe and Christopher Sallah to sit in on this session.
I. Our History
As noted in the Milestones in the American Society of
International Law’s First Hundred Years (http://www.asil.org/aboutasil/history.html
), the ASIL was founded as an outgrowth of the 19th century peace
movement.
Initially, Elihu Root, a Nobel Peace Prize laureate
and the first President, had two goals: scholarship to reveal and explain
governing rules and principles of international law, and the effort to
popularize international law so that an informed public could prod national
leaders into settling international disputes by applying legal principles.
World War I jolted the ASIL’s idealism and World War
II slowed its momentum. At that time, in
one of its few departures from a stance of public institutional neutrality, the
ASIL adopted a resolution strongly favoring acceptance of the International
Court of Justice “compulsory” jurisdiction and forcefully presented it to the
Senate.
In the 1940’s and 1950’s ASIL changed slowly.
During national turmoil over Viet Nam, in
the late 1960’s and early 1970’s, the ASIL provided a forum in which supporters
and opponents of government policies argued the legal issues.
In the early 1990’s the ASIL began developing Outreach
programs in response to a Ford Foundation evaluation that gave ASIL high marks
for meetings and publications but low marks for influencing public policy. Programs of regular briefings in Washington, Insight
bulletins and the ASIL website were created.
Today, diversification within ASIL continues – not
only do 40 per cent of the 4,000 members come from outside the United States,
with nearly 100 countries, but women and persons of color have become more
involved in ASIL leadership.
The Society’s transformation – to serve members with
greater electronic interactivity and to engage more non-international law
policy actors – continues.
Our draft ASIL resolution draws on each of the strands
of that history to bring us together today.
We reach back to the origins in the 19th century peace
movement. We reach back to Elihu Root’s vision of both scholarship and
popularizing international law to create an informed public. We remember the jolts to our idealism from
World War I and World War II. We reach
back to the renewal with our idealism in the courage of those who knew that
trauma and both adopted a resolution in support of the International Court of
Justice and lobbied the Senate. We reach
back and remember the slow growth of the 1940’s and 1950’s. We remember the forum role during the Viet
Nam War. We remember the high marks for
meetings and publications in the 1990’s but also the low marks for influencing
public policy. We engage as men and
women of all colors. We applaud the
outreach efforts. We draw from the
ASIL’s greater electronic interactivity.
We weave together what is best of that tradition to
give the ASIL through its members and its leadership the opportunity today to
move the world forward with tempered idealism on the road to a just world under
law.
II. Our task today
Our task today is to evaluate whether today is one of
those rare occasions when the ASIL should adopt a resolution on the matters
that have been presented to you.
The Executive Council knows my goal. My goal is that the ASIL adopt this text
today as is and recommend that it be so adopted by the annual business meeting
tomorrow March 30, 2006. I think that is
the right thing to do here and now. I
believe our draft ASIL resolution reaffirms certain fundamental bedrock rules
of international law. I think it is
essential that such fundamental rules be reaffirmed at this time.
I could present you my personal journey to this
conclusion (and some maybe interested in that so I include that as an annex to
this presentation) but this effort is not about me, it is about us. That us includes those who are co-signators
of this draft, the Executive Council, and all the members of this learned
society.
I think our task requires us to look back at our
history and look forward at our future and determine whether the present is a
time for action to reaffirm international law or merely a time of reflection on
international law.
III. A New Paradigm: Back to the Source – Grotius et
al
I have as have many of you heard the term “new
paradigm” bandied about in these times – state and non-state actors in a new
kind of armed conflict that permitted “gloves to come off” etc. To help our reflection on our time, I have
permitted myself to go back to a source who would not likely be considered a
partisan in the current political debates – Hugo Grotius. I do not believe Democrats or Republicans and
red or blue states were concerns of his.
I looked for his appreciation of war and stumbled upon
this quote from his 1625 Treatise on the Law of War and the Law of Peace.
“Private Men may certainly make War again[s]t private Men, as a Travel[l]er against a Robber, and
Sovereign Princes again[s]t Sovereign Princes, as David again[s]t the King of
the Ammonites; and [s]o may private men
against Princes, but not their own, as Abraham did again[s]t the King of
Babylon, and his A[ss]ociates. So may Sovereign Princes against private
men, whether their own Subjects, as David against I[s]bbo[s]eth and his
Party, or Strangers, as the Romans against Pirates.”(Emphasis added)
As I read on it became very clear to me that state and
non-state actors in armed conflict was not a particularly new phenomenon – let
alone a paradigm. Put another way, as
with many things human, once again, there is nothing new under the sun.
I also permitted myself to turn from my private
international law interests to read those writing about the new paradigm. I even wrote a short article in the Chinese
Journal of International Law in which I responded to a classic new paradigmatist
(if that is a word) Professor John Yoo and drew on the analyses of William Taft
IV (former Legal Adviser of the United States State Department and a
traditionalist in his reasoning) and
others (possibly old paradigmatists). I
permitted to introduce an old concept in this discussion that the analysis (in
that case of the Geneva Conventions) to which I
was responding was simply wrong, with devastating consequences for the United States.
I engaged as many of you have with the military to
understand this new paradigm. At a
conference at the Center on Law, Ethics and National Security at Duke, I was
disturbed by the answer to a question I asked John D. Altenburg, Jr., Major General,
USA (ret),
Appointing Authority, Office of Military Commissions, Department of Defense who
is the appointing authority for the current military commissions in the
new paradigm armed conflict.
I asked General Altenburg about Plot E. Plot E is a military burial plot of the
American Battlefield Monuments Commission in Oise-Aisne, France
where American soldiers – primarily black including Emmett Till’s father – were
buried in numbered graves after courts-martial and execution in World War II. The procedures of those courts-martial were
discredited (unlawful command influence being one key concern) in the late 1940’s
and early 1950’s (the Vanderbilt Commission) and those old procedures were
replaced by those in the Uniform Code of Military Justice (procedures
essentially adopted from the Navy).
I said I failed to see how the use of discredited
procedures by military commissions to discredit terrorists such as procedures
that led to Plot E was the way to proceed.
He said that he knew about Plot E, there was no excuse for what happened
in World War II, and the difference was that the people today were different from
those back then. In a discussion at the
break, I said to General Altenburg that I thought he was a good man in a bad
spot and that he should always keep in mind the power he has to resign (he
remains retired though in this role). I
understood from him that the people today had not learned from the 60 years of
experience and that the military commission procedures being used were
throwback procedures.
And as a new ASIL member but a person of color of a
certain age, I permit myself to engage with new paradigms in a way that many
ASIL members no doubt rarely experience.
As in part an African-American my personal history goes back to my slave
woman ancestor Barbary - born in 1787 and sold into slavery in 1800 to the
Benjamin Harrison family one of the founders of this country and signer of the
Declaration of Independence (my “a founder owned my ancestor” objection to
originalism). That history led me to
think that, indeed, Jim Crow procedures were being used (in this case) on
foreigners. In this new paradigm, there
really is nothing new under the sun.
And given another interesting court decision where a
judge noted that
“No federal court has ever examined the nature of the substantive
due process rights of a prisoner in a military interrogation or prisoner of war
context.”
and the dynamic of the McCain amendment debacle, I
thought it is perfectly reasonable to be very unsure that the three branches of
the United States Federal Government are aware of (or willing to make
themselves aware of) or are willing to make sure that the United States acts in
accordance with our international law obligations.
IV. What is to be done?
In this ambivalent legal space, the question that
arises is what is the role of the American Society of International Law. Certainly it is possible to have another
conference, to have another Insight, to have another lively discussion on the
ASIL Forum. Yet, looking back to our
history my concern is that those laudable efforts of reflection are business as
usual in time of new paradigms.
After almost a year’s reading and reflection, it
seemed to me that reflection was not enough and that this was a time for
action.
I think it is important to have some bedrock rules of
international law stated by someone neutral – above the fray – but eminently
concerned about international law. It
seems to me that a set of modest rules – vanilla ice cream international law so
to speak - would be the best to do.
I contacted President James Carter last December 5 to
understand how a resolution is done and an opportunity given to the ASIL to
renew with its traditions.
V. How we drafted our Resolution
On the ASIL Forum
we drafted our resolution from January 6 to January 27 – we forged it so to
speak in that cauldron. We started with
a preliminary draft, an amended draft and a second amended draft to come to the
final version. All were subject of
significant commentary. In the process,
it became clear that preambles and extraneous verbiage were detrimental to
consensus and we simplified the draft to essential core principles on which
consensus appeared possible. We
submitted the draft to signature by the members of this learned society and
other interested persons.
On January 30, 2006, the draft was submitted with far
more than the requisite minimum of three co-signators required by the ASIL
Constitution and Regulations to the President and Executive Director requesting
it be adopted at the Centennial annual business meeting. Soon thereafter, as a courtesy, it has been
sent to as many present and future members of the ASIL Executive Committee and
ASIL Executive Council as e-mails have been found. The ASIL leadership has been encouraged to
send the draft resolution on to members during this time.
Since January 30, 2006, the resolution has been posted
on my faculty website at the University of Toledo College of Law and on the
website of the Project to Enforce the Geneva Conventions by my dear colleague
Mr. Charles Gittings. In February, it
has been forwarded to all the Chairs or Co-Chairs of the interest groups of the
ASIL requesting that they forward the draft to their members to inform them
that the draft is submitted to the ASIL leadership and urging them to support
the draft. It has been forwarded to the
American Branch of the International Law Association (www.ambranch.org)
including each of its Committee Chairs as well as to the Academic Council on
the United Nations System (www.acuns.org)
in an effort to reach as many ASIL members and interested persons as
possible. It has been forwarded on
several American Association of Law School (www.aals.org
) listservs. Diverse persons have sent
the draft as far afield as to Australia
and China
from where co-signators have emerged.
Thus, a wide opportunity to be informed has been provided to ASIL
members by the ASIL forum members and the signators in support of the draft
ASIL resolution.
On March 2, 2006 I have provided to United States
Supreme Court Justice Anthony Kennedy, who will be the keynote speaker at this
Centennial meeting, a copy of the January 30, 2006 letter to the
President and Executive Director of ASIL, the draft resolution, the
co-signators as of that point, and the January 30, 2006 press release.
I believe an ASIL member would have to work hard at
this point to not be aware of the resolution.
If a member of the Executive Committee or the Executive Council is aware
today of an ASIL member who is not aware of our draft ASIL resolution, please
forward that ASIL member the link to my faculty page immediately
and tell them I am asking them to support the draft by sending me an e-mail as
soon as possible to ben.davis@utoledo.edu
by 7h00 pm on March 28, 2006.
VI. The co-signators
I want to encourage the members of the Executive
Committee and the Executive Council to read the names of the co-signators,
their years of ASIL membership, and remember what the member knows about the
co-signators’ expertise in this arena. I
want the members to think about the divergent views of the co-signators on
international law issues as reflected in their books, journal articles,
speeches etc.
I think the significant thing is that notwithstanding
this diversity of age, gender, race, nationality, background, political point
of view, school of thought in international law, or other divergence, all of
these persons have been willing to say to the American Society of International
Law that this resolution - our resolution - should be adopted by the ASIL at
this Centennial meeting.
Our first signature has been from Professor Carl Q.
Christol, 57 year member of the ASIL and
well known to many of you and to many of your parents no doubt. Our last signatures have been from members
joining in 2006. The years from 1949 to
2006 in the history of this organization are represented. And illustrious members of the academy and
the professions support our draft resolution.
Please look at the Executive Summary list which was developed each 7 to
10 days since January 30, 2006 and sent to the ASIL leadership. Co-signators with significant high level
government experience in their pasts such as Dean Harold Hongju Koh have
rallied to our resolution. Others that
are former military such as Professor Jordan Paust and Dean and Admiral John D.
Hutson have decided to sign on.
Illustrious members of significant tenure such as Professor Valerie Epps
have supported this effort.
A movement within the ASIL beyond reflection to
reflection and action has been made by a broad cross-section of the ASIL. This movement is completely consistent with
the history of our organization when – at a few critical junctures – we have
felt the need to respond resolutely in a call to affirm international law.
VII. Our draft
Our draft is a modest proposal, it breaks no new
ground. It does not state detailed citations to treaties, treatises, customary
international law, and cases because the goal is not to create a brief or a
restatement. The goal is to create a
document that reaffirms certain bedrock international law principles in a
neutral manner that is easily comprehensible by ASIL members, non-Members
interested in the subject matter, leaders in every field, and, most
importantly, ordinary citizens. Such a
document assures that we help popularize international law to inform the
public. And the public is interested in
what we are doing with this draft (See the non-ASIL member supporters as well
as the moving letter of support in Annex III from ordinary citizens with two
sons in Iraq).
Some on the left have regretted that the draft does
not go far enough. The main substantive concern I have heard on
the right has been from my colleague Professor Richard Edwards to whom I am
indebted. While his concerns at first
were with the wisdom of a resolution, since his initial hesitation, he has come
to support the idea of a resolution (though maintaining a concern about the
terms “secret incommunicado detentions,”
preferring that certain phrases in paragraph 4 be in separate paragraphs, and suggesting
an alternative to the use of the word “enumerated” in paragraph 5).
I have been loathe to make any changes to the draft
out of fear that modifications would be used as a pretext to prevent the
resolution from being put before you or to have it withdrawn from your
consideration prior to a discussion of its merits.
I have also
been loathe to make any changes as this is a draft that has been vetted, in the
process of deciding whether to support the draft as is, by so many
distinguished international law scholars and practitioners on the ASIL Forum and around the world. I can assure you that I have received e-mails
from distinguished scholars who have said that they have carefully vetted the
draft and after that review determined they would support the draft personally
and sometimes also as representatives of entities such as committees of the
American Branch of the International Law Association.
Obviously, the Executive Council has the power to
propose/adopt modifications to the draft and, if for some unforeseen reason
that should occur, I would respond (if my input were sought today). However, I think it is important that the
Executive Council appreciate the gravitas of those co-signators who have come
forward with regard to the present modest text.
Also, I hope the Executive Council would keep in mind the McCain
Amendment debacle (possibly doing more harm than good) which is even the
subject of discussion back in exotic Toledo. Our efforts in this draft have been very
careful to do more good than harm.
Personally, I believe the language as presented in our
draft ASIL resolution is an accurate reflection of consensus international law
principles. I confirm to you that the
language is consensus language developed by a broad spectrum of participants.
Beyond the above substantive comments, I have received
a cryptic e-mail from Mr. Edwin D. Williamson of Sullivan and Cromwell stating
that the ASIL does not make policy statements and also as he learned in law
school, do your research before you act.
He went on to say what I was doing was an abuse of the system. I have responded that the ASIL does pass
resolutions consistent with its Constitution and Regulations and it has done so
on occasion. This fact is borne out by Professor Frederic Kirgis’ memo on
taking positions from last year of which the members of the Executive Committee
and the Executive Council are no doubt aware.
I have also respectfully disagreed with Mr. Williamson as to this effort
being an abuse of the system. On the
contrary, it is the essence of the system as it can operate in a world with
internet technology. The ASIL even touts
its interactivity on its website. Our
discussion has not progressed beyond that point.
VIII. Why do this now?
Reaffirming international law rules will help the United States
understand its international legal obligations in a manner that I believe will
improve the level of discussion of all Americans as we examine how to protect
ourselves. It will remind all of us of
bedrock principles that have served us in the past. It will help all have a sense of what is the
bedrock to which the United
States is to conform or be in violation of
its international law obligations.
This resolution is a voice – some might call it a
voice of reason - that is not heard very
loudly in the United States
today. The ASIL has the opportunity to
be that voice of reason to help us be our best selves.
Our draft ASIL resolution is not a political
statement. It does not argue for a
policy or another but aggressively argues for the rule of law as expressed
neutrally in these bedrock principles.
I believe the ASIL resolution can help the United
States be its best self when it might, out of fear, go back to its worst self
as happened with the treatment of Native Americans, slave rebellions, civil
rights demonstrators, union organizers, and even violent internal groups such
as anarchists at the turn of the 20th century and the Black
Panthers.
I believe that the prestige and status of the ASIL
will be greatly enhanced in America
and around the world in our Centennial year by your action to reaffirm
international law principles in our borders and beyond them. I also think that our leadership will help
encourage similarly minded persons in other countries to be voices of reason to
help us move toward that just world under law.
IX. What should the ASIL do?
At an earlier meeting of the ASIL, on
April 13, 1945, in an address to the ASIL entitled “The Rule of Law Among
Nations,” Robert H. Jackson - who led the International Military Tribunal at
Nuremberg, sat on the United States Supreme Court and is a distinguished jurist
cited approvingly and frequently by diverse members of the political and
judicial branches (including the nominees) in the recent confirmation hearings
of Chief Justice John Roberts and Justice Samuel Alito - stated to our
predecessors that:
“The trouble has been that the advocates
of International Law have had too little of what Mr. Justice Holmes called
“fire in the belly,” while the extreme nationalists have had too little else.”
Now is the time for action in favor of international
law with “fire in the belly.”
If we go back to the criteria for adoption of a
resolution posited in the Executive Council policy statement unanimously
adopted almost forty years ago at its April 1966 meeting:
“The Council in the future will recommend that the
Society adopt resolutions urging action by persons outside the Society in only
two types of circumstances:
(i)
Resolutions relating to technical matters primarily of professional interest to
international lawyers and scholars.
(ii)
Resolutions relating to principles of international law or international
relations, when all of the following conditions have been satisfied:
(a) The
matter is one which is generally considered by members of the Council to
involve a matter of truly fundamental importance in promoting the establishment
and maintenance of international relations on the basis of law and justice.
(b) The
matter is one in respect of which most members of the Society can reasonably be
expected to be informed without the preparation of a special committee report.
(c) There
is no significant disagreement within the Society as to the desirability of the
proposed action.”
As to section (i), our modest draft ASIL resolution
might be considered technical by some and with reason. I think though it is of more interest than
primarily to international lawyers and scholars. I think that the breadth of support in the
United States and around the world, the support I have heard about informally
from persons in the U.S. military (who must remain unnamed), the tone of the
messages received and the gravitas of those co-signators who have shown their
support says that this moment is a defining moment and this is a useful
document in this defining moment in shaping a just world under law.
As to section (ii), the resolution relates to
principles of international law or international relations and it meets the
following three conditions for the following reasons:
(ii) (a) All of the supporters consider the resolution
involves a matter of truly fundamental importance in promoting the
establishment and maintenance of international relations on the basis of law
and justice. The supporters mirror the
members of the Executive Council and the ASIL and some are present, former, and
soon to possibly be future members of the Executive Council. Whether or not unanimity is reached, the
matter passes this first test.
(ii)(b) As detailed above the draft resolution is a
modest proposal that has been provided extremely widely to ASIL members through
many different means internally and externally.
The matter is one in respect of which most members of the Society can
reasonably be expected to be informed without the preparation of a special
committee report. The substance of the
modest proposal is bedrock international law.
Thus, the matter passes this second test.
(ii)(c) As of this point, I am not aware of any
substantial disagreement within the Society as to the desirability of the
proposed action of adopting the resolution.
Mr. Edwin D. Williamson has expressed a generalized opposition to
resolutions for reasons described above that I consider are simply without
merit. Professor Richard Edwards has
highlighted a couple of changes he would wish but he has changed position
moving both towards and away from the idea of a resolution and he notes he
might vote in favor of a resolution with some of the changes he would like. I have sent this statement out to the ASIL
forum before submitting it to the Executive Committee and the Executive Council
and asked those there to let me know if there is any disagreement so I can
determine whether it is substantial. In
the context of the broad support that has been demonstrated by what we have
provided the Executive Committee and the Executive Council from the large
number of supporters, I do not see there is substantial disagreement within the
ASIL – this is the standard that has to be met and we have met it.
It should also be noted that these criteria enunciated
in a policy statement were established 40 years ago and they are only a policy
statement that may or may not be considered binding by the current Executive
Council in its deliberations. The
question then would be whether it is wise to act in this manner in any event.
As to whether it is wise to act by adopting this
resolution, having it approved at the annual business meeting, publishing it on
the ASIL website, publishing it in the American Journal of International Law
and, as deemed appropriate by the leadership, disseminating it, I am drawn back to Hersch Lauterpacht’s “The
Reality of the Law of Nations” a lecture given at the Royal Institute of
International Affairs, Chatham House, London, on May 27, 1941 in some of the
darkest days of World War II.
Lauterpacht wrote,
“Constructive thought in
the field of international organization must continue to be based on the view
that while the protection of true sovereignty, conceived as independence of the
power of other States, is the main purpose of international law, its reality
has been thwarted by certain manifestations of State sovereignty and that a
surrender or limitation of some aspects of that sovereignty are still the
essential condition of the effectiveness of the Law of Nations. The
fulfillment of that condition depends not only on the acquiescence but on the
determination of the individual citizen.”
(Emphasis added)
To protect the sovereignty of our country I think the
surrender or limitation of some aspects of that sovereignty is still the
essential condition of the effectiveness of the Law of Nations. I believe that these rules of international
law are the latticework that supports the rule of law – a fundamental rule that we cherish in the United States. Supporting this resolution is coming back to
American first principles to help us deal with the challenges we face today and
in the future.
The ASIL approval of this resolution would honor the
past of the organization and affirm its future role as a place of learning and
high concern for justice and law in this world.
X. Conclusion
Now is the time for action by determined individuals
of the ASIL Executive Council to recommend adoption of our resolution by the
ASIL today and further for the ASIL to adopt this resolution as is tomorrow.
For the above stated reasons I sincerely hope that
procedural gambits are not used in this meeting and discussion is substantive
and we get rapidly to approving our draft as is.
From my discussion with Executive Director Charlotte
Ku on March 3, 2006, I recognize that it is possible there will be a speaker
after me today who will speak in opposition to this motion. They will have the
advantage of having seen this draft weeks in advance of the meeting, while I
will not have seen what they will say. If they are a member of the ASIL
Executive Committee or Executive Council I am not a member of either and so I
am not in a position to lobby my co-members or use all the tools of persuasion
that can be marshaled at that level to make you fearful of acting on this
now. As you know, I have not lobbied you
over the past two months.
The only authority I have is that of an ASIL member
before the Executive Council and in that role I say to you the following:
I am working in the light with full transparency as
are the other co-signators of this draft ASIL resolution.
Those who might oppose our draft ASIL resolution are
free to take any tack that they think appropriate.
However, they are wrong to oppose this resolution.
I ask you to do the right thing and adopt our draft
ASIL resolution.
With my colleagues we are here to respond to any
questions you may have.
Thank you for your time.
(signed)
Benjamin G. Davis
Annex I -
Letter of January 30, 2006 to President James
Carter and Executive Director Charlotte Ku
January
30, 2006
Mr. James Carter, Esq.
President
The American Society of International Law
2223 Massachusetts Avenue, NW
Washington DC 20008
Fax +1 202-797-7133
Ms. Charlotte Ku
Executive Director/Executive Vice President
The American Society of International Law
2223 Massachusetts Avenue, NW
Washington DC 20008
Fax +1 202-797-7133
Dear
Jim and Charlotte:
Further to my phone conversation with Jim of early December
2005, please find attached a draft resolution on International Law that all the
co-signators below (who are more than three members of the American Society of
International Law (“the Society”)) are submitting by this letter to the
President and Executive Director for adoption by the Society at its March 29,
2006 annual business meeting, pursuant to procedures identified at Article IX
of the Constitution and regulations of the Society as posted at www.asil.org.
We are aware of point 4.b at page 32 of the “Report of the
Ad Hoc Committee to Review the Organization and Activities of the American
Society of International Law” of Spring 1983 (Prof. Alfred P. Rubin,
Chairman). We are also aware of the note
dated March 24, 2005 entitled “ASIL Consideration of Taking Positions on
International Law Issues” by Rick Kirgis and the 1966 policy statement of the
Executive Council on the adoption of resolutions.
The attached draft resolution on international law is in
compliance with that policy statement.
Thank you for your attention to this submission. Please let me know if you need further
information.
Warmest personal regards,
Benjamin
G. Davis
Associate
Professor of Law
University
of Toledo College of Law (for identification purposes)
Current
Society Member: Yes
Years
of Membership: Since 2005
Attachment: Draft ASIL Resolution of January 27, 2006
By e-mail,
registered return receipt requested and telefax
ASIL
Member Co-signators (organizations for identification purposes only)
Carl Q. Christol
Distinguished Professor Emeritus,
University of Southern California
Current ASIL Member: Yes
ASIL Member Since:
for over 56 years
Anthony D’Amato
Leighton Professor of Law
Northwestern University
Evanston, Illinois
Current ASIL Member: Yes and Patron of the Society
ASIL Member Since:
for 40 years
Peter W. Schroth
Current ASIL Member: Yes
ASIL Member Since:
Since 1969
Jordan Paust
Mike and Theresa
Baker College
Professor of Law
University of Houston
Law Center
Houston, Texas
Current ASIL Member: Yes
ASIL Member Since:
Believe since 1970
Dr. Johannes Van Aggelen
Geneva, Switzerland
Current ASIL Member: Yes
ASIL Member Since:
Since 1972 with a break from 1976-1980
Armand de Mestral
Professor of Law
McGill University
Montreal, Quebec, Canada
Current ASIL Member: Yes
ASIL Member Since:
Since 1976 (perhaps earlier)
Leo Lovelace
Adjunct Professor of Social Science and History
Chapman University College and Chapman University
Lecturing Professor
Department of Political Science
University of California at Riverside
Riverside, California
Current ASIL Member: Yes
ASIL Member Since:
Since 1981
Karen Halverson Cross
Professor of Law
The John
Marshall Law
School
Chicago, Illinois
Current ASIL Member: Yes
ASIL Member Since:
for about 10 years
Itzchak E. Kornfeld, Esquire
General Counsel
OAsys Environmental Solutions, LLC
Philadelphia, Pennsylvania
Visiting Professor
Drexel University
Philadelphia, Pennsylvania
Current ASIL Member: Yes
ASIL Member Since:
for about 10 years
Sharon O’Brien
Associate Professor
Department of Political Science
University of Kansas
Lawrence, Kansas
Current ASIL Member: Yes
ASIL Member Since:
for 10+ years
Jamie Mayerfield
Associate Professor Political Science
Adjunct Associate Professor of Law, societies & Justice
Seattle Campus Advisor, Human Rights Minor
University of Washington
Seattle, Washington
“Torture, ill-treatment, and secret incommunicado detention
are emphatically prohibited by international law. The American Society of International Law
must take a public stand against these barbaric practices.”
Current ASIL Member: Yes
ASIL Member Since:
Since 2001
Katherine Newell Bierman (in her
personal capacity)
Counterterrorism Counsel, U.S.
Program
Human Rights Watch
Washington, D.C.
Current ASIL Member: Yes
ASIL Member Since: 2001-2004, 2005-present
Maivan Clech Lam
Professor of International Law
Associate Director
Ralph Bunche Institute for International Studies
The Graduate
Center
The City University of New
York
New York, New York
Current ASIL Member: Yes
ASIL Member Since:
Not Available
Benjamin Davis
Associate Professor of Law
University of Toledo College
of Law
Toledo, Ohio
Current ASIL Member: Yes
ASIL Member Since:
Since 2005
John Lunstroth, LLM, MPH (cand)
History of Public Health & Medicine: Ethics,
Policy & Society
School of Public Health
Columbia University
New York, New York
Current ASIL Member: Yes
ASIL Member Since:
About a month
Meredith Kosky Lewis
Victoria University
of Wellington Law School
Wellington, New Zealand
Current ASIL Member: Yes
ASIL Member Since:
Since 2006
Non-ASIL
Member Co-signators (organizations for identification purposes only)
Alphonso J. Alvarez-Calderon Yrigoyen
Estudio Alvarez Calderon Abogados
Lima, Peru
Ewen Allison
Mary-Ann Greifeneder Allison, MA
Philosophy
Amy Bartholomew
Associate Professor
Department of Law
Carleton University
Ottawa, Canada
Charlene A Cassel
Toledo, Ohio
Carol Chomsky
Professor of Law
University of Minnesota
Law School
Minneapolis, Minnesota
Edward J. Costello
Private Dispute Resolution
Santa Monica, California
Christina A. Davis, Ph.D
Fort Worth, Texas
Dr. Pol de Vos
Coordinator of “Stop United States of Aggression”
(www.stopUSA.be)
Donna L Diekoff
Toledo, Ohio
Thomas Martin Doyle, Jr., J.D.
Children in Placement Connecticut Inc. (Court Appointed
Special Advocate/Guardian Ad Litem, Connecticut Superior Court, Juvenile
Matters)B.A. (Labor Studies), Antioch Univ., 1988; J.D. University of
Connecticut School of Law 1994; Veteran, United States Marine Corps
Gregory M. Duhl
Visiting Assistant Professor of Law
Southern Illinois
University
School of Law
Carbondale, Illinois
Charles B. Gittings, Jr.
Program to Enforce the Geneva Conventions
Fort Bragg, California
William O. Hennessey
Professor of Law
Franklin Pierce Law Center
Concord, New Hampshire
Craig L. Jackson
Professor of Law
Texas Southern University
Thurgood Marshall School of Law
Houston, Texas
Mary
Maxwell, Ph.D.
President, Australian Institute of
International Affairs, SA Branch
Director, Maternal Brain Pty Ltd
Adelaide, Australia
Srividhya Ragavan
Associate Professor of Law
University of Oklahoma Law
Center
Andrew M. Coats Hall
Norman, Oklahoma
Heiko Recktenwald
Bonn, Federal Republic of Germany
Joseph Roberts
Seattle, Washington
Natsu Taylor Saito
Professor of Law
Georgia State University College of Law
Atlanta, Georgia
Elizabeth Thornburg
Professor of Law
SMU Dedman School
of Law
Dallax, Texas
Paul L. Tractenberg
Board
of Governors Distinguished Service
Professor and Alfred C. Clapp Service
Professor of Law
Rutgers School of Law – Newark
Newark, New Jersey
Jennifer Van Bergen
Jennifer Van Bergen, a journalist and legal commentator, is
the author of THE TWILIGHT OF DEMOCRACY: THE BUSH PLAN FOR AMERICA
(Common Courage Press, 2004) and a guest columnist on Findlaw.com. She
writes frequently for various publications on civil liberties, human rights,
and international law.
Christiane Wilke
Assistant Professor
Department of law
Ottawa, Ontario, Canada
William J. Woodward, Jr.
Professor of Law
James Beasley School
of Law
Temple University
Philadelphia, Pennsylvania
Annex II – My personal journey (Benjamin G. Davis)
My personal journey to this position is all that I can
describe. Each of the supporters of the
draft has gone down his or her personal path.
My personal journey started on 9/11 when I was
teaching Alternative Dispute Resolution (“ADR”) as a new law professor at Texas
Wesleyan University School of Law in Fort Worth. (This is a mid-career change
after about 17 years in Paris, France working in consulting and in private
international law as the American Counsel at the International Chamber of
Commerce International Court of Arbitration, Manager of its Institute of World
Business Law, and Director of Conference Programmes).
My ADR class started just after the second tower was
hit and shortly after the class ended the towers came down. I later learned a high school friend was
killed in one of those buildings giving a presentation on that fateful day.
Several family members live in New
York City so the day was a matter of both general and
personal concern.
Rather than cancel class, I asked my students what
they would advise President Bush to do if he was coming back to Washington D.C.
to meet with them on that day. Some
spoke about attacking the authors of the heinous act, some spoke about changing
the negotiation set of the presumed authors of the act from the Middle East so that they would turn from violence. I was most struck by what an older student –
former Navy – said. He said that the
first thing to do was to look at what our principles are and what we stand for
and then, once we have that clear, look at what we are to do next.
That student got me thinking about what are our
principles in this setting. I remembered
back to the internment of Japanese-Americans and other times of backlash and
tried to think about what I could do in this setting.
Later that day, the first message of condolences I
received was from an old friend in Paris, Mireze Philippe (French of Lebanese
origin) who asked if my family was fine.
I mentioned this to my evening First Year Contracts class as a way to
help temper the anti-Arab animosity I was fully expecting to arise. Having been an alien living in France
for 17 years I understood how animosity could rise towards foreigners and
towards those citizens who looked Arab.
I did not want to be a party to that in my country.
Shortly after 9/11, as part of an effort of a Task
Force of the Dispute Resolution Section of the Texas Bar Association, I
attempted to help what we called second-level victims of 9/11 – persons in the
Dallas-Fort Worth area such as in the airline industry, the military, and the
Muslim community who might have become victims as a consequence of 9/11. I contacted the imam at the local Islamic
Center of Tarrant County to see if we could help. On advice of my Dispute Resolution Section
colleagues, I checked with the US District Attorney to make sure there was no
concern about working with the Center.
The US DA was noncommittal. The
Task Force slowed me down and discouraged these efforts at outreach. I heard and felt their fear at being
associated with the center and the negative effect on the image of the Dispute
Resolution section that might arise if someone at the center was found to be a
“suspicious character.”
My next idea was to have a badge made that said “Leave
my buddy alone”. This badge resembled
what I had seen worn in France
(“Touche pas a mon pote”) by those who resisted anti-foreigner backlash
there. Over the next months, sometimes I
wore it and sometimes I was scared to wear it and kept it in my pocket.
The US Patriot Act disturbed me greatly as did
learning that the American Civil Liberties Union had told its state leaders to
not say anything in that stultifying environment where persons were afraid of
being perceived as unpatriotic.
In this period just after 9/11, stories came out of
Arab and Asian families walking through snow to Canada seeking to escape life in
the States in the weeks after 9/11. I
sensed that in the silence there were bad things going on in the name of
protecting Americans but I had no knowledge of them. I was saddened by this treatment of foreigners.
As a matter of international law, the attack on Afghanistan seemed to me within the legitimate
decisions by the United
States for reasons that I am sure we can
argue about but which I only discuss to help you understand how I get here
today.
As a matter of international law, especially after
talking with a South Korean colleague explaining the nervousness there towards
anything – ANYTHING – that happens across the border in North Korea, provided
there was credible evidence of a threat from Saddam Hussein, I could be
persuaded at the start that the War in Iraq was legitimate self-defense by the
United States – but I had more qualms with that. The Downing Street Memo confirmed those
qualms were not ill advised as have many other items of which I am sure you are
also aware. We can argue about this too
but I only discuss this to help you understand how I get here today.
My route to you accelerated in a cold Ohio field where
I was surrounded by union members and others on January 21, 2004 when I stood
outside of a presidential visit to Owens Community College with a handmade sign
on which I wrote the great Argentine human rights activist Jacobo Timerman’s
great words:
– No prisoners without names, No cells without numbers
–
My intuition told me that in the silence we were doing
something wrong with those captured in the United States and in the war. Of course, the Abu Ghraib photos came out
later that spring to the horror of us all.
Something seriously wrong was happening and I felt I did not want to sit
by and do nothing. I remembered
Srebrenica, the Japanese internments, Chile,
Argentina, my late godfather
in Liberia
and other horrible places where bad things had been done to prisoners kept
without names in cells without numbers.
As the Abu Ghraib scandal erupted, I watched the
hearings held in the Spring 2004. I
wrote letters to the editors - a few were published. I wrote to my Senators and Congresspersons
but only received back form letters full of platitudes.
I went to the 99th ASIL annual meeting and
asked the questions I thought should be asked of the speakers who had
orchestrated the legal aspects of the torture policy. I was dissatisfied with their uncomfortable
or smug silence. I told them that they
should be prosecuted. I also attempted
to counter the torture rationalization efforts that went on in other sessions.
At that 99th meeting, I asked Supreme Court
Justice Ruth Bader Ginsburg why there were no prosecutions of high level
civilian authority and military brass for violations of international criminal
law or international humanitarian law in the United States domestic courts. She said that the prosecutor had the criminal
code. It was a true answer, but still
dissatisfying.
Next, I went to a seminar at Duke Law School in early April 2005 and
interacted with military persons as well as some of the architects or advisors
on the torture policy.
I was disturbed that low-level soldiers or
intelligence persons were being brought up on court-martial or equivalent
charges while their superiors in the military general officers or high-level
civilian authority faced nothing. One of
my students who was to become a future JAG crystallized why this was the state
of affairs mentioning a military adage:
Shit Rolls Down Hill. Military
persons I have met since then are well aware of that adage and I have learned
another one “Different spanks for different ranks.”
I well remember a discussion at Duke by eminent law
professors about the President’s powers to violate international law and the
baffled look I received from those same scholars when I asked “Doesn’t that
engage United States
state responsibility when the President violates international law?” It seemed that the fact the United States
might incur liability on the international plane was considered irrelevant to
this discussion.
I told Congressperson Jane Harman that it strained
credulity to think that in the closed door hearings and briefings prior to the
scandal coming out the congressional committees were not made aware of the
things that had happened at Abu Ghraib.
She denied knowledge of Abu Ghraib.
The domestic eavesdropping revelations (a program of which she has now
admitted knowledge) recently make me doubt that assertion by her and, by extension,
the Congress.
Most recently, the Constitutional discussion on the
President’s war powers has sometimes been presented as giving some ultimate
authority to the President, unitary executive theory for example. However, the idea that those acts ordered by
the President might be violations of international law that engaged United States
responsibility seemed irrelevant to those same persons propounding that
presidential authority. For example,
after presenting the unitary executive theory with ultimate Presidential
accountability for all Executive decisions (particularly to torture, etc) at a
presentation at University of Toledo Law School this Febrruary, I gently
pointed out to Professor Scott Silliman
the fact that Presidential acts/orders that may be constitutionally
permissible but violate international law engage the responsibility of the
United States. The only response,
curiously, was to invoke the 82nd airborne and the “Hague Invasion
Act” whereby the U.S.
military would protect the President if he was hailed before the International
Criminal Court for alleged war crimes.
All this seems extremely bizarre – a United States
President being considered above international law. With the McCain Amendment, its narrowing
amendments and the Presidential signing statement debacle, it becomes clearer
to me that the Legislature is also unable/unwilling to cope consistent with
international law obligations. And, as
the Judiciary grapples with difficult issues, its traditional deference to the
acts of the political branches coupled with the current tendency to view
ignorance of foreign and international law as a virtue in persons chosen to sit
on even our highest courts (I noted the hearings of Chief Justice John Roberts
and Justice Samuel Alito) forebodes problematic decisions for me. I worry that judges feel constrained to
invoke political question doctrines and state secrets doctrines as a matter of
internal law without sufficient understanding of the international law
implications of their approach to their jurisdiction to adjudicate.
I see members of the Executive, the Legislative, and
the Judiciary of our federal government and I am dismayed at their lack of
concern or knowledge about basic bedrock principles of international law.
It appears to me that all three branches are so
intensely focused on separation of powers within our Constitutional structure
and maybe legal craftiness in arguing the American version of foreign relations
law. All three branches show an
astounding lack of knowledge of international law.
It seems that we are in some kind of post-modernist
dreamland where every text has an indeterminate meaning, that everything can be
said to be a new paradigm, and that crafty lawyering is all that matters.
Annex III A message from a non-member supporter
From: James Mick
[mailto:jmick@woh.rr.com]
Sent: Wed 3/8/2006 8:10 PM
To: Davis, Ben
Subject: Letter of support for ASIL Resolution
Associate Professor Benjamin Davis,
University of Toledo
Dear Professor Davis,
We would
like to offer our support for the ASIL Resolution that is being
proposed. As we are both citizens of the United States of America and have
retired from working for Governmental Agencies, both Michael J. Rauh and myself
recognize the importance of proper and humane treatment of individuals in
custody, detainment or imprisonment for their actions or crimes.
Having two sons
in the United States Military, we both want to believe that if they were
captives of our enemies, that they would be treated in a fair, humane, and just
manner. This would hopefully be in accordance and agreement of our
International Treaties as in the past. Anyone in the custody of the United States of America,
no matter what the purpose of their incarceration, should be treated as
just, fair, humane and prudent to their accused crime.
Respectfully Submitted,
James D. Mick email: jmick@woh.rr.com
Michael J. Rauh email: heafod@yahoo.com