Whitney R. Harris World Law Institute Celebrating Our 10Th Year

Whitney R. Harris World Law Institute Celebrating Our 10th Year

Feature: The Proposed International Convention on the Prevention and Punishment of Crimes Against Humanity Whitney R. Harris World Law Institute

International Council

The work of the Harris Institute at Professor Jung-Gun Kim Former Dean, Yonsei University Washington University School of Law is College of Law and Graduate School guided by an active International Council, of Law and Intellectual Property 1 dean’S LETTER consisting of leading scholars, practitioners, Anthony Lewis Kent D. Syverud and jurists from around the world. Former syndicated columnist, New York Times Elizabeth Andersen The Honorable Professor Herbert H.P. Ma 2 CELEBRATING OUR FIRST 10 YEARS Executive Director & Executive Vice President, Former Grand Justice, Taiwan Judicial Yuan Leila Nadya Sadat American Society of International Law Professor Susan F. Martin The Honorable John B. Anderson Donald G. Herzberg Associate Professor of 6 CASH NICKERSON: President & CEO, World Federalist Association International Migration, Georgetown University negotIATING A BETTER WORLD The Honorable Louise Arbour Steven Cash Nickerson Former U.N. High Commissioner for Human Rights EVP, CFO, and General Counsel, 8 the CRIMES AGAINST PDS Technical Services, Inc. The Honorable Jorge Arrate humanITY INITIATIVE Former Cabinet Minister, Chile His Excellency, Judge Hisashi Owada Judge, International Court of Justice Professor M. Cherif Bassiouni 12 rememberING President Emeritus, International Human Rights The Right Honorable Sir Geoffrey Palmer whITNEY R. HARRIS Law Institute, DePaul University College of Law Former Prime Minister, New Zealand Professor George A. Bermann Professor Asha Ramgobin 17 JUSTICE FOR EAST TIMOR Jean Monnet Professor of EU Law, Walter Executive Director, Human Rights Development and BEYOND Gelhorn Professor of Law, Columbia University Initiative, South Africa The Honorable Professor Rudolf Bernhardt The Honorable Patricia M. Wald 18 bassIOUNI RECEIVES Former President, European Court of Human Rights Former Judge, U.N. International Criminal Tribunal for the Former Yugoslavia, and former Chief Judge, world PEACE THROUGH Professor Raj Bhala U.S. Court of Appeals, D.C. Circuit law AWARD Raymond F. Rice Distinguished Professor of Law, University of Kansas Professor Ruth Wedgwood Edward B. Burling Professor of International Law 20 notes FROM THE FIELD Professor Paul P. Craig and Diplomacy, Johns Hopkins University Professor of English Law, Oxford University Professor Joseph H.H. Weiler 26 harrIS INSTITUTE EVENTS Professor Francis Mading Deng Jean Monnet Professor of Law, Chair, and Faculty Research Professor of International Politics, Law Director of the Hauser Global Law School Program, and Society, Johns Hopkins University School of 28 ambassadors PROGRAM New York University School of Law Advanced International Studies offers GLOBAL, REAL-WORLD PERSPECTIVES David W. Detjen Partner, Alston & Bird LLP *** 30 four FACULTY MEMBERS The Honorable Richard J. Goldstone Thomas M. Franck awarded FULBRIGHTS Former Justice, Constitutional Court of South Africa, 1931–2009 and former Chief Prosecutor, International Criminal Tribunals for the Former Yugoslavia and Rwanda Whitney R. Harris 32 leadING INTERNATIONAL 1912–2010 Ambassador AÍda Ivone GonzÁlez MartÍnez sCHOLARS PRESENT Former Chairperson, U.N. Committee for the CUTTING-EDGE RESEARCH Elimination of Discrimination Against Women

35 INTERNATIONAL OPPORTUNITIES abound FOR STUDENTS Whitney R. Harris World Law Institute magazine In Memoriam: Professor Thomas M. Franck Professor Thomas M. Franck, a prominent expert in Leila Nadya Sadat, Henry H. Oberschelp Professor international law and a member of the Harris Institute’s 40 amerICAN TRUST LAW of Law and Harris Institute Director International Council, died on May 27, 2009. He was 77. IN A CHINESE MIRROR Shelly Ford, Harris Institute Frances H. Foster Professor Franck was the Administrative Coordinator Murry & Ida Becker Professor Ann Nicholson, Managing Editor of Law Emeritus at New York 42 JUDICIAL REVIEW IN JAPAN University, where he taught david S. Law Ryan Rhea, Editor from 1957 until his retirement in 2002. Founding director of Erin Kawell, Designer/Art Director 44 the ROLE OF FOREIGN the Center for International Studies at NYU, he was the authorITY IN CONSTITUTIONAL Scott Hueting, Designer/Production Artist author of numerous books INTERPRETATION Mary Butkus, Bill Mathews, Andres Alonso, and many scholarly articles Melissa A. Waters Afbeelding Photography, Whitney Harris Collection on international law. and WUSTL Photographic Services, Photography A refugee from Nazi Germany, Professor Franck dedi- 46 afrICA AND THE REVIEW Direct Communications to: cated his career to the cause of international human CONFERENCE FOR THE Shelly Ford rights. He served as a legal adviser to many foreign INTERNATIONAL CRIMINAL COURT Harris Institute Administrative Coordinator governments and worked on the constitutions for Leila Nadya Sadat Washington University School of Law several African nations: Tanganyika and Zanzibar, Campus Box 1120 which became Tanzania; Rhodesia, now Zimbabwe; One Brookings Drive and Sierra Leone. Additionally, he was an ad hoc judge 48 seleCTED INTERNATIONAL St. Louis, MO 63130-4899 and advocate before the International Court of Justice. and COMPARATIVE (314) 935-7988 From 1995 to 2007, he served as counsel to Bosnia law SCHOLARSHIP [email protected] in the case against Serbia concerning the massacre of about 8,000 Bosnians in Srebrenica. Dean’s letter

n this global age of legal education McDonnell International Scholars Academy, which and law practice, it is reassuring to know is devoted to developing future global leaders. that 10 years ago Washington University The Harris Institute and the Crimes Against School of Law was at the vanguard of Humanity Initiative are both headed by Professor schools creating centers on international Leila Nadya Sadat, whose tireless commitment to legal issues. This magazine celebrates the the project has been essential to its ultimate success. firstI decade of our Whitney R. Harris World Law Indeed, the Harris Institute owes its success today Institute, which today is among the top interna- to not only our generous sponsors, including Whit- tional and comparative law centers in the world. ney and Anna Harris and Cash Nickerson, but also Named after former Nuremberg prosecu- to the visionaries who established it 10 years ago— tor Whitney R. Harris, the Harris Institute has Professor Stephen Legomsky, the founding director; expanded from sponsoring cutting-edge conferences Chancellor Mark Wrighton; and Joel Seligman, my and scholarship to spearheading one of predecessor as dean. I am pleased that under the the most ambitious projects ever under- tenure of subsequent directors John Haley, and now taken by a law school in the field of Leila Sadat, the Harris Institute has continued to international law, the Crimes Against grow and thrive, conducting substantive research Humanity Initiative. As you will read and offering programs for students, a world-class in this magazine, this ground-breaking speaker series, and an ambassador’s program bring- initiative has drawn upon the expertise ing foreign policy perspectives to the law school. of some of the world’s most renowned While we miss Whitney Harris who passed away in international legal practitioners, judges, April, we remain forever inspired by his unflagging and scholars to create a proposed con- fight for international justice and vision of a world vention for the condemnation and pre- united under the rule of law. vention of such crimes. As we celebrate the Harris Institute’s 10th year, I It is fitting that the Harris Institute hope you will enjoy reading about its many exciting is based at our law school, which has programs and projects. I would also like to take this an extraordinary array of international assets and time to congratulate its faculty and staff and to wish programs, including talented faculty, an increas- it well in the coming years. ingly global alumni base, and both students from abroad and traditional law students interested in transnational legal issues. The Harris Institute’s Kent Syverud work dovetails with other exciting initiatives, such Dean of the Law School, as our Transnational Law Program, Executive LLM Ethan A.H. Shepley University Professor, Program, and Summer Institute for Global Justice. and Associate Vice Chancellor of It also builds upon other Washington University Washington, D.C., Programs partnerships and outreach efforts, including the

Whitney R. Harris World Law Institute Magazine F A L L 2 0 1 0 | 1 director’s letter

Anna Harris, Whitney R. Harris, and Chancellor Mark Wrighton at the Harris Institute naming 2000–2010: ceremony in 2002 Celebrating

His Excellency Hisashi Owada, International Court of Justice Our First Ten Years

Frederick O. Hanser, JD ’66, t is with great pleasure St. Louis Cardinals, right, that I welcome you to this with Yoshihiko Miyauchi, Kobe ORIX Bluewaves special 10th Anniversary Commemorative Edition of the Harris Institute Magazine. As I reflect Iback on the tremendous accom- plishments of the Harris Institute’s first decade, it seems appropriate From left: H.R.H. Prince to recognize and honor all of those Zeid Ra’ad Al-Hussein of Jordan, with special who worked together to establish guest Mrs. Treiman, what has now become one of the Leila Nadya Sadat Whitney R. Harris, and Henry H. Oberschelp Professor premier centers in the United States of Law and Director, Whitney R. Leila Nadya Sadat for research in and the teaching of Harris World Law Institute international and comparative law. With a focus on developing innovative global solutions to real-life problems, the Harris Institute has, during the past 10 years, sponsored more than 75 speakers; held or co-sponsored more than 20 major international conferences in the United States and abroad; assisted with developing and expanding Opening session of International Climate the law school’s international curriculum; sponsored a debate Change Conference orga- series on pressing issues in international law and policy; nized by Professor Maxine hosted our first “Ambassador-in-Residence” who had a two- Lipeles, seated, left year appointment; began a series of public international law and theory (PILT) roundtables for international law scholars; held meetings for Latin American law scholars and other important comparative law projects; developed programs to support student study and work opportunities abroad, particularly the Dagen-Legomsky Fellowships and the ICC Legal Tools project; and enriched the life of the law school and Washington University more generally.

2 | Whitney R. Harris World Law Institute Magazine F A L L 2 0 1 0 By Leila Nadya Sadat Hari Osofsky, Washington and Lee University (now University of Minnesota)

Today, the Whitney R. Harris World Law Institute, as it is now called, is building upon this strong foundation. Participants at the We have continued our very successful programs and have Crimes Against Humanity Initiative’s broadened and deepened the scope of our activities. In 2008, Experts’ Meeting in we launched the Crimes Against Humanity Initiative, possi- The Hague bly the most significant international rule of law effort undertaken by an academic institution since the Harvard Research Project was published in 1935. The initiative was undertaken to study the need for, and to elaborate, an Inter- national Convention for the Prevention and Punishment of Crimes Against Humanity. The Convention was developed during a two-year period by the end of which time more than 250 leading scholars and practitioners of international law had been involved in expert meetings and technical advisory sessions convened by the Harris Institute in the United States and abroad. The resulting proposed Conven- tion, in both English and French, will be presented to States in fall 2010 for their consideration. The Harris Institute could not have achieved so much, so quickly, without the contributions of many individuals, especially our founding director, Stephen Legomsky, the John S. Lehmann University Professor, and his successor, John Haley, the

Nuremberg prosecutors, from left, Henry King, Ben Ferencz, and Whitney R. Harris

Participants at the 2008 rededication celebration where the institute was renamed the Whitney R. Harris World Law Institute

Whitney R. Harris World Law Institute Magazine F A L L 2 0 1 0 | 3 director’s letter

Patricia Viseur Sellers, formerly Office of the Prosecutor, International Criminal Tribunal for the Former Yugoslavia

William R. Orthwein Distinguished Professor of Law Emeritus. Kathleen Newland, I am also deeply grateful to Whitney and Anna Harris for Migration Policy Institute their generous financial and moral support and to Steven Cash Nickerson for his gifts to the Institute and his extraordinary contributions to the Crimes Against Humanity Initiative. You can read more about these wonderful individuals beginning on pages 12 and 6, respectively, of this magazine. I would be remiss not to thank our current dean, Kent Syverud, for his vision and support, my colleagues on the Faculty Advisory Board, and our International Council members for their time Delegation of Turkish and contributions. law deans and professors Finally, we are grateful for the work of our Cash Nickerson Fellows on the Crimes Against Humanity Initiative (see page 38) including that of B. Don Taylor III, outgoing Harris Institute executive director and Cash Nickerson Fellow, and to our outgoing assistant director, Linda McClain, for her dedication to the Harris Institute and its work over the past decade. This year the Harris Institute welcomes Shelly Ford as

(below) Participants at the 2000 opening ceremony for the new Institute for Global Legal Studies in conjunction with the conference, The United Nations and the Protection of Human Rights

4 | Whitney R. Harris World Law Institute Magazine F A L L 2 0 1 0 William Burke-White, University of Pennsylvania, and Valerie Oosterveld, University of Western Ontario

our new administrative coordinator and Yordanka Nedyalkova as our new Cash Nickerson Fellow and associate director. In Nigerian attorney the coming year, we will host a fascinating debate on the legal Hauwa Ibrahim and policy issues surrounding the use of unmanned drones in armed conflict, continue to move the Crimes Against Human- ity Initiative forward from the research and development phase to implementation, and host numerous speakers on public and private international law topics. Yet as we honor our past achievements and look forward to the future, our celebration is bittersweet. Last year, Thomas Franck, a founding member of the Institute’s International The Hon. Christine Council and one of the world’s great international law schol- Van den Wyngaert, ars, passed away. This year, former Nuremberg prosecutor International Criminal Whitney R. Harris, himself, after whom the Harris Institute Court, and the Hon. Stefan Trechsel, is named, left this world for the next on April 22, 2010. International Criminal We remember Whitney and his work in this magazine as we Tribunal for the continue our efforts to promote his vision of peace, justice, Former Yugoslavia and the rule of law for the entire world. ||||

Francis Deng, Thomas Franck, former Sudanese New York University Ambassador, left, with then Dean Joel Seligman

The Hon. Patricia Larry Johnson, U.N. Assistant Wald, Interna- Secretary-General for Legal Affairs tional Criminal Tribunal for the Former Yugoslavia

Whitney R. Harris World Law Institute Magazine F A L L 2 0 1 0 | 5 Negotiating a By Betsy Rogers Better World A Visionary Career as Lawyer and Philanthropist

In the future when defenseless populations can live free from fear because corrupt regimes and rogue militias can no longer act with impunity, this new freedom will testify not only to the visionary commitment of legal scholars and diplomats, but also to the generosity of Steven Cash Nickerson, JD ’85, MBA ’93.

6 | Whitney R. Harris World Law Institute Magazine F A L L 2 0 1 0 s a corporate lawyer, alumnus Steven Sadat initially convened a steering committee in spring Cash Nickerson has built a career as an irre- 2008 with South African Judge Richard Goldstone; war crimes pressible entrepreneur, working in mergers expert M. Cherif Bassiouni; former U.N. Under-Secretary for and acquisitions, creating and growing his Legal Affairs Hans Corell; Argentine human rights lawyer Juan own companies, and helping clients succeed Méndez; ICC judge, the Hon. Christine Van den Wyngaert; in new enterprises. and Canadian lawyer William Schabas, director of the Irish AThis same zest for creating new ventures has shaped his Centre for Human Rights. In April 2009, the Steering Commit- work as a philanthropist, building an organization to raise tee along with a distinguished group of international law experts funds for prostate cancer research at Washington University’s from around the world met at the law school to begin drafting a Siteman Cancer Center and, on an even more far-reaching Specialized Convention on Crimes Against Humanity. Bassiouni level, financing a worldwide initiative to write and implement then circulated the first draft. The group convened again at a treaty banning crimes against humanity. The Hague in June 2009, and in March 2010, at the Brookings True to his entrepreneurial spirit, Nickerson’s career path Institution in Washington, D.C. has taken many unexpected turns. When he completed law The committee school in 1985, he took a position as in-house lawyer with has written, circu- Union Pacific Railroad. In 1989, he joined the Chicago law lated, and debated firm of Jenner & Block LLP, making partner just three and a the proposed treaty half years later. He then became president and general counsel —it now goes to of a large human resources consulting firm; founded his own United Nations HR enterprise, Workforce Strategies, in San Francisco; and member countries for since 2003, has been a principal and chief financial officer of debate. Nickerson PDS Tech Inc., one of the largest U.S. aerospace and informa- devoutly hopes for its tion technology staffing firms. With annual revenues of $360 success. “I think we million, a 750,000-engineer database, and a top-secret security have the right people clearance, PDS Tech provides project support to companies behind it,” he says, fulfilling defense and aerospace contracts. “and there’s a win- Chancellor Mark S. Wrighton, right, presents a He especially enjoys human resources work. “There’s such dow that’s somewhat philanthropy award to Cash Nickerson. a human element to it,” he says. “It’s very personal, very emo- open right now.” tional. You’re very involved in people’s lives.” He finds pro- International support is building for the International Criminal found satisfaction in helping people solve problems. “When Court, members of the U.S. Congress are discussing criminal people come to you, something hurts, and they’re kind of stuck. sanctions for crimes against humanity, and international tribunals I really enjoy helping people get unstuck, helping them find are producing a growing body of jurisprudence. some solution they haven’t thought of.” “Critical to getting it adopted,” he contends, “is showing An early supporter of global legal studies at the law school, how what we currently have isn’t working. After the Holocaust, Nickerson was the one to whom Leila Nadya Sadat, the Henry we said, ‘Never again.’ But 100 million people have died since H. Oberschelp Professor of Law and director of the Whitney we said ‘never again.’ We have to establish dissatisfaction with R. Harris World Law Institute, turned for funding assistance. the status quo.” Sadat was in the early stages of a bold initiative addressing The opportunity to work with the committee’s scholars and crimes against humanity. Nickerson was immediately interested. jurists has thrilled Nickerson. “The level of intellect, experience, “I understood the gap in the law,” he says. “An agreed-upon and passion is unbelievable,” he says. And the law school’s central standard of what you can and can’t do to your own people role is also thrilling for him. “The Harris Institute has an incred- doesn’t exist. There are laws against genocide, but some atroci- ible level of recognition and respect in the international commu- ties aren’t defined as genocide. nity,” he notes. “This is a powerful thing to be coming out of “I was really struck by the opportunity to do something St. Louis, Missouri.” that the world needs,” Nickerson continues. “Washington Perhaps the most poignant moment for Nickerson took place University has such tremendous faculty. I thought helping at this year’s Brookings Institution meeting, where he was given Washington University become more engaged in these efforts a philanthropy award. Afterward, a jurist from Darfur took would be great for the school and great for the world. But it his hands in hers and with tears in her eyes told him: “You are takes funds to run these kinds of activities.” That, he realized, is birthing a great-grandchild. This will change the world.” where he could help. Humanity United and the United States As recognition goes, says Nickerson simply, “that’s enough. Institute of Peace are also supporting the initiative. I will never forget that moment.” ||||

Whitney R. Harris World Law Institute Magazine F A L L 2 0 1 0 | 7 Preamble to the Proposed International Convention on the Prevention and Crimes Against Humanity Initiative Punishment of Crimes Against Humanity “The missing treaty,” “The States Parties to the present Convention, is how Leila Nadya Conscious that all people are united by common bonds and share certain common values, Sadat describes it. Affirming their belief in the need to effectively protect human life and human dignity, Reaffirming their commitment to the purposes and principles of the United Nations, out- One that would finally lined in its Charter, and to the universal human rights norms reflected in the Universal allow all states to Declaration of Human Rights and other relevant international instruments, prosecute or extradite Mindful of the millions of people, particularly women and children, who over the course of human history have been subjected to extermination, persecution, crimes of sexual individual perpetra- violence, and other atrocities that have shocked the conscience of humanity, tors of crimes against Emphasizing their commitment to spare the world community and their respective societies the recurrence of atrocities, by preventing the commission of crimes against humanity, humanity—widespread and prosecuting and punishing the perpetrators of such crimes, or systematic murder, Determined to put an end to impunity for the perpetrators of crimes against humanity by ensuring their fair and effective prosecution and punishment at the national and enslavement, torture, international levels, rape, or imprisonment Recognizing that fair and effective prosecution and punishment of the perpetrators of of civilian populations. crimes against humanity necessitates good faith and effective international cooperation, Recognizing that effective international cooperation is dependent upon the capacity of indi- A law that could unite vidual States Parties to fulfill their international obligations, and that ensuring the capacity governments world- of each State Party to fulfill its obligations to prevent and punish crimes against humanity is in the interest of all States Parties, wide in bringing to Recalling that it is the duty of every State to exercise its criminal jurisdiction over those justice fugitives who responsible for international crimes, including crimes against humanity, have perpetrated or Recalling the contributions made by the statutes and jurisprudence of international, national, and other tribunals established pursuant to an international legal instrument, ordered the commis- to the affirmation and development of the prevention and punishment of crimes sion of mass atrocities. against humanity, Recalling that crimes against humanity constitute crimes under international law, which may give rise to the responsibility of States for internationally wrongful acts, Recalling Article 7 and other relevant provisions of the Rome Statute of the Interna- tional Criminal Court, Declaring that in cases not covered by the present Convention or by other international agreements, the human person remains under the protection and authority of the principles of international law derived from established customs, from the laws of humanity, and from the dictates of the public conscience, and continues to enjoy the fundamental rights that are recognized by international law,

From left: Evelyn Ankumah, Leila Nadya Sadat, Have agreed as follows … Africa Legal Aid; Elizabeth Washington University Borgwardt, Washington Uni- versity; and Elies Van Sliedregt, Vrije Universiteit Amsterdam

8 | Whitney R. Harris World Law Institute Magazine F A L L 2 0 1 0 By Rick Skwiot Crimes Against Humanity Initiative

NTIL NOW, NO SUCH tional and domestic experts’ meetings, awareness campaign to underscore international conven- the Proposed International Convention on the need for such a treaty. Ultimately, tion has existed. But the Prevention and Punishment of Crimes the goal is to have the convention thanks to the leadership Against Humanity has been drafted in brought to the United Nations by of Leila Nadya Sadat, English and translated into French. sponsoring states, where it can be the Henry H. Ober- Cambridge University Press will publish reviewed and serve as the basis for Uschelp Professor of Law and director of an edited volume, Forging a Convention future diplomatic negotiations. the Whitney R. Harris World Law Insti- for Crimes Against Humanity, encom- tute, along with the tireless efforts of passing the papers commissioned by Harkening Back to renowned international legal scholars and the project, a full text of the treaty, and Nuremberg judges, the treaty is becoming a reality. an accompanying commentary. The The culmination of a nearly three- initiative’s Steering Committee, which THE CRIMES AGAINST HUMANITY year project known as the Crimes Against recently finalized the proposed conven- INITIATIVE has its roots in Nuremberg, Humanity Initiative, and several interna- tion, is preparing to launch a global the site of the now famous, post-World

(above) Panel discussion at the Crimes Against Humanity Initiative’s Capstone Conference in Washington, D.C. (left) Crimes Against Humanity Initiative Steering Committee members

Mary Werntz, ICRC Juan Méndez, International Patricia Viseur Sellers, Payam Akhavan, William Schabas, Irish Centre Center for Transitional Justice formerly International McGill University for Human Rights Criminal Tribunal for the Former Yugoslavia

Whitney R. Harris World Law Institute Magazine F A L L 2 0 1 0 | 9 Carsten Stahn, Grotius Centre of International M. Cherif Bassiouni, The Hon. Daniel Nsereko, Clint Williamson, U.S. Legal Studies; the Hon. Richard Goldstone, DePaul University International Criminal Court Ambassador-at-Large for South African Constitutional Court; and the Hon. War Crimes Issues Hans-Peter Kaul, International Criminal Court

War II International Military Tribunal The meeting was the capstone confer- genocide has taken place—as opposed that tried major German war criminals. ence for the initiative, which is being to focusing upon the victimization Although groundbreaking at the time, funded by a gift from alumnus Steven resulting from mass atrocities commit- that effort did not grow into an inter- Cash Nickerson, JD ’85, MBA ’93, as ted against a civilian population,” she national convention on crimes against well as by grants from Humanity United explains. “The Crimes Against Human- humanity as some, such as Nuremberg and the United States Institute of Peace. ity Initiative refocuses on the victims of trial counsel Whitney R. Harris, might “I would like to thank the members atrocity crimes and moves away from have wanted. of the Crimes Against Humanity Initia- legal characterizations that are of little “Can you imagine the U.S.S.R. tive Steering Committee, chaired by benefit either in preventing the crimes signing on to a crimes against human- Professor Leila Sadat, for the selfless or punishing the perpetrators.” ity treaty in 1945?” asks Sadat. “That work they have done to advance the This was true, for example, with wasn’t going to happen. The Soviets cause of world peace, and for their con- respect to the slaughter of millions of voted against the Universal Declara- tribution to this effort,” Harris noted Cambodians by the Khmer Rouge regime tion of Human Rights in 1948, them- in his remarks. “Here, today, you are under Pol Pot, which probably did not selves responsible for the commission considering [a] pillar of the Nuremberg fall within the definition of genocide of widespread and systematic violations legacy—crimes against humanity. Civi- in the Genocide Convention. Indeed, of human rights under Stalin.” And it lization can no longer tolerate the com- although one recent study estimates that wasn’t just the Soviets, Sadat adds. Other mission of [these] crimes.” there have been as many as one million countries, including the United States, perpetrators of crimes against humanity were content with the narrow definition Closing the Gap in in the past half century, there have been of genocide in the Genocide Convention fewer than 1,000 prosecutions. International Law and had no appetite for robust enforce- Additionally, the proposed treaty ment of the Nuremberg principles. WHILE THE GENEVA CONVENTIONS of would provide a much needed enforce- But Harris, who died on April 22, 1949 provide rules for the conduct of ment vehicle that states could use to 2010, at age 97 and who had endowed armed conflict, and the 1948 Genocide cooperate with each other in preventing his namesake institute in 2001, saw Convention addresses that particular and punishing crimes against human- a need for the proposed convention. crime, no overarching treaty on crimes ity through extradition proceedings or Indeed, Harris’s final, taped remarks against humanity currently exists, prosecutions in their own national courts. supporting the Crimes Against Human- Sadat notes. “Often atrocity crimes are committed ity Initiative were delivered at the March Sadat stresses that the Genocide Con- along with financial crimes,” Sadat says. 2010 conference, Forging a Conven- vention “is generally of limited utility” “The individuals committing these crimes tion for Crimes Against Humanity. He in addressing most cases of mass atroc- have enriched themselves and are able to addressed conference participants at the ity. “Often, as in the case of the Former flee the countries in which the crimes were Brookings Institution in Washington, Yugoslavia, the public debate centers committed and live quite comfortably— D.C., just a month before his death. on the legal technicalities of whether and with impunity—in their chosen

10 | Whitney R. Harris World Law Institute M Fagazine A L L 2 0 1 0 F A L L 2 0 1 0 Steering Committee Adopts Text of Proposed Convention

THE CRIMES AGAINST HUMANITY Ini- including murder, extermination, tiative Steering Committee has been enslavement, deportation, or forcible guiding the project from its inception. transfer of population; imprisonment, Chaired by Leila Nadya Sadat, the torture, rape, sexual slavery, enforced committee is composed of M. Cherif prostitution, forced pregnancy, and Bassiouni, the Distinguished Research enforced sterilization; persecution Whitney R. Harris, left, and Hans Professor of Law at DePaul Univer- against groups on political, racial, Corell, former U.N. Under-Secretary- sity College of Law and founder and ethnic, cultural, religious, or gender General for Legal Affairs president emeritus of the International grounds; enforced disappearance; Human Rights Law Institute; Hans and apartheid; Corell, former Under-Secretary-General • Provides for individual criminal respon- for Legal Affairs and legal counsel of the sibility for crimes against humanity, United Nations; Richard J. Goldstone, potentially including heads of state former chief prosecutor of the Interna- country of refuge. The Crimes Against and elected or appointed officials, and tional Criminal Tribunals for the Former Humanity Convention obligates states includes the possibility of liability for Yugoslavia and for Rwanda; Juan E. to either try these criminals or send legal entities, as well; them elsewhere for prosecution.” Méndez, visiting professor, Washington College of Law, American University, • Institutionalizes state cooperation in Sadat notes that the Crimes Against Washington, D.C.; William A. Schabas, preventing, investigating, prosecuting, Humanity Initiative is “one of the director of the Irish Centre for Human and punishing crimes against human- most sophisticated and challenging Rights, National University of Ireland, ity, including extradition proceedings, endeavors in which any law school Galway; and Christine Van den transfer of criminal proceedings, and has ever engaged. The convention Wyngaert, judge for the International enforcement of the effects of States is designed to be an influential and Criminal Court. Parties’ penal judgments; important contribution to interna- In August 2010, the Steering • Obligates states to enact legislation tional law, even more so than the Committee approved the text of the to give effect to the convention; and 1935 Harvard law research project to proposed convention. As finalized, draft international treaties. We hope the proposed convention: • Establishes a mechanism for United Nations administration, assistance, that states will take up the challenge of • Defines “crimes against humanity” and coordination. using this instrument to negotiate and as acts committed as part of a wide- adopt an International Convention spread or systematic attack directed For more information on the Crimes on the Prevention and Punishment against any civilian population, pursu- Against Humanity Initiative, visit: law. of Crimes Against Humanity.” |||| ant to a State or organizational policy, wustl.edu/crimesagainsthumanity. ||||

A session of the Crimes Against Humanity Initiative’s St. Louis Participants in the Crimes Against Humanity Participants in the Crimes Against Humanity Experts’ Meeting Initiative’s St. Louis Drafting Session Initiative’s St. Louis Experts’ Meeting

Whitney R.W Hhitneyarris W Rorld. Harris Law W Instituteorld Law M Instituteagazine FF A A L L L L 2 2 0 0 1 1 0 0 | 1111 Whitney R. Harris: By Leila Nadya Sadat A Personal Tribute

r. Whitney R. who had led an extraordinary life, a great Nazi war criminals, and moved with the Harris died on friend, and a wonderful benefactor of first contingent of prosecutors to Nurem- April 22, 2010, the Institute that bears his name and berg in 1945. He was assigned to prosecute at the age of 97, that I have the honor to direct. I will Ernst Kaltenbrunner, chief of the Reich at his home miss him very much. Main Security Office and two organiza- in St. Louis, Whitney’s role at Nuremberg is well- tional defendants, the SD and the Gestapo. Missouri.M Whitney served as trial counsel known. He was a line officer in the U.S. He obtained convictions against all three at the trial of the major German war Navy during World War II. Toward the defendants and was awarded the Legion criminals before the International Mili- end of the war, the Navy assigned him of Merit for his efforts. tary Tribunal at Nuremberg from August to the Office of Strategic Services, which Whitney’s experiences at Nuremberg as a 1945 to the conclusion of the trial on sent him to Europe to investigate Nazi young lawyer made an indelible impression October 1, 1946. He was the last surviv- war crimes. He joined the staff of Robert upon him, and he quickly emerged as one ing prosecutor on Justice Jackson’s team. H. Jackson, the Chief Prosecutor for the of the major spokesmen for the Nurem- He was also an extraordinary individual United States for the trial of the major berg legacy. He wrote extensively about

Tribute Excerpts in Honor of Whitney R. Harris “… Just before Whitney’s 90th birthday, then dean Tributes to Whitney R. Harris poured in from around the globe with the news of his of the law school, Joel passing. In addition to his contributions to the rule of law, many took a moment to share Seligman, asked if I would personal reflections. For additional tributes, visit law.wustl.edu/news/inmemoriam.aspx. be willing to succeed Steve Legomsky as the director of the newly named Whitney R. Harris Institute “In my capacity as founding have given no indication unsuccessfully trying to for Global Legal Studies. … director of what is now the of his extraordinary accom- convince his exhausted Whitney seemed to revel Whitney R. Harris World Law plishments. But with all friends and family to go in the diverse seminars and Institute, I had the privilege that, I have to say that my out for some walking. It conferences we organized of working with Whitney single most vivid memory was both touching and and sponsored, whether during those early years of was of his 90th birthday uplifting to see the mutual comparison of professional the Harris Institute and get- party, where Stan Musial love, respect, and admira- baseball in the United States ting to know him and his played ‘Take Me Out tion that Whitney and and Japan, Mitts Across loving wife, Anna. By now it to the Ball Game’ for Anna so obviously felt for the Pacific, or the debate has become trite to observe Whitney on his harmonica, one another. As for me, over the return of the Elgin what an inspiration Whitney and where Whitney’s son I feel proud to be one marbles and other cultural was to all of us, but that is admiringly recounted how, of those whom Whitney artifacts in the conference, indeed the case—a larger- the day before, the then called ‘little buddy.’” Imperialism, Art & Restitu- than-life figure with limitless 90-year-old legend had tion. I was equally privileged Stephen H. Legomsky talent, a big heart, and a played 18 holes of golf, John S. Lehmann to have been able to work self-effacing, down-to-earth followed by dinner, danc- University Professor, with him as he both inspired personal style that would ing, and swimming, before Washington University and led the planning effort School of Law for the last conference of

12 | Whitney R. Harris World Law Institute Magazine F A L L 2 0 1 0 (left) Whitney R. Harris, right, at the Nuremberg prosecutions (left, below) Whitney R. Harris was an NGO delegate to the 1998 Rome with Robert Jackson, left Conference for the Treaty establishing it, as was I. He represented the committee his role at Nuremberg, and in 1954, of Former Nuremberg Prosecutors at the published the first definitive book on the Rome Conference and championed the trial, Tyranny on Trial: The Evidence at view that the rule of law must displace Nuremberg, which the New York Times the rule of force, and that establishing a Book Review described as a “masterly and permanent International Criminal Court meticulous condensation” of the docu- would confirm the principles laid down mentary evidence and “a book of endur- by the Nuremberg Tribunal half a cen- ing importance.” I can attest to the same, tury earlier. One should not underesti- having often relied upon the book in my mate the effect that the living witness of own work. Two subsequent editions of these former Nuremberg prosecutors had the book were published, which has since upon the 165 governments and 250 been translated into German. NGOs present in Rome. Whitney and Whitney and I also shared a common the others had witnessed unspeakable understanding of the need for a perma- horrors, but saw these terrible events as a nent International Criminal Court. He clarion call to action, not as a rationale

my term—the Celebration “… Whitney Harris was, “… With Whitney gone, is now indisputably criminal. of the 60th Anniversary of in the world of law, I am the lone Nuremberg No more important decision the Nuremberg Judgment. one of the most known survivor holding up the was ever made by any court.’ … Whitney put heart and Americans in the world. Nuremberg banner. I have May Whitney’s wisdom and soul into this conference, Elisabeth and I have entered my 91st year, and I vision guide us all to future which by all accounts was come from The Hague know that we are going to world peace.” one of the most substan- to St. Louis to convey need all the help we can get Benjamin B. Ferencz tive, as well as memorable, to you, Anna, but also to remove the current impu- Chief Prosecutor, of all of the Nuremberg to all present and indeed nity from the ICC Statute. Einsatzgruppen Case Judgment celebrations. I to all Americans who Whitney would join with me was privileged—indeed, knew Whitney, the sym- in expressing appreciation “In recent years, Whitney favored—to have known pathy, the respect, and for your help in supporting Harris devoted his ener- Whitney, to have worked the admiration of the that noble goal. The highest gies primarily to speak- with him, to have shared 18 Judges of the Interna- tribute one can pay to the ing, writing, teaching, and time with him and Anna, tional Criminal Court, memory of my friend and embodying the past, the and, above all, to have had from all regions of the colleague, Whitney Harris, progress, and the hope- a glimpse of his kindness, world, for Whitney R. is to cite his own conclusion ful future of international generosity, and the good Harris. It was one, just about the Nuremberg trial. law and justice. He was a will he extended so gra- one of the many excep- In his book, Tyranny on Trial, strong supporter of mod- ciously to all around him.” tional talents of Whitney he quotes the IMT decisions ern international tribunals, that he had a particular that to initiate a war of John O. Haley including the court for the ability to inspire and to aggression is the supreme William R. Orthwein Former Yugoslavia, the encourage others in the international crime and Distinguished Professor court for Rwanda, and the of Law Emeritus, eternal quest for a more that law applies equally to International Criminal Court. Washington University just and better world. …” victor and vanquished. In As Whitney knew best and School of Law Whitney’s own concluding The. Hon. Hans-Peter Kaul explained powerfully, each words, ‘The initiating and Judge, Second Vice President, of those tribunals, and the waging of aggressive war International Criminal Court world progress they can

Whitney R. Harris World Law Institute Magazine F A L L 2 0 1 0 | 13 self-debasement and self-destruction. Harris Collection on the Third Reich of The achievements of that great trial and Germany at Washington University. In historic conference in elevating justice 2001, he endowed the Whitney R. Harris and law over inhumanity and war give Institute for Global Legal Studies at promise for a better tomorrow.” Washington University School of Law. This summer, between 1,500 and In 2008, he and Anna Harris endowed 2,000 delegates will gather on the shores the Institute’s “World Peace Through of Lake Victoria, in Kampala, Uganda, Law Award” at a ceremony during which for the first Review Conference of the the Harris Institute’s name was changed International Criminal Court. Although to the Whitney R. Harris World Law Whitney will not be physically present Institute, the name it bears today.

Whitney R. Harris at a Crimes Against at that event, his spirit will, as each Whitney loved the Harris Institute Humanity Initiative session of us tries to carry on his work in our and often came in to spend time there. own way. He had a warm relationship with all for their own despair. Whitney later wrote Whitney kept the Nuremberg dream the staff, and was especially supportive of the importance of the Nuremberg alive through his writings and his advo- of the directors, including myself. He trials and the Rome Conference that cacy, and later, to all of our great benefit, participated actively in our conferences, “Nuremberg and Rome stand against through his philanthropic generosity. lectures, and debates, and made himself the resignation of humankind to its In 1980, he established the Whitney R. available to our students. He entranced

embody and assist, grew “Whitney Harris lived at the seminar held by comfort in the love and life’s from and builds upon the through a period of great the Mayor of Nuremberg work of dear Whitney.” principles and achievements historic importance in which to commemorate the The. Hon. Richard of Nuremberg.” he played a significant role. 50th anniversary of the J. Goldstone Decades from now, we will Nuremberg Trials in which John Q. Barrett Retired Justice, Constitutional Professor, Robert H. reread the proceedings of Whitney played a lead- Court of South Africa; Jackson Center Inc. the Nuremberg trial, or see ing role. I will never forget Former Chief Prosecutor, him in the films of it, and Whitney’s wonderful voice, U.N. International Criminal recall his charm and dignity. resonating in the very court- Tribunals for the Former “I am very sorry to hear the He was a lucky man to have room where the trial of the Yugoslavia and Rwanda sad news. Whitney stood had the opportunity to Nazi leaders was held, quot- very firm on the video-clip make such a contribution. ing the memorable words “I was saddened to hear that captured his words for We owe him a great debt of Justice Robert Jackson. about the death of your the Crimes Against Human- for having spent the rest No one present was not beloved founder and col- ity conference, and it is nice of his life both commemo- moved. Whitney never league, Whitney Harris. I for us all to have this beau- rating and building upon ceased to work for interna- truly extend my sympathy tiful last image of him to that great achievement.” tional justice and the ending to his wife and to the remember. I am so pleased of impunity for war crimi- Harris Institute. I’m sure that he lived to see the William Schabas nals. It was also a privilege that the foundation, which results of the conference. Director, Irish Centre to work with Whitney on he squarely built, has We will all remember him for Human Rights, National University the still ongoing project to trembled during these last as a remarkable personality of Ireland, Galway draft an International Con- few hours. I want to express and a charming, warm per- vention on Crimes Against what an honor it was for son whom we will all miss.” Humanity. Whitney lived a “It was one of the privileges me to be in the presence of The Hon. Christine full and productive life until of my professional career such a forefather of interna- Van den Wyngaert the end. I send my heartfelt to know and befriend tional legal practice.” Judge, International condolences to Anna and Whitney Harris. We first Patricia Viseur Sellers Criminal Court the other members of his met in 1995 in Nuremberg Humanitarian Law Consultant, family. I know they will find International Criminal Law

14 | Whitney R. Harris World Law Institute Magazine F A L L 2 0 1 0 the students with his ing, and remained our Crimes Against Humanity Initiative, presentations, telling so, right up until his perhaps the most ambitious undertaking them about his expe- passing. Indeed, in for international rule-of-law development riences as a former his final remarks at a by an academic center since the Harvard Nuremberg prosecu- Harris Institute event Research Project was published in 1935. tor, discussing with (which were taped in He understood the need to continue to them the issues of the St. Louis on Febru- reinforce and build upon the Nuremberg day, and patiently ary 24, 2010 and legacy and to complete the work that was answering their ques- delivered at a Harris begun in 1945. He also recognized the tions. They would Institute Conference, importance of not becoming complacent often tell me that Forging a Convention about the future of international criminal their sessions with for Crimes Against justice, given the continuing presence of

him were one of the Whitney and Anna Harris Humanity, held terrible human suffering on the Earth. highlights of their law at the Brookings Indeed, Whitney had no Pollyannaish school careers. Institution on March 11, 2010), his naiveté about the world; he understood Whitney was always kind and gracious, voice was strong, his bearing proud, his the capacity of humans for evil, just as he elegant and distinguished, witty and artic- spirit indomitable. believed in their penchant for good. ulate. He had a beautiful baritone voice Whitney inspired all of us, including In an essay titled “This I Believe: and a manner of speaking that was rivet- myself, to do our best. He fully supported Human Existence Is in Peril,” which aired

“… Of particular note were a rich man indeed justice—humbling and “My sympathy to the was Whitney’s support for my friend. Rest in perfect inspiring at once. He will family and friends of the the annual International peace, Whitney.” be missed, and we will all late Whitney Harris. He Humanitarian Law Dialogs treasure his memory.” was a great man, lawyer, David M. Crane held at the Chautauqua and writer.” Former Chief Prosecutor, Ambassador Christian Institution each year, a place Special Court for Sierra Leone; Wenaweser Ambassador Zvonimir where the current and for- Professor, Syracuse University Permanent Representative, Paul Separovic mer international prosecu- College of Law Principality of Liechtenstein; Former Minister of Foreign tors, from Nuremberg to President, Assembly of the Affairs, Republic of Croatia; the International Criminal States Parties to the Interna- “I am very sorry to hear this Former Croatian Ambassador Court, meet to discuss key tional Criminal Court to the United Nations news, but I am grateful to issues in the field of modern you for letting me know. My international criminal law. warm thoughts to the fam- “I join the rest of you in “Let me join our colleagues Whitney attended the first ily, to you, and to colleagues expressing true sadness in expressing my deepest two and even wrote a poem at Washington University. indeed at the passing of regrets over the loss of a in commemoration of the He was an amazing guy, and Whitney R. Harris … A bril- pillar of international crimi- first dialog. I will end this they just don’t make them liant mind and undoubt- nal justice. He may have short humble remembrance like that anymore.” edly, one of the monuments departed from us, but his with parts of that poem that of international criminal memory will linger in our Richard Dicker he read to us in August of justice. He has contributed hearts and his works will Director, International 2007: ‘The tyrant must be greatly and has inspired memorialize in the annals forced to end his tyranny. Justice Program, Human Rights Watch so many of us to continue of history. It is owed to his The aggressor must be pun- to plough on. May his soul memory for us not to relent ished for his aggressions. rest in perfect peace.” in the quest for justice for “Meeting Whitney was one And law, not force, must all. May his soul rest in rule the world.’ The Romans of the big and unforget- Fatou Bensouda Deputy Prosecutor, International perfect peace.” had a phrase: ‘He who has table moments of my work Criminal Court friends has treasure.’ You on international criminal Joseph F. Kamara Deputy Prosecutor, Special Court for Sierra Leone

Whitney R. Harris World Law Institute Magazine F A L L 2 0 1 0 | 15 planet.” He closed by saying, “I believe there is a God; I believe God is merciful and just, but if man desires to destroy himself, I believe God will not save him.” Whitney Harris is survived by his wife, Anna, whom he loved dearly, by devoted family, by friends and colleagues, and by the students he touched at Washington University and around

Crimes Against Humanity Initiative partici- the world. For those of us at Washington pants pay tribute to Whitney R. Harris. University and at the Whitney R. Harris World Law Institute, we are saddened Whitney R. Harris at an international and on National Public Radio’s “All Things by the thought that Whitney will never humanitarian law conference Considered,” he stated, “The challenge to visit with us again. Yet we cherish the humanity is to establish and to maintain many years we had together, and we are at Nuremberg. Whitney Harris may have the foundations of peace and justice upon ready to carry on the important work passed from this world to the next one, the Earth for the centuries to come that that Whitney began so many years ago in but his spirit and his legacy live on and God has allotted him to live upon this Courtroom 600 in the Palace of Justice will endure. ||||

“Sad news indeed. A sole a talented lawyer, teacher, into his grand study, and through law, and that it and important legal link to and writer, but he was also held forth for an hour talk- will go on forever via the the past is now gone. You a brilliant orator, and this ing about the significance extraordinary institute phrased it well in your in combination convinced his of Nuremberg in his life and that bears his name.” memoriam. Keep up all audiences—generations of the need to keep waging Eli Rosenbaum the good work!” students, lawyers, diplo- the good fight for interna- Director, U.S. DOJ Office mats—of the necessity to tional justice. One of the Krister Thelin of Special Investigations Member, United Nations build an international judi- highest honors of my life cial system to promote jus- was when Whitney told me Human Rights Committee “Just this past week I was tice and law for the future how much he admired what talking to an audience in benefit of mankind. …” I had done in our common “It is with a feeling of pro- the course of Holocaust cause. Coming from him, found admiration and grati- Silvana Arbia remembrance and men- that was all I needed to tude that I join in the many Registrar, International tioned how privileged I Criminal Court stay the course. I mourn praises expressed so far had been to meet Whitney his passing, but I celebrate in memory of the late Mr. and how impressed I was his noble life.” Whitney R. Harris. His contri- “I drew inspiration from with his unflinching dedica- bution to the development Whitney Harris through the The. Hon. David Scheffer tion to justice. It is very sad of the international criminal years. He was my beacon Former U.S. Ambassador-at- news indeed. I look forward law and justice system was into the past. I will forever Large for War Crimes Issues to honoring Whitney’s enormous and spanned over remember his fortitude, memory in Kampala, and 65 years—pioneering the wisdom, commanding voice, “… Whitney’s remarkable in the meantime, please prosecution of war crimes in and gracious smile. Once, life’s work in service of extend my deepest condo- Nuremberg as a young law- while in St. Louis, I dropped humanity will truly go on lences to his family.“ yer and leading its first case, by his home simply to say for decades to come as the Robert Petit where he was confronted hello. He was battling can- scholars and prosecutors Former Chief Co-Prosecutor, with the full horrors of the cer, and, at first, I thought I he has so deeply inspired Extraordinary Chambers in atrocities committed by had made a terrible mistake. (myself certainly included!) the Courts of Cambodia the Nazis. Not only was he But he smiled, invited me continue to fight for peace

16 | Whitney R. Harris World Law Institute Magazine F A L L 2 0 1 0 Justice for East Timor and Beyond By Timothy J. Fox

our hundred miles in idem, more commonly referred to as under the French Vichy government north of Australia, the the problem of ‘double jeopardy,’” she whose best defense was that he had island nation of East explains. “The problem was that Indo- killed “only” seven people. Timor is “out of sight” nesians had allegedly committed crimes, Cases like Touvier’s, the famous and “out of mind” for including terrible massacres, in East Nuremberg trials, and the 1992 outbreak the average American. Timor. However, it was thought that of war in Bosnia set the stage for the FHowever, it is never far from the heart the Indonesian government was trying ICC, Sadat says. But at that time, she and mind of Leila Nadya Sadat, the to shield its nationals from prosecution did not know that she would soon meet Henry H. Oberschelp Professor of Law by trying them in Indonesia before the the late Whitney R. Harris and one day and director of the Whitney R. Harris special panels in East Timor could act.” become director of the Harris Institute. World Law Institute. More recently, Sadat served as a spe- “I’m an eternal optimist,” says Sadat. In 1995, Sadat began attending cial adviser to the Timorese government “I believe that much can be done to meetings leading up to the creation of during negotiations that led up to the make the world a safer, saner place—the the International Criminal Court (ICC). first Review Conference on the Rome fall of the Soviet Union, for example, The ICC was established in 1998 by Statute in Kampala, Uganda. shows that the transformation of a soci- the Rome Statute of the International The conference brought together ety is possible given the right conditions Criminal Court—a treaty drafted to the 111 nation-states and many non- and the right pressures. The ICC pres- create an international court that would governmental organizations (NGOs) that ents a very powerful idea—that leaders seek justice for victims of war crimes and signed the Rome Statute (the United can be held accountable for their actions. other crimes against humanity. States, unfortunately, is not among them, It is an idea whose time has come.” The year after establishment of Sadat notes). Its purpose was to consider Sadat believes that the world today the ICC, East Timor ended its nearly changes to the Rome Statute and to eval- faces three distinct challenges: environ- quarter-century occupation by Indonesia. uate its “implementation and impact.” mental degradation and climate change; Experts estimate that between 60,000 “East Timor is a small nation that nuclear weapons; and government and 200,000 Timorese were killed during had suffered from war crimes and crimes accountability. those tumultuous years. Countless more against humanity; it was a great supporter Regarding the first challenge, Sadat were raped, tortured, or imprisoned. of the ICC,” Sadat says. “The country remembers talking with Professor Oliver Armed with her understanding of the had an interest in making sure that the Houck when she was a law student at ICC and the challenges of prosecuting court continues to be impartial, indepen- Tulane University. “He was sounding perpetrators of war crimes, Sadat took dent, and effective.” the alarm about global warming 25 on the grim task of documenting the Sadat, who has been a member of the years ago,” she says. “Environmental atrocities committed at the hands of Washington University law faculty for degradation is a problem because people the Indonesian forces for special panels 18 years, says that her interest in public don’t see the Earth as a living thing that created to bring the guilty to justice. international law, international criminal we need to protect.” “I was asked to address an impor- law, and human rights spans her career, Similarly, nuclear arms control seems tant legal issue—the question of ne bis including her work as a law clerk for both beyond the reach of the everyday per- of France’s supreme courts and son, she notes. But Sadat believes that an attorney in Paris. government accountability offers a more “I had practiced law and tangible opportunity for hope. “If a taught in France first,” remem- government leader takes part in massive bers Sadat. “Early in my teach- transgressions of human rights, there are ing career, the French courts now legal tools, like the ICC, to make were involved in several inter- people responsible for those actions,” esting cases regarding crimes she says. “Society needs rules, institutions against humanity committed to provide the rules, and institutions during World War II.” to enforce the rules. Enforcing human One of those cases was that rights is a challenging problem, but not of Paul Touvier, a radically an insurmountable one.” |||| anti-Semitic “small-time thug”

Whitney R. Harris World Law Institute Magazine F A L L 2 0 1 0 | 17 Human Rights Expert By Terri McClain Bassiouni Receives World Peace Through Law Award

“The struggle for peace, law, and justice in the world is eternal.” Whitney R. Harris, February 8, 2001

Cherif Bassiouni, Distinguished Research Pro- fessor of Law at DePaul Uni- Mversity College of Law. and founder and president emeritus of the International Human Rights Law Institute, received the Whitney R. Harris World Law Insti- tute’s 2010 World Peace Through Law Award at a special dinner ceremony held on March 11 in Washington, D.C. “The award was established in 2006 to recognize individuals who have achieved great distinction in the field From left: Dean Kent Syverud, M. Cherif Bassiouni, and Leila Nadya Sadat of international law and international relations,” says Leila Nadya Sadat, the Henry H. Oberschelp Professor of Law man of the Security Council’s Commis- He also has served as a consultant to the and director of the Harris Institute. “It sion to Investigate War Crimes in the U.S. Departments of State and Justice. is bestowed upon an individual who, by Former Yugoslavia (1992–94); Com- In 1999, he was nominated for the his or her work and writings, has con- mission on Human Rights independent Nobel Peace Prize for his work in the field siderably advanced the rule of law and expert on the Rights to Restitution, of international criminal justice and for his thereby contributed to world peace.” Compensation, and Rehabilitation for contribution to the creation of the Inter- Bassiouni is the author of 27 books, Victims of Grave Violations of Human national Criminal Court. His many inter- the editor of 44 books, and the author of Rights and Fundamental Freedoms national awards include The Hague Prize more than 200 articles on a wide range (1998–2000); vice chairman of the Gen- for International Law in 2007, the Grand of legal issues, including international eral Assembly’s Ad Hoc Committee on Cross of the Order of Merit (Commander) criminal and human rights law. the Establishment of an International from Germany and the French Legion He has served the United Nations in Criminal Court (1995); and chairman d’Honneur (Officier), both in 2003. He numerous capacities since 1975, includ- of the Drafting Committee of the 1998 has held the position of non-resident pro- ing as independent expert on human Diplomatic Conference on the Establish- fessor of criminal law at the University of rights in Afghanistan (2004–05); chair- ment of an International Criminal Court. Cairo since 1996.

18 | Whitney R. Harris World Law Institute Magazine F A L L 2 0 1 0 The award committee voted unani- Humanity—the culmination of the International Criminal Tribunals for mously to honor Bassiouni for many Harris Institute’s nearly three-year the Former Yugoslavia and Rwanda, reasons, says Sadat, “including his Crimes Against Humanity Initiative that crimes against humanity came extraordinary work as a leader in the that commissioned papers and convened to the forefront of international field of international justice and a cham- meetings in St. Louis and The Hague legal proceedings. pion of human rights for all human involving academics, practitioners, inter- This year’s award was endowed beings everywhere. He has been a leading national judges, and other representatives by a generous gift from Whitney and figure in the establishment of the Inter- to study international law regarding Anna Harris. The institute is named in national Criminal Court and an impor- crimes against humanity. honor of philanthropist Whitney Harris, tant voice in calling for the development At the award dinner, Bassiouni deliv- who died in April 2010 at age 97. He of an international instrument to combat ered an address on “Crimes Against was the last surviving prosecutor of the crimes against humanity. Humanity: The Case for a Specialized post-World War II Nuremberg Trials, “His 1994 article, ‘Crimes Against Convention.” Bassiouni cited the WWI which set an important precedent for Humanity: The Need for a Specialized Armenian genocide, for which Turkish the establishment of an International Convention,’ was inspirational officials were never prosecuted, despite Criminal Court. and sowed the seeds for the current an international outcry. He noted that Previous Peace Through Law Award success of the Harris Institute’s Crimes after WWII, at Nuremberg and Tokyo, recipients are Judge Philippe Kirsch, Against Humanity Initiative,” continues the 46 persons indicted were prosecuted former President of the International Sadat. “Professor Bassiouni has been a primarily for crimes against peace and Criminal Court, and Justice Richard great friend and supporter of both the war crimes rather than crimes against Goldstone, former Chief Prosecutor of Harris Institute and Whitney R. Harris humanity. It was not until the 1990s, the International Criminal Tribunals for for many years, as well as an inspiration when the United Nations established the the Former Yugoslavia and Rwanda. |||| to all of the staff at the Harris Institute. He has been tireless in his work as a member of the Crimes Against Human- ity Initiative’s Steering Committee, and we are especially grateful for his extraordinary leadership in the drafting of the International Convention on the Prevention and Punishment of Crimes Against Humanity.” The World Peace Through Law Award ceremony was held during a March 11–12, 2010 conference for the Crimes Against Humanity Initiative. The The Hon. Richard Goldstone The Hon. Philippe Kirsch conference, held at the Brookings Insti- tution in Washington, D.C., brought together top international criminal law experts to unveil and discuss a draft of the International Convention on the Pre- vention and Punishment of Crimes Against

Whitney R. Harris World Law Institute Magazine F A L L 2 0 1 0 | 19 [Notes from the Field]

A Year in The Hague By Amitis Khojasteh, JD ’08

preparing witness summaries, and attending court proceedings. Time away from work was spent with other interns who have become fast friends. I visited Rotterdam, Delft, Amsterdam, and even Paris. We enjoyed the beach at Scheveningen, visited the Peace Palace and museums, participated in the Dutch nightlife, and often simply spent afternoons talking and laughing over coffee. The beautiful setting of canals and flowers contrasted sharply with the serious nature of my work at the ICTY. As the trial proceedings concluded, my role on the team shifted. A short- age of legal officers led to my having a hen I first remarkable opportunity to participate in arrived in the drafting of the judgment. During the The Hague, I next few months, I found myself com- could not have pletely immersed in the horrific events imagined that that occurred in Eastern Bosnia in July a year later I 1995, and particularly, the acts of one of W would be sit- the accused during these events as I stud- ting in the courtroom among the legal ied exhibits, trial transcripts, and the final officers as the historic judgment in the briefs of the parties. I soon found myself Popović et al. case was handed down. becoming more and more comfortable This was the largest trial to date at the in discussing, analyzing, and evaluating International Criminal Tribunal for the evidence, the arguments of the parties, Former Yugoslavia (ICTY). Seven former and complex legal issues with the legal high-ranking Bosnian Serb military and officers and judges. police officials were convicted of a range My days were filled with legal of crimes including war crimes, crimes research; studying maps, intercepts, and against humanity, and genocide related combat reports; and reading the accounts to the attacks on Srebrenica and Žepa. of witnesses, including individuals who I began my internship in Trial managed to survive mass executions. Chamber II of the ICTY in June 2009. Their testimonies, in particular, were at My responsibility was to assist the judges once horrifying and heartbreaking. It was and legal officers of the Chamber. Ini- not unusual to work late into the night tially, my duties included performing and on weekends. research, assisting in drafting legal docu- When my internship was scheduled ments such as decisions on motions, to end in December 2009, I was asked to

20 | Whitney R. Harris World Law Institute Magazine F A L L 2 0 1 0 extend my stay at the Tribunal to continue my work on the judgment drafting. Sub- sequently, a short-term contract enabled me to stay on until the completion of the judgment and changed my status from intern to temporary staff member. One of my most significant experiences Scenes from Amitis was attending the judges’ deliberations on Khojasteh’s year in The Hague, including the judgment. These rare glimpses into views of the tribunal what occurs behind closed doors after building, a group the trial proceedings have ended reveal of interns, and a court proceeding an aspect of the international criminal justice system that few people have the opportunity to experience and witness firsthand. I had read and studied ICTY cases in law school, and it seemed almost unbelievable that within only two years after graduation, I was now participating in such a case. It was a profound experience to sit at a table with the judges as they debated and discussed issues and on occasion asked for my opinion. Through my course work at Washington University School of Law and as a research assistant for Professor Leila Sadat, I had gained a strong foundation in international criminal law. But now I was no longer working on hypo- thetical situations and legal issues—I was actually applying law to real ence. I was very fortunate to events and people. I was no longer only be in the unique position to studying or analyzing jurisprudence but see the case to its conclusion contributing to it and to the historical and even more fortunate to record on the Srebrenica genocide. have been able to work with As someone who is passionate about the extraordinary individu- international justice and human rights, I als of the Chambers staff and the am grateful to have had this remarkable judges on the case. Their dedication opportunity. Living in The Hague and and hard work to bring this painful working at the ICTY on the Popović et al. chapter in world history to a just close case was truly a once-in-a-lifetime experi- are truly inspiring. ||||

Whitney R. Harris World Law Institute Magazine F A L L 2 0 1 0 | 21 [Notes from the Field]

An American in Paris By Matthew M. Bunda, JD ’06

Paris, speaking with a British woman from a French company that leases corporate apartments to Americans working temporarily in Paris. It was September 16, 2008, and I was a third-year associate in the New York office of Cleary Gottlieb Steen & Hamilton LLP. The firm had asked me to spend the fall in the Paris office to join a team working on arbitrations in which our firm represented the Russian Federation against a group of claimants owning parts of Yukos, the massive Russian oil conglom- erate. The claimants sought to recover up to $100 billion from Russia under (right and opposite) Scenes from a bal- rights they purported to have under cony and terrace at the Energy Charter Treaty of 1994, a the Cleary Gottlieb multilateral treaty intended to facilitate office where Matthew Bunda worked in Paris Western investment in former Soviet Bloc countries. The tribunal had scheduled a two- week hearing on whether it had jurisdic- can vividly recall my tion to hear the claims for November somewhat daunting, yet very 2008, and our firm was in full swing cut-and-dried introduction to preparing for it, with lawyers from six life in Paris: “If you lose these (of our 12) offices involved—Paris, keys or close this door behind New York, London, Washington, D.C., you without them, and it’s on Rome, and Moscow. Two junior asso- the weekend or after-hours, you’re stuck. ciates from New York, including me, I would work with partners in New York, You will have to stay with friends for the night or for the weekend,” the leas- Washington, D.C., and London, and ing manager said while showing me how with the team in Paris in preparing pri- to operate the complex, automatic lock marily for the witness-testimony portion mechanism that stood between me and of the hearings, in which law professor what would be my apartment in Paris experts on the Energy Charter Treaty for the next three months. and the Russian legal system would tes- “But I don’t know anyone,” I said. tify, as well as several QCs from England “Then I guess you would have to stay on the law governing Channel Islands in a hotel,” she responded. trusts (relevant for reasons too compli- “But what if I get locked out without cated to explain here!). my wallet or phone or anything?” I said. Although I had spent much of my “Well I guess it’s important not to get previous time at Cleary working on locked out then, isn’t it?” she replied. securities litigation in federal court in I was standing at the door of my New York, the Yukos assignment was, fourth-floor, walk-up in the northeast in certain ways, a return to familiar ter- corner of the Eighth Arrondissement of ritory—one that I had covered while at

22 | Whitney R. Harris World Law Institute Magazine F A L L 2 0 1 0 Washington University. As a second-year law student, under the supervision of Pro- fessor Leila Sadat (also a Cleary alumna, I should add), I was a member of the Jessup International Law Moot Court Team. We participated in a worldwide moot court competition, briefing and arguing a case involving a treaty dispute on behalf of a fictitious sovereign government before the International Court of Justice. Our team had success, winning the competition’s Hardy C. Dillard Award for the best memorials submitted worldwide. Now, of course, our client was not the fictitious King- dom of Raglan nor the Republic of Appollonia, but the very real government of Russia. While the work was fascinating, the cultural adjustment was even more so. I never lost my keys or closed the unsettlingly automatic- without ties)— locking door to my flat behind me with- a rejection of the business casual out them, but my utter lack of French attire that predominates here. Espresso gave his now-famous victory address language proficiency (I spent a few weeks is available at all times, but the copying before a quarter-of-a-million people in working with the first-level Rosetta Stone service (a 24-hour staple at firms in New Grant Park in Chicago. program before heading over) left me in York) closes at 5 p.m. Shortly after the election, it was a few precarious situations. Surrounded As events unfolded, it was also a time for the hearing, which was to be by French speakers at all times, I learned remarkable time to observe America held at the Peace Palace in The Hague, just enough to be a danger to myself— from abroad. Lehman Brothers filed the Netherlands, a city devoted nearly I could pronounce words with a passable for bankruptcy the morning I flew to entirely to international diplomacy accent, but did not have much of an idea Paris, setting off the well-known chain and law. With the majestic, tapestried what they meant. I could order a steak, of events leading to the global financial Japanese Room as the setting, the cross- but looked dumbfounded when asked crisis of that fall. And French media examinations we had prepared for our what I presume was whether it should be followed the American presidential portion of the hearing unfolded dramati- medium-rare or medium. Dry-cleaning campaign with possibly more fervor cally and as we had hoped. With my was also impossible to figure out, so I than it did their own. When Barack assignment complete and the hearing wore wrinkled shirts for three months. Obama was elected president, I watched over, I returned to New York, grateful to Language barriers aside, there were the campaign coverage from midnight have broadened my horizons and grate- other interesting contrasts in office con- to six in the morning, first at a party ful, also, to be home. A year later, the ventions. At the office, it was not unusual hosted by an American expatriate group tribunal sided with the claimants, decid- for lunches to include wine—and extend (an event also covered heavily by French ing that it had jurisdiction to hear the for several hours—a change from the 15 television), and then, eventually, fighting merits of the claims, but at that point I minutes or fewer devoted to the exercise sleep on the couch in my friend’s 18th was thankfully back to the intricacies of in Manhattan. French lawyers dress bet- century Latin Quarter flat, as Obama securities litigation. |||| ter, usually in well-tailored suits (but

Whitney R. Harris World Law Institute Magazine F A L L 2 0 1 0 | 23 [Notes from the Field]

Dispatches from By Marguerite Roy, JD ’07 Afghanistan Gardez City where the regional office is based. Interesting, as well as sobering, to note is that I was on my way back from a meeting with the provincial police commander and another station commander when a suicide attacker detonated literally minutes from where our meeting had taken place. These same commanders were the target of a complex attack just last month in Gardez City, again within close range of our regional compound. For the past few weeks we have been on lockdown or White City as we call it— unable to leave our heavily fortified compound—due to suicide attack threats in the city. Indeed, today as I write this I am confined to my compound where I live any people ask and work with my other U.N. colleagues. me to describe Thus, when asked about my typical day a typical day in you can now understand that for me and Afghanistan. My my staff it does not exist. response? There are no typical days, Planning Programs especially in the Southeast Region where M and Strategies there is an active insurgency. I am the Head of Office for the United Nations Last month, I gathered together the Assistance Mission in Afghanistan and senior program staff, both national as well the Area Security Coordinator for all as international—for a strategy session U.N. Agencies working in the region. to plan our 2010 program activities. In As an example of unpredictability, I the post-election environment and the was in Khost Province last week and my military surge, it is unclear what we will return to the region was delayed by one be able to do in terms of programs. So day due to weather conditions. In this we set out to come up with a plan, first area we can travel to very few places by identifying our strengths as an orga- vehicle due to explosive devices on the nization, done via a SWOT Analysis

Marguerite Roy, main routes so we are dependent on heli- (Strengths, Weaknesses, Opportunities, JD ‘07, has been serv- copters. Then the day I managed to leave and Threats). As our mandate is largely ing as the Head of was the day a suicide bomber penetrated one of coordination, all units partici- Office for the United Nations Assistance a military base in Khost killing seven CIA pated—Political, Governance, Human Mission in Afghani- personnel and a Jordanian—the same Rights, Development and Humanitarian stan and the Area base that I have been to visit military Affairs, and Rule of Law. We gathered the Security Coordinator colleagues working in development and first day to work out the main issues of for all U.N. Agen- cies working in the reconstruction in the province, as well as the SWOT Analysis, determining that we region since 2007. those fighting the insurgency. offer a primary means of communication For three days in a row there have between the population and the govern- been serious attacks in the center of town ment, as well as between the population both in Khost province where I oversee and the military. We determined that a provincial office and just yesterday in the second day would be spent coming

24 | Whitney R. Harris World Law Institute M Fagazine A L L 2 0 1 0 F A L L 2 0 1 0 up with a plan to coordinate our activi- Scenes from Marguerite Roy’s ties between the various units mentioned ongoing work above within our own office. in Afghanistan, However, not having any typical days including with a in the Southeast Region, an explosion in delegation of U.N. and other interna- a neighboring compound disrupted any tional organization plans we had for the remainder of the representatives, day. We all felt the vibration of the blast a group of community organizers, due to its proximity to our compound and officers of the and spent the rest of the morning on International Security the phone to check on our colleagues. Assistance Force Although nothing appeared on the news, five security personnel were killed on the compound, including a Gurkha Guard. Our international colleagues working for the organization were evacuated to the nearest military base and have since gone either to the capital or home on an extended leave. When we reconvened in the after- noon, the meeting did not last more than an hour as concentration was at an all-time low. Individual units were tasked to complete their strategies, and coordination between them was to take place at a later time, after the holidays. legal system and how it functions allows the capacity of the local government, me to better understand and guide my while the political unit concentrates on Preparing for a War Zone staff. The courses offered by specialists in religious and tribal dynamics having For me, graduation from Washington their field—international law, interna- an impact on the population and the University was in May 2007, and I was tional human rights law, international security situation. The rule of law unit sworn into the Missouri Bar in Septem- criminal law, and immigration law— specializes in the formal and informal ber 2007 before leaving for Afghanistan enabled me to develop an approach to justice sector. Finally, the development in October. One might ask why become my work that I would not otherwise have and humanitarian affairs unit coordinates a lawyer only to head off to a war zone? had. I also took advantage of the summer development activities within the region That is precisely why I became a lawyer, program offered jointly by Washington and distributes humanitarian assistance to because it offers the flexibility to follow University and Case Western at Utrecht those in need, including refugees fleeing any number of career paths with the University where I took fascinating the conflict in Pakistan. skills one can only acquire with a law courses such as Religion & Terrorism, I firmly believe the knowledge degree, especially one from a top 20 International Constitutional Law, and acquired through the variety of courses school that offers the range of courses International Courts & Tribunals. Look- and my experiences both at Washington found at Washington University. ing at all sides of an issue is a skill best University and Utrecht University have As I oversee five different sectors, acquired through a legal education. enabled me to approach my work with an including political, human rights, rule of The human rights unit I now over- effectiveness that otherwise I would not law, governance, and development and see focuses on civilian casualties, illegal have had. Despite the daily challenges, I humanitarian affairs, the in-depth under- detentions, and violence against women. feel armed with the confidence and legal standing I acquired in law school of the The governance unit aims to increase tools that I need to persist. ||||

Whitney R.W Hhitneyarris W Rorld. Harris Law W Instituteorld Law M Instituteagazine FF A A L L L L 2 2 0 0 1 1 0 0 | 2525 Harris Institute Speakers and Events 2008–10

(left) Catherine (left) Betty Amirfar, Oyella Bigombe, Debevoise & Woodrow Plimpton LLP Wilson Interna- tional Center

(right) Ambassador Feisal al-Istrabadi of Iraq and Leila Nadya Sadat

(left) Robert Peroni, University of Texas

(above) Panel from the International Humanitarian Law Dialogs in Chautauqua

(right) Lucy Reed, Freshfields Bruckhaus Deringer LLP

(above) Ambassador Charles Stith, African Presidential Archives and Research Center

26 | Whitney R. Harris World Law Institute Magazine F A L L 2 0 1 0 (left) Charles Freeman, Center for Strategic and International Studies

(right) Jonathan Hafetz, ACLU National Security Project

(right) (right) Joyce E. Penner, Juan Méndez, University of Michigan International Center for Transitional Justice

(left) Robert (left) (left) Guénaël Mettraux, Peroni, University Philippe Sands, International Criminal of Texas University College Tribunal for the London Former Yugoslavia

(right) H.E. Thomas Buergenthal, International Court of Justice

Whitney R. Harris World Law Institute Magazine F A L L 2 0 1 0 | 27 Ambassadors Program Offers Global, Real-World Perspectives

ometimes the best ideas So far five ambassadors have partici- take time to germinate and pated, four Americans and an Iraqi. The blossom into full form. lectures and, in the case of Ambassador- Leila Nadya Sadat had just in-Residence Thomas A. Schweich, arrived at the law school the courses have covered topics from in 1993 when, as faculty trade and the United Nations to war Sadviser to the international moot court crimes and international drug trafficking. competition, she recruited as a judge for The diplomats have shared their first- the final round Ralph Earle II, who was hand experiences with Afghanistan and chief U.S. negotiator other global hotspots in Africa and the in the SALT II talks Middle East. with the Soviets. “What we’re really trying to do is Sadat, now the bring some of that foreign policy exper- Henry H. Oberschelp tise to students at our law school. We Professor of Law have a strong international law program, and director of the and it is important that it not just be Whitney R. Harris international law, but international law World Law Institute, and policy,” Sadat says. recalls that Earle’s As she explains, “The law will tell account of how an you the drugs are illegal, but it won’t arms control treaty is tell you how to get rid of them. The law negotiated was capti- can tell you that human trafficking is a vating to students. crime, but it can’t tell you how to elimi- Ambassador Thomas “We can tell them in law school, nate or really attack the problem. The Schweich with student here are the provisions of the treaty, legal expertise is a very strong tool that research assistants here’s what it says, here’s how you acquire we give our students, but understand- it. But to get somebody to come in and ing how you take the legal expertise and actually say, ‘Well, you know, I sat down actually achieve solving the problem, with the Russians, and here’s what we that’s an extra value added.” talked about. This is how we did it,’— that just brings a whole other dimension and learning process for the students,” she explains. That has become a dimension regu- larly offered since Sadat, as the new director of the Harris Institute, created the Ambassadors Program in 2007 to bring active or retired diplomats to the law school to provide real-life lessons in international law and policy.

Ambassador Carla A. Hills

28 | Whitney R. Harris World Law Institute Magazine F A L L 2 0 1 0 By Kenneth J. Cooper

Carla A. Hills, the U.S. Trade led students through detailed comparisons In 2009–2010, two Americans gave Representative under the first President of initial and final drafts of U.N. docu- lectures based on their diplomatic experi- Bush, inaugurated the Ambassadors ments, and engaged them in role-playing ences. Stephen J. Rapp, Ambassador-at- Program. She delivered the Tyrrell as representatives of different countries. Large for War Crimes Issues, lectured Williams Lecture on “Trade and the “You understand how the real world about the ability of international justice 2008 Elections,” expounding on a functions,” says Alberti. “He helped to bring war crimes violators to account. perennial political issue in this era of us understand why the politics that He had led the prosecution of Charles globalization. Ambassador Hills is chair existed were in place.” Taylor, the former president of Liberia, and chief executive officer of Hills & Iraqi Ambassador Feisal al-Istrabadi for such violations. Company, an international consultancy was his country’s deputy permanent Charles Stith, Ambassador to on trade and investment issues. representative to the U.N. in early 2009 Tanzania in the Clinton administra- Schweich arrived in the summer when he lectured about transitional tion, lectured on U.S.–Africa relations of 2008 for a two-year stay as the first justice in the prosecutions of Iraq’s in the Obama era. He currently directs Ambassador-in-Residence. Before the lat- former leaders. the African Presidential Archives and est change of administrations in Washing- Research Center at Boston University. ton, D.C., he held dual roles as the State Asked how participants in the Department’s coordinator for counter- Ambassadors Program are selected, narcotics and justice reform in Afghani- Sadat notes the speaker’s scholarship stan, and principal deputy assistant as it relates to law school projects and secretary for the Bureau of International the Harris Institute’s interest in interna- Narcotics and Law Enforcement Affairs. tional criminal justice. During his first year at the law school, “We try to pick people who have he served as Special Representative of the some connection to programs that we Director-General of the U.N. Office on are already doing,” she says, “to reinforce Drugs and Crime. the intellectual content and give students “Ambassador Schweich has had a tre- some idea of what they might do with mendous impact on our students, both their law degree and how they might go in and out of the classroom. He is an Ambassador Feisal al-Istrabadi out and achieve their dreams.” |||| inspiring and informative instructor, and his courses on Afghan history and on the inner workings of the United Nations are among our most popular,” says Michael Peil, associate dean for international programs and executive director of the Transnational Law Program. “The students who had the opportunity to assist Ambassador Schweich during his time with the U.N. Office on Drugs & Crime considered it the highlight of their time in law school.” Genevra Alberti, a third-year student who took his U.N. course, says Schweich Ambassador Charles Stith Stephen Rapp, Ambassador-at-Large for War Crimes Issues

Whitney R. Harris World Law Institute Magazine F A L L 2 0 1 0 | 29 Four Faculty Members Awarded Fulbrights

s the first Washington University faculty member to receive the Fulbright -Tocqueville Distinguished Chair, Leila Nadya Sadat will help expand the Univer- sity’sA and law school’s worldwide partnerships. Sadat, the Henry H. Oberschelp Professor of Law and director of the Whitney R. Harris Leila Nadya Sadat Dorsey D. Ellis, Jr. World Law Institute, is one of four law faculty members to receive Fulbright awards in 2009 and 2010. The others are Dorsey D. Ellis, Jr., Sadat, who earned law degrees from dean emeritus and the William R. Orthwein Tulane University, Columbia University, and Distinguished Professor of Law Emeritus; the University of Paris–Sorbonne, hopes her David Law, professor of law and of political Fulbright experience will foster relationships science in Arts & Sciences; and Jo Ellen Lewis, among Washington University and institutions professor of practice and director of the Legal of higher education in France. Practice Program. “The law school has no Francophone part- During spring 2011, Sadat will teach one ners at this point in time, making this collabo- course in French and another in English to ration particularly important given the strong international graduate students at the Univer- interest amongst our students in studying in sity of Cergy-Pontoise in France. In related French and in France,” Sadat says. speaking engagements, including a lecture The Fulbright program awards its distin- at the Conseil d’Etat, one of France’s two guished chairs to renowned scholars set apart supreme courts, she will focus on her cel- by significant experience and extensive publi- ebrated work regarding the International cations in their fields. The Tocqueville Chair Criminal Court (ICC). was established in 2005, marking the bicenten- In numerous publications, Sadat has exam- nial of the birth of Alexis de Tocqueville, the ined international law issues across a broad famous French historian, politician, and author spectrum. These include the ICC, amnesties for of Democracy in America. Sadat is the first international crimes, and the legal framework woman named to this chair, which is awarded applicable to the U.S. “war on terror,” particu- by the Franco-American Commission. larly in regard to the treatment of detainees. Further cementing the law school’s ties with “The Tocqueville Chair lectures to a distin- Catholic University of Portugal will be a lasting guished audience at several points during his impact of Ellis’s Fulbright grant. During spring or her term, and a research colloquium is orga- 2011, Ellis will teach two graduate classes, nized around the interests of the Tocqueville Antitrust Law and International & Comparative Chair by the host university,” Sadat says. “In Competition Law at the university in Lisbon. my case, the colloquium undoubtedly will be “This should improve our ability to partner on comparative U.S. and European perspec- with Lisbon’s law school as part of the Trans- tives and outlooks on the ICC and public national Law Program,” says Ellis, who serves international law more generally, although as the program’s academic director. “I may also the precise topic remains to be decided.” be successful in recruiting more of their students to the program.”

30 | Whitney R. Harris World Law Institute Magazine F A L L 2 0 1 0 By Nancy Fowler Larson

with China,” Law says. “One competitive advantage Taiwan might have is its respect for basic rights or, at least, its ability to lead people to believe it respects basic rights.” Law’s research in Taiwan will form part of a book on the globalization of constitutional law that builds upon his previous research in this area, including his 2008 article “Globalization Dorsey D. Ellis, Jr. David S. Law Jo Ellen Lewis and the Future of Constitutional Rights.” He also will work directly with Professor Wen-Chen Chang, a leading Taiwanese public law scholar In the past, Ellis has taught in Belgium, whose transnational and interdisciplinary work Japan, the Netherlands, New Zealand, complements Law’s own scholarship in compar- Taiwan, and the United Kingdom. Working ative public law, judicial politics, constitutional with law students from a broader range of politics, and constitutional theory. European nations, as well as other countries, Last May, Lewis returned to the law school also will add to Ellis’s expertise when he with a broader understanding of international returns to teach his antitrust comparative law students and legal education in China. law course at Washington University. A Fulbright Senior Specialist Grant took her “I expect to increase my understanding to Shanghai’s Fudan University, with which of competition law as it is enforced in other Washington University has a strong relation- parts of the world, especially in Europe,” Ellis ship. At Fudan’s School of Law, Lewis taught says. “That should enhance my ability to teach two courses, Legal English to graduate law stu- competition law systems outside the United dents and Introduction to Torts to undergraduate States, which is becoming increasingly impor- law students. tant for American lawyers to understand.” “China is a civil law country; we are a com- This fall, Law will become the first mon law country,” Lewis says. “The law is Washington University faculty member to visit very different there, but our concerns and our National Taiwan University’s College of Law interests are similar in areas like legal issues, in Taipei. He will conduct research on the glo- legal education, and representation of clients.” balization of constitutional law and the inner This and previous trips to Japan and South workings of Taiwan’s Constitutional Court. Korea have left Lewis with a wider perspective to He notes that the questions he will explore share with international law students and those include: To what extent does constitutional who are interested in international legal and law in Taiwan double as a form of national educational issues. “It’s one thing to read about security policy? Would the process of democ- a culture, it’s another to live in it,” Lewis says. ratization drive judges in previously authori- Previously, Washington University law tarian regimes to borrow constitutionally faculty members and administrators have been from more democratic countries? Does global awarded Fulbright grants for a variety of place- competition for investment or human capital ments, including Austria, France, Germany, give states an economic consensus to respect Israel, Italy, Korea, Nepal, Portugal, South certain constitutional rights? Africa, Spain, and Suriname. |||| “Taiwan will increasingly struggle to retain capital and talent in the face of competition

Whitney R. Harris World Law Institute Magazine F A L L 2 0 1 0 | 31 Leading Scholars Converge to Discuss Cutting-Edge Issues in International Law

enowned scholars in Helfer’s paper, “Opting Out: Deroga- international law and tions from Human Rights Treaties in “Although it is possible to for- foreign relations law National Emergencies.” Additionally, mulate functional arguments recently gathered to Waters presented her forthcoming book for restricting opt-out rights present their works-in- chapter, “International Law as an Inter- under CIL [Customary Inter- progress at the Public pretive Tool, 1945–2000.” national Law], it is difficult to International Law and Theory workshop, “The symposium provided a wonder- conclude from these arguments Rhosted by the law school’s Whitney R. ful opportunity for this distinguished that such restrictions should Harris World Law Institute. Attendees group of scholars to present their work apply across the board to all came from across the country, as well on topics as diverse as the Obama of CIL, especially in light of as from Leiden University and Utrecht administration’s climate change policies; the inefficiencies that such University, both in the Netherlands. the responsibilities of Google, Face- a mandatory regime is likely Leila Nadya Sadat, the Henry H. book, and other technologies under to generate.” Oberschelp Professor of Law and Harris repressive governments; and the theory Institute director, and Melissa Waters, of jus post bellum,” Sadat says. “In ad- Curtis Bradley and Mitu Gulati Duke University professor of law, chaired the conference. dition to presenting cutting-edge pro- Sadat also served as the discussant for grams and lectures, one of the missions Duke University professor Laurence of the Harris Institute is to support and

“The risk is that the underlying digital network itself could make political networks vulnerable, a veritable black book of names and addresses for the secret police to round up. In the optimistic scenario, the Internet might help topple dictators; in the pessimistic scenario, the Internet might cement their control. … It seems incumbent upon us to demand the incul- cation of a professional ethic among new media companies to protect the freedom-enhancing aspects of cyberspace.” Anupam Chander University of California, Davis M ary B ut k us

Professor Leila Nadya Sadat, standing, center, addresses international scholars gathered at the Public International Law and Theory workshop.

32 | Whitney R. Harris World Law Institute Magazine F A L L 2 0 1 0 encourage scholarship at the forefront of international and humanitarian law.” In addition to Helfer and Waters, “The evident lesson of these “Some of the current (mis)per- other presenters were: case studies is that occupation ceptions of the role of moral • Curtis Bradley and Mitu Gulati, is a singularly unhelpful prec- parameters in the theorization Duke University, “Withdrawing edent for planning exits from of jus post bellum might be from International Custom”; nation-building missions. adjusted if just war theorists The fundamental strategy paid greater attention to the • Anupam Chander, University of those missions is to build impact of legal rules and prin- of California, Davis, “Googling liberal democratic structures ciples. Conversely, the legal Freedom”; in the hope they foster recon- discipline may draw valuable Gregory Fox • , Wayne State University, ciliation and coexistence. But insights from the content of the “Exit from Belligerent Occupation”; only four of the 20 occupiers classical jus post bellum under examined sought to build just war doctrine and histori- liberal democracies in the cal sources when defining the territories they controlled.” contours of jus post bellum in modern international law.” Gregory Fox Wayne State University Carsten Stahn (below) Curtis Bradley and Mitu Gulati, Leiden University–Den Haag right, both Duke University

“A state’s decision to dero- “When a court invokes non-self- gate from a human rights execution doctrine as a rationale treaty during a domestic for refusing to decide whether crisis can be explained by threatened criminal sanctions the fact that the deroga- are illegal, the court potentially tion conveys information allows the government to vio- about the state’s future late the law in the very process conduct. … Stable democra- of imposing criminal punish- cies are more likely to dero- ment. As Chief Justice Marshall gate from human rights observed … ‘the United States treaties than autocracies has been emphatically termed or democratizing states.” a government of laws, and not of men.’ It will certainly cease Laurence Helfer Duke University to deserve this high appellation, if the courts allow government officials to impose criminal sanctions in violation of established legal rules.”

David Sloss Santa Clara University (above) Melissa Waters, Washington University

Whitney R. Harris World Law Institute Magazine F A L L 2 0 1 0 | 33 • Frédéric Mégret, McGill University, Targeted Sanctions & the “Prospects for ‘Constitutional’ Human Ombuds-Person: Revisiting the “The tendency by criminal Rights Scrutiny of Substantive Interna- Need for Review in Light of the lawyers to see international tional Criminal Law by the ICC, with Individualization of Security human rights law as part of the Special Emphasis on the General Part”; Council Resolutions.” problem—because of the way in • Hari Osofsky, Washington & Lee In addition to Sadat, other discus- which the human rights move- University (now University of sants included: Adeno Addis, Tulane ment has of late been associ- Minnesota), “Diagonal Federalism University; Robert Ahdieh, Emory ated with pressure for relatively & Climate Change: Implications University; Laura Dickinson, Arizona more repressive constructions of for the Obama Administration”; State University; David Luban, offences—has blinded them to • David Sloss, Santa Clara University, Georgetown University; Luz Nagle, what they know full well domes- “Executing Foster v. Neilson”; Stetson University; Héctor Olásolo, tically, namely that human rights Utrecht University; B. Don Taylor III, • Carsten Stahn, Leiden University– are potentially their best ally in Washington University; Stephen Den Haag, “Jus Post Bellum: pushing back repressive excess.” Thaman, Saint Louis University; Mapping the Discipline(s)”; and Frédéric Mégret and Beth Van Schaack, Santa Clara • Larissa van den Herik, Leiden McGill University University. |||| University, “The Security Council,

(below) Laura Dickinson, Arizona State University

“Specifically, the Obama administration should explore opportunities for (1) greater, smaller-scale governmental involvement in technology- oriented financial incentives programs; (2) federal-level, top-down, vertical initiatives connecting federal approaches to highways, railroads, and gas prices with smaller scale efforts to have people drive less in their communities; and (3) litigation, which often has a rescaling effect, by interested (above) Luz Nagle, Stetson University individuals, nongovernmental organizations, corporations, and government.”

Hari Osofsky Washington & Lee University

(above) Héctor Olásolo, University of Utrecht, left, and Adeno Addis, Tulane University

34 | Whitney R. Harris World Law Institute Magazine F A L L 2 0 1 0 International Opportunities Abound for Students

Dagen-Legomsky Fellow Margaret Wichmann in Thailand

Each year, Washington University law students Dagen-Legomsky travel around the world enhancing their stud- Fellowship Program ies through specialized programs and projects he Whitney R. Harris World Law Institute’s abroad. Through internships and fellowships, Dagen-Legomsky these student-lawyers gain invaluable firsthand Fellowship Program enables students to experience while working for positive change study and work abroad, throughout the developed and developing particularly in areas of international law Tand human rights law. Endowed by a world. Additionally, through competitions and gift from Margaret Dagen and named international academic programs, students in honor of the Whitney R. Harris World Law Institute’s founding director, receive training and education in international Stephen H. Legomsky, now the John law and human rights law—all designed to S. Lehmann University Professor, the prepare them for a changing and increasingly program has supported students working and studying abroad for the past 10 international legal market. years. In summer 2009, for example, McCall Carter, JD ’10, and Margaret Wichmann, JD ’10, received the Dagen-Legomsky International Public Interest Fellowship to support volunteer work on immigrants and refugee rights Margaret Dagen, with the Church of Northern India center, with the first and the Mekong Region Law Center in Dagen-Legomsky Bangkok, Thailand, respectively. The Fellows Church of Northern India, based in Nagpur, is dedicated to the prevention and punishment of human trafficking. McCall led a delegation of three other students in work there. In summer 2010, Oyinlola Oguntebi provided assistance to defense counsel in trials before the

Whitney R. Harris World Law Institute Magazine F A L L 2 0 1 0 | 35 Summer Institute for Global Justice students International public interest with Fatou Bensouda, International Criminal externs in South Africa at a Court prosecutor, center World Cup soccer game Summer externs in Kenya

Extraordinary Chambers of the Courts tual property law. Students travel to The summer 2010, some 15 Washington of Cambodia. Also this past summer, Hague to observe trials at the Yugoslavia University law students interned in Genevra Alberti traveled to Belgium for Tribunal, the Special Court for Sierra Africa for 10 weeks, providing volunteer an externship with the European Council Leone, and the International Criminal legal services to low-income individuals on Refugees and Exiles. Additionally, Court; visit the International Court of in South Africa, Ghana, Kenya, Burkina 2009 Dagen-Legomsky Hague Fellow Justice; and travel to Brussels to learn Faso, and Nigeria with assistance from Shannon Dobson and 2010 Fellow firsthand about European Union law- Karen Tokarz, the Charles Nagel M. Imad Khan attended The Hague making and institutions. Distinguished Professor of Public Interest Law & Academy for International Law in the Visiting Lecturers in the program have Public Service and director of the Dis- Netherlands. This prestigious opportunity included Justice Richard Goldstone, pute Resolution Program, and from is available to very few U.S. law students, Ambassador David Scheffer, and Profes- Kim Norwood, professor of law. and is made possible by a special arrange- sor David Crane, and guest speakers have Seven of these students worked ment between the Harris Institute and included Judge Philippe Kirsch, former at the Legal Aid Board and Lawyers The Hague Academy of International Law. president of the International Criminal for Human Rights in Durban, South Court; Judges Thomas Buergenthal Africa, where law students have Summer Institute for and Sir Christopher Greenwood of the externed for the past nine years. The Global Justice International Court of Justice; and Fatou Legal Aid Board provides free legal Bensouda, deputy prosecutor of the Inter- assistance on civil and criminal matters For the fifth consecutive year, national Criminal Court. The institute is to indigent South Africans, while Washington University School of Law directed by Leila Nadya Sadat, the Henry Lawyers for Human Rights provides and Case Western Reserve University H. Oberschelp Professor of Law and free legal services to refugees and School of Law have jointly offered an director of the Harris Institute. immigrants. In these placements, exciting opportunity for students to study Washington University law students at Utrecht University in the Netherlands. International Public Interest engage in client counseling, prison vis- Through the Summer Institute for Global Externships and Internships its, community education, negotiation Justice, more than 200 students from the and dispute resolution with agencies, United States and Europe have attended Since 2002, more than 100 Washington legal research and writing, trial prepara- courses taught by prominent experts on a University law students have interned tion, and appellate-brief writing. variety of subjects including atrocity law and studied in Africa through the Africa Five law students interned in and policy, international criminal law, Public Interest Law & Conflict Resolu- Accra, Ghana, at the Legal Resource international human rights, comparative tion Initiative, a student–faculty collabo- Centre and at the Federation of antitrust law, comparative constitutional ration designed to foster study, research, Women Lawyers (FIDA-Ghana). The law, international tax, international and professional experiences in Africa. In Legal Resource Centre works with com- institutions, and international intellec-

36 | Whitney R. Harris World Law Institute Magazine F A L L 2 0 1 0 (above and left) Students involved A summer extern in in sustainable South Africa with a development Karen Tokarz, center, with client from the Democratic projects in summer externs in South Africa Republic of the Congo Madagascar

munities to ensure human rights, social This past summer, one student worked Intellectual Property & Nonprofit Orga- progress, and economic development, with defense counsel. She was the sixth nizations Clinic and lecturer in law; Judi especially in the areas of civil liberties, Washington University law student dur- McLean-Parks, Olin Business School; and health, employment, education, and ing the past three years to assist the tribu- Professor Frank Oros, Sam Fox School housing. FIDA provides free legal advice nal with prosecuting crimes committed of Design & Visual Arts, is offered in and representation in court for indigent during the Khmer Rouge era. Students conjunction with the Missouri Botanical women and children, undertakes literacy also have interned at the International Garden. In spring 2010, students focused programs, and advocates for legislative Criminal Tribunal for Rwanda and at the on the introduction of a water purification reform. This past summer, the students International Criminal Tribunal for the system, a new strain of rice to improve were involved in client counseling, client Former Yugoslavia, with defense counsel, agriculture, and sustainable housing strate- advocacy, community education, and the Office of the Prosecutor, or in the gies. By searching through expired U.S. dispute resolution. Chambers. In 2010, two students also patents, law students are challenged to One student interned in Nairobi, interned for Samata in India, working develop economically feasible solutions to Kenya, for the Federation of Women on mining and environmental issues problems with locally available materials. Lawyers office (FIDA-Kenya), provid- and one student interned with Bridges ing assistance to indigent women and Across Borders in Chiang Mai, Thailand. International Justice & Conflict children. Another student interned in Most of the students received primary Resolution Field Placement Ouagadougou, Burkina Faso, with funding through the law school’s Sum- Millennium Challenge, which provides mer Public Interest Stipend Program, Law students may extern abroad for funding for projects aimed to reduce and several were also awarded travel a semester through the school’s new poverty and stimulate economic growth. stipends from the school’s Office of International Justice & Conflict Resolu- The student worked primarily with a International Programs or had Dagen- tion Semester Field Placement. In Spring former Burkinabe judge who is lead- Legomsky Fellowships. 2010, Sarah Placzek, JD ’10, MSW ’10, ing the conflict management portion worked with the Office of the Prosecu- of a major land re-organization project. Sustainable Development tor for the United Nations International Criminal Tribunal for Rwanda (ICTR), Another student interned for the Legal in Madagascar Action and Women’s Rights Programs based in Arusha, Tanzania, under the of the Social & Economic Rights Action Since 2008, law students have engaged supervision of Professors Sadat and Center, in Lagos, Nigeria, investigating in sustainable, community development Tokarz. This fall law students Oyinlola and documenting human rights issues. projects in Madagascar through the Oguntebi and George Lyle will intern for Several Washington University stu- Madagascar Community Development the ICTR’s Judicial Chambers and the dents have externed with the Extraor- Initiative course, which includes a spring Office of the Prosecutor at the Interna- dinary Chambers of the Courts of break trip to the country. This course, tional Criminal Tribunal for the Former Cambodia (ECCC) in Phnom Penh. co-taught by David Deal, director of the Yugoslavia, respectively.

Whitney R. Harris World Law Institute Magazine F A L L 2 0 1 0 | 37 Leila Nadya Sadat, center, Dorsey D. Ellis, Jr. and B. Don Taylor III, with Transnational Law back row, left, with Program students Cash Nickerson Fellows

ICC Legal Tools Project Cash Nickerson Fellows international borders. The collaborative effort pairs Washington University An innovative agreement with the Thanks to the generosity of alumnus with four European schools: Utrecht International Criminal Court (ICC) Steven Cash Nickerson, JD ’85, University, the University of Trento is presenting law students with the MBA ’93, several fellows have had in Italy, Catholic University of Portu- opportunity to put their research skills the opportunity to work on the Harris gal, and Queen’s University Belfast in into practice. Through the work of the Institute’s Crimes Against Humanity Northern Ireland. Students who are Harris Institute, Washington University Initiative. The nearly three-year project accepted into the program have several School of Law was the first school in the involves studying the international law unique opportunities, including an United States to become a partner in the regarding crimes against humanity and extended study-abroad experience, a ICC’s Legal Tools Project. Through the forging the draft of a multilateral treaty degree from each university attended, arrangement, law students are assisting condemning and prohibiting such crimes. foreign language instruction, and the the ICC with building the most compre- The Cash Nickerson Fellows have per- ability to participate in the law school’s hensive and complete database within formed valuable research on the commis- Summer Institute for Global Justice. the field of international criminal law. sion of atrocities from 1900 to 2009 This past fall, Washington University The ICC’s Legal Tools Project and have worked on both the proposed began hosting its first TLP students, involves the comprehensive collection convention and a related book during Zahra Biniaz, an Iranian national and of resources relevant to the theory and the documentation process. The initial a senior at University College Utrecht practice of international criminal law. fellows were Stephanie Anne Nickerson, (UCU), and Anggaris Priatna, an It also brings modern technologies into BA ’09; Margaret Wichmann, JD ’10; Indonesian national and junior at the investigation, prosecution, and Sarah Placzek, JD ’10, MSW ’10; Erika UCU. After spending a semester as an defense of genocide, crimes against Detjen, JD ’10; Kathryn Minton, JD ’10; exchange student, Biniaz planned to humanity, and war crimes. Under the and McCall Carter, JD ’10. In 2010–11, study here for an additional year and direction of Professor Sadat; Michael the Cash Nickerson Fellows will be pursue an LLM in U.S. Law. During Peil, associate dean for international pro- Genevra Alberti, Shannon Dobson, Nida the spring semester, four Washing- grams; and Yordanka Nedyalkova, Harris Javid, Margaret LeBlanc, and Jason Meyer. ton University law students headed to Institute associate director, the students Europe through the TLP. Having spent are conducting research on national Transnational Law Program their first five semesters in St. Louis, they jurisdictions and national cases. These Founded in 2008, will attend their final three semesters at cases involve core international crimes The Transnational Utrecht University Faculty of Law. from a group of African States. Law Program (TLP) is an international and inter-university effort to cultivate This coming year, 11 Washington a growing class of lawyers and profes- University third-year law students will sionals who are trained to practice across go to Europe and a similar number

38 | Whitney R. Harris World Law Institute Magazine F A L L 2 0 1 0 Law students in the International Human- itarian Law Project

of European students from Portugal, Jessup International Law Championship in 2007. Many Niagara the Netherlands, and Italy will study Moot Court participants have gone on to join the here. The TLP is funded in part by Jessup Team in subsequent years. an Atlantis grant from the Fund for For more than a decade, Washington the Improvement of Postsecondary University School of Law has held International Humanitarian one of the best records in the Philip Education (FIPSE) through the U.S. Law Teaching Project Department of Education and the C. Jessup International Law Moot European Commission. Court Competition, which is among Founded in 2001, the International the oldest and most prestigious interna- Humanitarian Law Teaching Project Executive LLM Program tional law competitions. Annually is a one-of-a-kind cooperative program attracting more than 500 teams from with the St. Louis Chapter of the Amer- New in summer 2010, the Executive nearly 100 countries, the competition ican Red Cross. Through the project, Master of Laws Program (ELLM) is the involves an intricate problem in interna- Red Cross officials train law students result of a partnership between Korea tional law, simulating a case before to teach about topics in international University and Washington Univer- the International Court of Justice. humanitarian law to area high school sity. The 12-week program is aimed at Washington University’s Jessup Team students. After the training session, international attorneys, judges, and gov- has won in the Super Regionals and law students facilitate classroom discus- ernment officials who are interested in advanced to the Internationals multiple sions about topics such as the Geneva increasing their knowledge of U.S. law. times, including in recent years placing Conventions, current conflict zones, The new degree program is part of as high as third and garnering the the lives of refugees, and the extreme the law school’s expanded international Alona M. Evans Memorial Award at challenges posed by landmines. More outreach efforts, which build upon the International Rounds. than 50 law students participate each existing relationships, including those The team’s success is due to the year and more than eight local high through the University’s McDonnell strength of the student competitors and schools take advantage of the program, International Scholars Academy. The the outstanding coaching and advis- which is intended to promote student ELLM Program is designed to prepare ing from Professor Sadat, who serves activism and awareness of these issues. participants for the global legal and as the faculty adviser, and alumnus The coordinators for 2010–11 are business environment through special- Gilbert Sison, JD ’00, an associate at law students Dong Kuen Lee and ized courses in U.S. corporate and busi- Rosenblum, Schwartz, Rogers & Glass Michael Peters. |||| ness law. Another attractive aspect is PC, who serves as head coach. Associate that ELLM graduates who hold a first Dean Michael Peil coaches the Niagara law degree from their home country Cup International Moot Court Com- will be eligible to apply to sit for the petition Team, which won the World New York bar.

Whitney R. Harris World Law Institute Magazine F A L L 2 0 1 0 | 39 [In Review]

American Trust Law in a Chinese Mirror

merican legal missionaries they provide have been inaccessible have left their mark on post-9/11 to those who could most profit Afghanistan and Iraq. Under the from them—trust law scholars and banner of democracy and the rule reformers in the United States. of law, U.S. legal professionals Part III presents the first of every stamp have launched an study of China’s critique of ambitiousA effort to transform the Afghan and Iraqi American trust law. It shows legal landscapes. … that close analysis of Chinese For decades, American legal professionals have commentary, legislative history, exported or, in comparative law parlance, “trans- and statutory text exposes a systemic flaw that planted” American rules, institutions, procedures, and values to U.S. scholars and reformers should address: inadequate checks countries from Albania to Zambia. … The United States is not and balances on trustees. alone. Throughout history, nearly every nation in the world has The article concludes that this finding raises serious questions participated in “legal transplants.” Indeed, the leading author- about the current direction of American trust law. Rather than ity on legal transplants, Alan Watson, has concluded that legal strengthening the traditional legal and moral constraints on transplants from abroad are so common that “[m]ost changes in trustees, reformers are actually weakening those constraints. most systems are the result of borrowing.” … Thus, the mirror China provides should inspire reformers to see Comparative law scholars have produced a vast literature our trust system as it really is and to abandon their ill-advised documenting and analyzing legal transplants. They have offered reform agenda. a plethora of theoretical models to identify the basic features of and rationales for legal transplants. These scholars have engaged * * * in often heated debate over what causes such transplants to thrive, perish, or turn “toxic” in foreign soil. Thus far, compara- The Chinese trust law literature paints a disturbing picture of tive law scholars have focused principally on legal transplants’ an American trust system out of balance. This system favors trust- impact on the “recipient” country. In so doing, those scholars ees at the expense of settlors, beneficiaries, and third parties alike. have missed an equally important phenomenon—the impact of Chinese critics trace this imbalance to three main factors: (1) the the process on the “donor” country. This article seeks to fill this “negative attitude toward settlor rights,” (2) insufficient protection gap in the literature. It argues that legal transplants can provide a of beneficiaries, and (3) secrecy of trusts. mirror for donor countries to see flaws in their own systems and In a Chinese mirror, American settlors are weak and ultimately new directions for reform. irrelevant. Once settlors establish trusts, American trust law Part I presents a critical analysis of comparative law scholar- severs their ties to those trusts. Unless settlors had the foresight ship. It demonstrates that scholars have failed to recognize the to reserve rights in the trust instrument or to name themselves significance of legal transplants for donor as well as recipient trustees or beneficiaries, they “do not possess any rights whatsoever countries. The remainder of the article uses one example— with respect to the trust property or trustee.” Indeed, this separa- China’s 2001 import of the classic “Anglo-American” concept tion of settlor from trust is so complete that American trust law of trust—to illustrate the advantages of a more balanced study denies settlors even the status of party to their own trusts. Under of legal transplants. the American definition of the trust, where once there were three Part II describes the research base for this article. It shows parties to a trust, now only two parties exist—the trustee and the that China has produced a voluminous and impressive compara- beneficiary. The settlor becomes at best an interested bystander. tive trust law literature. Comparative law research and analysis For Chinese scholars, the very notion of cutting off settlors have played a prominent role in the design, dissemination, and from their own trusts is perverse. … Moreover, the American improvement of China’s first Trust Law. Part II demonstrates that approach misses another obvious point—the “constructive China’s comparative trust law literature is important for under- role” of settlors in enforcing their own trusts. Who better than standing the trust law model China transplanted as well as the settlors can determine whether the trust purposes, beneficiary legislative product of that transplant. Yet, because nearly all texts rights, and trustee duties they themselves prescribed are “conscien- are available only in Chinese, these publications and the lessons tiously fulfilled?” Yet, rather than promoting this beneficial, even

40 | Whitney R. Harris World Law Institute Magazine F A L L 2 0 1 0 By Frances H. Foster

indispensable, function of settlors, American trust law In the end, then, the Chinese trust law literature sends an actually impedes it. … unmistakable message to American and Chinese readers alike. China’s depiction of American beneficiaries is troubling. The most effective, fair, and moral trust system is one that recog- The Chinese trust law literature reveals beneficiaries our system nizes and balances the needs of all parties affected by trusts— has left behind—the young, the sick, the nameless, even the settlors, beneficiaries, and third parties as well as trustees. unborn. It shows that in the United States those most vulnerable to trustee abuse and neglect must fend for themselves. According * * * to Chinese scholars, American trust law makes beneficiaries the principal, and often only, check on trustees. This model simply Comparative law scholars define their central mission as to assumes that beneficiaries can defend their own rights and “render the foreign familiar.” … This article has suggested a new interests. Except in the charitable trust context, it provides no mission for the comparative law field—to render the familiar mechanism to protect those who cannot protect themselves. foreign. It has demonstrated that study of a foreign system can Yet, as Chinese commentators emphasize, these are precisely provide invaluable perspectives for domestic legal scholars and the beneficiaries for whom many settlors create trusts. … reformers. Specifically, this article has examined China’s recent Finally, the Chinese trust law literature exposes a third, equally experience with transplanting the American trust law model. It disturbing source of imbalance in American trust law—invisible has shown that the most telling lessons may be found in what trusts. It reveals American trusts so secret that their very existence China rejected rather than what China adopted. … is known only to their settlors and trustees. To make matters The Chinese trust law literature reveals an American trust sys- worse, because trusts are “continuous in nature,” those trusts may tem out of balance, a system that favors trustees at the expense of well survive their settlor’s death. Thus, if the American settlor settlors, beneficiaries, and third parties. This literature shows that takes the secret to the grave, the trustee alone may know that American trust law cuts settlors off from their own trusts, leaves the property she enjoys is not her own. beneficiaries unprotected from trustee abuse, and denies trust Chinese scholars point out that even if beneficiaries are aware parties and third parties alike knowledge of the terms, admin- that such a trust exists, rules that promote secrecy of trusts may istration, and even the very existence of trusts. China’s critique make it impossible for beneficiaries to fulfill the role American exposes the dangers of what both American and Chinese scholars trust law assigns them as enforcer of trusts. Because no record have aptly called a system of “trusting trustees.” exists of an invisible trust’s purpose, property, parties, or fiduciary Ironically, the American trusts and estates field is not ad- rights and duties, beneficiaries lack the information they need to dressing this imbalance, but instead appears to be heading in monitor a trustee and hold that trustee accountable for any mis- precisely the opposite direction. Under the influence of law and conduct. Indeed, secrecy of trusts may effectively deny beneficia- economics theory, prominent scholars and reformers are rapidly ries any claim whatsoever to trust property. … dismantling the traditional legal and moral constraints on trust- The Chinese trust law literature shows that secrecy of trusts ees. Trusts are becoming mere “contracts,” and trust law nothing poses significant dangers as well for American third parties more than “default rules.” “Efficiency” is triumphing over moral- who have a “legal relationship” with the trustee. When trusts ity. In the law and economics universe of foresighted settlors, are secret, a third party has no way to “know the truth” about loyal trustees, informed beneficiaries, and sophisticated family whether the party on the other side of the table is a trustee, and commercial creditors, trusting trustees may make sense. the transaction violates the trust purpose, or the property In the real world, however, it does not. A trust system that at issue is in fact trust property. Chinese authors argue that exalts trustee autonomy over accountability can and increasingly the effect is to injure both the individual involved in the does impose significant human costs on all affected by trusts. transaction with the trustee and the commercial system as China’s critique of American trust law challenges U.S. a whole. Secrecy of trusts can cause third parties to “sustain reformers to reconsider their current course. In a Chinese unwarranted harm,” and undermines the “security and mirror, we can see that trusting trustees is the problem, not efficiency” of commercial transactions. the solution. |||| Chinese commentators trace the invisible trust phenomenon Excerpted with permission from “American Trust Law in to two flaws in American trust law. First, the U.S. system permits a Chinese Mirror,” 94 Minnesota Law Review 602 (2010) oral trusts. … Second, the U.S. system fail[s] to require registra- www.minnesotalawreview.org/sites/default/files/Foster_MLR.pdf tion of trusts except in the charitable trust context. They argue that “public notice of trusts” is essential to ensure that beneficiaries, Frances H. Foster, the Edward T. Foote II Professor of Law, third parties, and the general public can “easily look up the trust specializes in trusts and estates, and the legal systems of socialist purpose,” property, and parties’ rights and duties. … and former socialist countries.

Whitney R. Harris World Law Institute Magazine F A L L 2 0 1 0 | 41 [In Review]

The Anatomy of a Conservative Court: By David S. Law Judicial Review in Japan

he Supreme Court of Japan (SCJ) has been described as the most conservative constitutional court in the world, and for good reason. One might characterize it as “conservative” in the sense of being so passive or cautious that it almost never challenges Tthe government. Alternatively, or in addition, one might characterize it as “conservative” in the sense that it happens to share the ideological views and preferences of Japan’s long-ruling conservative party, the Liberal Democratic Party (LDP). What is clear, however, is that the label fits. Since its creation in 1947, the court, known in Japanese as the Saiko Saibansho, has struck down only eight statutes adapting quickly to a change in said leadership. In practice, the on constitutional grounds. By way of comparison, Germany’s judiciary is run by a cadre of elite senior judges who hold key constitutional court, which was established several years later, administrative posts, including that of Chief Justice, and wield has struck down over 600 laws. The majority of the Japanese an impressive array of powers that enable them to enforce their Supreme Court’s rulings of unconstitutionality have, moreover, preferred views throughout the institution and over time. … been less than momentous. Among the rare and often obscure Parts II and III of this article discuss the two basic reasons legislative provisions that the Court has struck down are a law why the Japanese Supreme Court is so conservative. The first, punishing patricide more severely than other forms of homicide, per Part II, is that it is difficult for someone who is truly liberal a law restricting the ability of pharmacies to operate within close to be appointed to the Court. The second, per Part III, is that it physical proximity of one another, a rule limiting the liability of is difficult for someone who is already on the Court to behave in the postal service for the loss of registered mail, a law restricting a truly liberal way. The reasons for the Court’s conservatism, it the ability of co-owners of forest land to subdivide their property, will be argued, are both political and institutional in nature. and, most recently, a statutory provision that distinguished for The Conclusion draws several lessons from the Japanese purposes of citizenship eligibility between illegitimate children experience about the relationship between judicial politics and of Japanese fathers who acknowledged paternity prior to birth electoral politics, and the mediating role of institutional structure. and those whose fathers acknowledged paternity only subsequent It is impossible to wholly insulate a court from the influence to birth. … of its political environment. Institutional design can, however, Why is the SCJ so conservative? Drawing on interviews con- reconcile the formal requirements of judicial independence with ducted in Japan with a variety of judges, officials, and scholars— the practical necessity of political responsiveness. In Japan, there including seven current and former members of the Japanese exists a sophisticated apparatus for ensuring that the judiciary Supreme Court itself—this article offers an in-depth account of remains in sync with the wishes of the government. This appa- why the Court has failed to take an active role in enforcement ratus is to be found not in the government, however, but within of the postwar constitution. It describes the formal and infor- the judiciary itself. The result is a judiciary that combines a mal institutions and practices that have stacked the deck heavily high degree of judicial independence, in the form of bureaucratic against liberal constitutional decision-making by the SCJ. These autonomy, with a high level of sensitivity to the wishes of relevant include the education, recruitment, and promotion of Japan’s political actors. career judges; the screening and selection of Supreme Court justices; the resource limitations and practical constraints faced * * * by a sitting justice; and the influence of the Chief Justice and select administrators within the judiciary over the behavior of The conservatism of the Japanese Supreme Court illustrates the lower courts and the composition of the SCJ. two recurring features of judicial politics. The first is that judicial What these institutional structures have created, however, politics and electoral politics cannot be decoupled. There is more is not a judiciary that is necessarily or inherently conservative than one way in which the Japanese judiciary can be character- in ideology or disposition, but rather one that is highly respon- ized as independent, but whatever judicial independence means, sive to the sensibilities of its internal leadership and capable of it cannot mean independence over the long term from prevailing

42 | Whitney R. Harris World Law Institute Magazine F A L L 2 0 1 0 political forces. In the Japanese context, judicial independence proven more help than hindrance to the LDP because the manner has meant that the courts have enjoyed the power to manage their in which it is designed provides political actors with the means to own personnel matters in the first instance while also escaping reshape its behavior rapidly and dramatically. Its structural sen- overt forms of control by other political actors over the manner in sitivity to political intervention demonstrates a second recurring which specific cases are decided. What the courts do not possess, feature of judicial politics: the institutional characteristics of however, is the capacity to pursue policies out of sync with those a court govern its responsiveness to the political environment. favored by a government that has been in power for decades. The conservatism of Japan’s courts is the inevitable result of their long- * * * time and ongoing immersion in a conservative political environment. There is no institutional structure or mechanism capable of If management of the judiciary is left to [a] self-replicating thoroughly insulating courts from politics. … clique of judges—as it has been, for most of the past—the result Political actors can influence a court’s behavior directly or will be a judiciary that is both formally independent and highly indirectly by manipulating the composition of the court, the inertial. But the way to change its direction is simple: one need resources available to members of the court, and the range of stra- only replace the head of the mechanism, the Chief Justice. Not- tegic options available to the court as an institution. In the case withstanding the intensely bureaucratic character of the judiciary, of the SCJ, all of these forms of influence are at work. A gauntlet it should be faster and easier for a liberal Prime Minister in Japan of screening mechanisms ensures that left-leaning jurists, who are to transform the Japanese Supreme Court than for a liberal Presi- prepared to strike down policies favored by the LDP, are unlikely dent in the United States to do the same for our Supreme Court. to reach the Supreme Court, while the few who do reach the The most important thing—and perhaps the only thing—that Court are hobbled by acute resource constraints that make it the Prime Minister need do is to defy convention and appoint as difficult for them to steer the law in a new direction. Chief Justice someone who is unusually young, highly energetic, What is perhaps most interesting about Japan from an institu- very liberal, and, perhaps most importantly, has not been recom- tional perspective is that the LDP has, in effect, delegated much of mended by the existing leadership of the judiciary. … the task of political control to ideologically reliable agents within The Japanese judiciary may be a bureaucracy, but it is also the judiciary itself—namely a cadre of senior judges centered a highly disciplined one in which power is concentrated to an upon the Chief Justice and his administrative aides in the General unusual degree in the hands of one person. It is, as a result, Secretariat. The result of this deft bit of engineering is a judiciary neither resistant nor unresponsive to political influence. By the that amply satisfies formal criteria of judicial independence yet time Kazuto Ishida retired after serving only four years as Chief remains reliably in tune with the wishes of the government. Justice, the Supreme Court of Japan was a changed institution. The SCJ is further constrained by the practical difficulty of There is no reason to think that history cannot repeat itself. Pre- prevailing against the government. Judicial efforts to strike down cisely because the judiciary is institutionally responsive to politi- government policy may fail or even backfire: past experience sug- cal influence, however, it is unlikely to change course unless the gests that the LDP may respond to an irksome constitutional government does so as well. Because no amount of institutional decision by ignoring the decision or seeking a constitutional engineering can sever the connection between electoral politics amendment. From a strategic perspective, it is probably better for and judicial politics, any enduring change in the behavior or the Court to render no decision at all than to render a decision direction of the Court must either originate or find support at the that is disobeyed. Disobedience makes a court look ineffectual and ballot box. If the Court is conservative, that is ultimately because thus begets further disobedience. The perception that a court lacks the government is conservative, and so too are a majority of the power is ultimately self-fulfilling. This fact does not appear to be nation’s voters. It is implausible that any judiciary could defy an lost on the justices, one of whom likened the power of the SCJ to ideologically aligned government and electorate for any meaning- that of a denka no, or “treasured sword” of legendary power that ful period of time. What the institutional structure of the Japanese is “passed from generation to generation.” … judiciary ensures is that it will bend sooner rather than later. |||| The institutional characteristics of the SCJ also play an important role in shaping its behavior. Although the impact of politics Excerpted with permission from 87 Texas Law Review 1545 (2009) ssrn.com/abstract=1406169; also translated into Japanese by Professor on judicial behavior is inescapable, the timing and extent of that Shin-ichi Nishikawa of Meiji University and forthcoming in 79 Seikei- impact can vary greatly. Even a dog on a leash enjoys a degree of Ronso (The Review of Economics and Political Science) slack: it can follow faithfully, or it can drag its heels. Likewise, the political environment defines the outer limits of what a court David S. Law, professor of law and professor of political science, can hope to accomplish, but within those limits, the court can writes and teaches in the areas of law and political science, either facilitate or hinder the government’s efforts to make policy. comparative public law, judicial politics, constitutional politics, The internal organization, rules, and practices of the Court play a and constitutional theory. crucial role in determining which course it will take. The SCJ has

Whitney R. Harris World Law Institute Magazine F A L L 2 0 1 0 | 43 [In Review]

Getting Beyond the Crossfire Phenomenon: A Militant Moderate’s Take on the Role of Foreign Authority in Constitutional Interpretation

he U.S. Supreme Court [recently] revisited inform[s] an understanding of the original meaning of the issue that, in many respects, kicked off the Constitution.” the 21st-century debate over the relationship At the confirmation hearings of both Chief Justice John between international law and the U.S. Roberts and Justice Samuel Alito, conservative senators expressed Constitution. In the aptly named Kennedy v. the view that a judge’s citation of foreign precedent constituted Louisiana, Justice Anthony Kennedy, writing an impeachable offense. One prominent conservative scholar has forT a five-member majority, held that the use of the death penalty even called for a constitutional amendment banning the practice. for child rape violated the Eighth Amendment’s prohibition on Many internationalists, for their part, simply cannot understand cruel and unusual punishment. For anti-death penalty advocates, what all of the fuss is about: they remain convinced that citation Kennedy provides important evidence that key victories of the last to foreign authority raises no serious legitimacy concerns what- decade (in Roper v. Simmons and Atkins v. Virginia) thus far have soever. Some international lawyers and scholars find themselves, withstood the recent conservative turn of the Court. like myself, in the uncomfortable middle of the Crossfire debate. For advocates of the use of foreign and international law in As moderates, or “militant moderates” … we recognize and take constitutional interpretation, however, the decision offers a very seriously the legitimacy concerns voiced by nationalists. At the different, and bleaker, picture. For international lawyers, Justice same time, we agree with the internationalists that foreign author- Kennedy’s opinion in Kennedy is a far cry from his groundbreak- ity, properly considered, can and should play an important role ing majority opinion in Roper just three years earlier. Kennedy in constitutional interpretation. But with the increasing pressure is striking in the absence from the opinion of any discussion of to “choose up sides” in this increasingly divisive debate, what’s a foreign authority and the role that it should play in constitutional militant moderate to do? interpretation. Justice Kennedy passed on the opportunity to The modest goal of this essay is to sketch out a militant reiterate—and strengthen—Roper’s holding that “international moderate’s take on the role of foreign and international law in opinion” can play a “confirmatory role” in constitutional analysis. constitutional interpretation—one that moves the debate beyond Gone, too, are Roper’s references to the Convention on the the Crossfire phenomenon depicted in the popular press. I begin Rights of the Child and other human rights treaties, and its by framing the question in terms of the broader (but often over- survey of foreign practices on the death penalty. In short, in looked) issue that, in my view, is really driving current debate: Kennedy, Justice Kennedy’s powerful internationalist voice fell American judges’ growing participation in transnational judicial strangely silent. The reasons behind Justice Kennedy’s apparent dialogue of various kinds. I then briefly examine, and critique, key (perhaps temporary) loss of enthusiasm for the internationalist arguments and assumptions of both internationalists and national- enterprise must necessarily be left to speculation. But he may ists. Finally, I sketch out a militant moderate take on the appropri- well have been influenced by the increasingly rancorous nature ate use of foreign authority in constitutional interpretation. Given of the public debate over the role of foreign authority in constitu- the brevity of this essay, I of course do not seek to provide a defin- tional interpretation. itive answer to complex questions that have been, and will con- Since Roper, that debate—in the news media, in the blogo- tinue to be, considered elsewhere in much greater depth. Instead, sphere, and even before Congress—has fallen prey to what I drawing on previous scholarship, I suggest a possible analytical call the “Crossfire phenomenon.” Like the old CNN news com- framework to consider some of these questions—one that may mentary program, the Crossfire debate on foreign authority help to strike a balance between the legitimate concerns of nation- that has developed since Roper is great fun to watch, but often alists and the equally legitimate aspirations of internationalists. completely unedifying from the perspective of learning anything substantive about the complex issues involved. So-called “nation- * * * alists” saw in Roper an enormous threat to the very foundations of American democracy, and they have been fighting back hard One of the goals of this essay is, in a sense, to re-characterize ever since. In the immediate wake of Roper, members of both the question at the heart of the Crossfire debate: Should U.S. the House and the Senate introduced resolutions declaring courts—following the lead of courts throughout the common that “judicial determinations regarding the meaning of the law world—participate in the emerging (and increasingly robust) Constitution of the United States should not be based on … transnational judicial dialogue on constitutional interpretation? [foreign precedent] unless such … [foreign precedent] For the militant moderate, the answer is, “It depends.” In the

44 | Whitney R. Harris World Law Institute Magazine F A L L 2 0 1 0 By Melissa A. Waters

militant moderate’s Finally, at the far end of the spectrum is a much more radical view, the legitimacy of technique known as the constitutional Charming Betsy canon. transnational judicial dia- In this technique, a domestic constitutional provision is construed logue on constitutional in conformity with the country’s international human rights interpretation depends law obligations. Advocates of the canon argue that, “[w]here entirely on how domestic the [c]onstitution is ambiguous, [a] [c]ourt should adopt that courts go about partici- meaning which conforms to the principles of universal and pating in and shaping fundamental rights rather than an interpretation which would that dialogue. The involve a departure from such rights.” In most common law militant moderate thus countries, the constitutional Charming Betsy canon has not yet focuses on methodology, believing that the entire enterprise is only made its way into the mainstream of judicial practice, instead as legitimate as the underlying methods used by the courts to build remaining the object of human rights amicus briefs and the the dialogue. In other words, the key questions that we should be occasional dissenting opinion. … asking are: How are courts taking into account foreign and interna- My goal here is not to critically assess these interpretive tech- tional legal norms in their work? What interpretive techniques are niques, nor to express views as to which techniques might be they using? Which of those techniques have proven effective, and legitimate for use by U.S. courts (both questions which I have which can be considered “legitimate”? And how do we think about taken up at length elsewhere). Instead, I have briefly described a issues of methodological “legitimacy” in this context? … range of available techniques simply to make a straightforward Current Supreme Court practice with respect to treaties has point—but one that is too often overlooked in the current Cross- thus far been limited to the most conservative technique: the use fire debate. Judicial participation in transnational judicial dialogue of human rights treaties to gild the domestic lily. In this technique, on constitutional interpretation is not a straightforward always/ a court points to international treaty provisions as a kind of value never, for/against proposition. Instead, dialogue takes a variety added—that is, as additional support for its interpretation (based of forms, and courts worldwide have developed a range of tech- on domestic sources of law) of a constitutional provision. The niques—some quite modest, others fairly radical—to participate internal logic of the court’s opinion is rooted in domestic sources; in that dialogue. Similarly, American judges participating in dia- for that reason, the integrity of the opinion would stand even if logue can choose among the various techniques—and perhaps the discussion of treaties were excised entirely. Indeed, discussion develop new approaches that are uniquely appropriate to of international law often seems to be tacked on as a sort of after- American legal and democratic traditions. thought to a detailed discussion of domestic law. Justice Kennedy’s opinion in Roper, at first blush, is a quintes- Author’s Note sential example of the gilding the lily technique. He first con- This past term, the Supreme Court revisited the role of foreign cluded that a domestic consensus existed supporting abolition of and international law in constitutional interpretation. In a 6-3 the juvenile death penalty. He then cited the ICCPR and the decision in Graham v. Florida, the Court held that the Eighth Convention on the Rights of the Child as evidence of an inter- Amendment prohibits the imprisonment of non-homicide juve- national consensus supporting abolition. He contended that the nile offenders for life without the possibility of parole. Justice “opinion of the world community, while not controlling our Kennedy, writing for the majority, once again cited foreign outcome, does provide respected and significant confirmation for and international law (including the Convention on the Rights our own conclusions.” Taken at face value, the “confirmatory role” of the Child) as evidence that the practice was cruel and unusual, that Justice Kennedy ascribes to international opinion seems to be and dissenting Justices once again condemned the practice. a fairly innocuous kind of international “window dressing” for an Thus Graham v. Florida provides striking evidence that Justice opinion otherwise firmly rooted in domestic law. Kennedy’s “powerful internationalist voice” has reasserted itself, Further along the spectrum is a somewhat more aggressive tech- and that debate over the role of foreign and international law nique for utilizing international treaties in constitutional interpre- in constitutional interpretation is far from over. tation: a technique that I call “contextual interpretation.” Rather than simply gilding the lily with international law sources, courts Excerpted with permission from 77 Fordham Law Review 635 (2008) utilizing the contextual approach tightly interweave discussion of law2.fordham.edu/publications/articles/500flspub16896.pdf international treaties into their analysis of domestic legal sources. The courts do not consider the treaties to be binding; instead, they Melissa A. Waters, professor of law, focuses her teaching and rely on them for their persuasive value, considering them useful in scholarship on foreign relations law, international law, conflict elucidating the meaning of domestic constitutional provisions. … of laws, and human rights law.

Whitney R. Harris World Law Institute Magazine F A L L 2 0 1 0 | 45 [In Review]

On the Shores of Lake Victoria: By Leila Nadya Sadat Africa and the Review Conference for the International Criminal Court

n May 31, 2010, between 1,500 and 2,000 the international delegates will gather on the shores of Lake arena, and there are Victoria in Kampala, Uganda, to attend the significant elements first Review Conference for the International of supra national- Criminal Court. Diplomats from presum- ism in the Statute, ably all 111 ICC States Parties will be pres- particularly as regards ent,O along with their counterparts from many ICC non-Party the ability of the States and representatives of civil society. That the seven-year Court’s Assembly of Review Conference is taking place at all, only 12 years after the States Parties to take Diplomatic Conference establishing the Court was held in the decisions by majority city of Rome, is extraordinary. The conventional wisdom on the vote. The adoption of the ICC Statute, by vote rather than ICC’s establishment was that it would take decades, not a mere consensus, over the objections of the United States and China, four years, to achieve the necessary 60 ratifications to bring the also challenged the hegemony of the great powers, and particu- Statute’s entry into force. That this important Diplomatic gath- larly the five Permanent Members of the Security Council. ering for the first Review Conference—the only one mandated This carried over into article 16 of the ICC Statute, which by the ICC Statute—is taking place in the City of Kampala, is permits the Security Council to stop an ICC investigation for even more extraordinary, and profoundly important. 12 months, but only if the Council can muster the votes to do All five situations currently before the Court involve African so, effectively denying the P-5 the veto they wanted over pro- nations, subjecting the Court to accusations that it is biased ceedings before the Court. against Africa. At the same time, it is widely, although not Kampala presents an extraordinary opportunity to build universally, acknowledged that victimization in Africa has been upon the successes of Rome and reflect more deeply upon the widespread, and that these cases represent precisely the kinds implications of what was wrought there, particularly with respect of situations the Court was established to address: the “most to the early operations of the Court and the relationship between serious crimes of concern to the international community as the ICC and situation countries. Yet, Kampala may also become a whole.” Bringing the Review Conference to Africa, where the epicenter of a struggle to tame the Court and make it more African victims and African leaders, as well as the larger inter- amenable to the wishes of the great powers, particularly the national community, can discuss these issues as part of the P-5 (three of which have remained outside the Rome regime “stocktaking exercise” planned for the first week of the Review and all of which are skeptical, to varying degrees, about includ- Conference is deeply significant, much more so than if the issues ing the crime of aggression in the Statute) and, at the same time, were being discussed in an assembly hall located in New York, make it more responsive to States Parties which are directly expe- Geneva, or The Hague. Just as it seemed both appropriate and riencing the operations of the Court on their territories and in fortuitous that the 1998 Diplomatic Conference establishing the their region. ICC was held in Rome, an historic city that had itself suffered To the extent that Rome, with its challenge to the West- centuries of war, there is no doubt that the decision to hold the phalian system, represented an “uneasy revolution,” the revo- Review Conference in Kampala—the capital of an ICC situation lution is far from complete. In spite of the larger number of country—may affect not only the atmospherics of the meeting, ratifications the ICC Statute has attracted, resistance to the but influence its substantive outcome, as well. Rome Paradigm remains, and has even increased over the past Ten years ago, I wrote that the Rome Diplomatic Conference 12 years in some quarters. Certainly, the U.S. position on the may have effectuated a “constitutional moment” for the inter- International Criminal Court only hardened with the election national legal order. It was apparent in 1998 that the adoption of a new U.S. President determined to reassert what he saw as of the International Criminal Court Statute, after more than America’s preeminence and prerogatives. The U.S. attack on the 75 years of false starts, posed a challenge to classic understand- Court probably had an important effect on its early develop- ings of sovereignty and our understanding of the international ment. (Whether the net effect of that attack strengthened or legal system established by the United Nations Charter. The weakened the Court, however, remains to be seen.) Both China ICC Statute places State and non-State actors side by side in and the United States seem recently to have softened their

46 | Whitney R. Harris World Law Institute Magazine F A L L 2 0 1 0 opposition to the ICC, and there is no doubt that the presence the Court can do in the world, and on their continent. On the of a U.S. (Non-State Party) delegation—for the first time in question of aggression, if discussions progress in a manner not nine years—at the Eighth Session of the Assembly of States acceptable to the United States and the other Permanent Mem- Parties, was a harbinger of a possible rapprochement between bers of the Security Council, those States may find themselves this new international institution and its greatest foe. At the opposing the Court as well (and African States may feel that same time, on many issues, there is still more divergence than their refusal to accept the crime of aggression is simply more convergence between the U.S. government and the ICC, par- evidence of the double standards that now imperil the Court’s ticularly as regards the crime of aggression, which will be negoti- legitimacy). It will take skillful leadership and cool heads to ated, and possibly inserted into the Statute, at Kampala. navigate these twin threats to the Court, and like Odysseus’s The ICC’s job has also been made more difficult in some decision to choose Scylla over Charybdis in navigating difficult ways because it has focused all its early investigations in Africa. straits, some difficult political compromises may be necessary to Africa’s struggle against colonialism and the ensuing attach- avoid the entire Kampala conference collapsing. The hope, of ment of Africans to sovereignty and “strong” understandings course, is that the States Parties to the International Criminal of the meaning of self-determination have made the ICC’s Court will leave Kampala willing to recommit themselves to the interventions particularly controversial, especially following ICC and the principles it stands for—no impunity for the com- the issuance of the arrest warrant against Sudanese President mission of atrocity crimes and a commitment to justice as well Omar al Bashir, and the decision by the Prosecutor to apply to as peace. If that happens, Kampala will proudly stand, as Rome the Court to open up an investigation into the Post-Election did in 1998, as the center of the “civilized world”—the place to violence in Kenya, a decision narrowly approved by the Court which those who suffer from the commission of atrocities that in a recent 2-1 decision of Pre-Trial Chamber II. Given that shock the conscience of humankind came to lift their voices the Office of the Prosecutor has received communications from and press their cause so that “their” Court could successfully 8,461 individuals since July 2002 alleging that crimes had carry out the work it was established to do. been committed, mostly from individuals located in France, Germany, Russia, the United Kingdom, and the United States, Epilogue many—and not just Africans—have wondered aloud at the Court’s apparent focus upon Africa, and have argued that the The Kampala conference was ultimately successful in its ICC should have taken up investigations in countries such as stocktaking efforts and in adopting a definition of aggression Colombia and Afghanistan, into the activities of British nation- for the International Criminal Court, but the definition will als during the invasion of Iraq in 2003 (because the Court had be inoperative for many years to come, and at a minimum, no jurisdiction over Americans), and even in Palestine. Is the until 2017. One key concession that was made, in addition to Court’s focus on Africa a question of bias? Holding the Review the delayed entry into force, was that the definition and the Conference in Kampala places this issue front and center. Court’s jurisdiction over the crime will not apply to ICC non- A second controversy that has plagued the ICC regarding Party States (like the United States). Thus, Kampala achieved its initial arrest warrants is whether the issuance of those war- an important symbolic victory, but, as this author predicted, rants in the Uganda and Sudan situations interfered with an like the terrible choice of Odysseus in the Straits of Messina, ongoing peace process and jeopardized civilians suffering from difficult compromises had to be made to save the overall effort, violent assaults on their lives, their way of life, and their posses- some of which may negatively impact the Court considerably sions. Indeed, one of the four items to be taken up during the in the future. |||| first week on “stocktaking” is the issue of “peace and justice,” and the outcome of those discussions will be very important Excerpted with permission from AFLA Quarterly 10 (2010) to shaping the Court’s future. This short article leaves that question open, but at the same time suggests that there is Leila Nadya Sadat, the Henry H. Oberschelp Professor of very little empirical evidence that the ICC’s arrest warrants Law and director of the Whitney R. Harris World Law Institute, have destroyed prospects for peace in any situation country is an internationally recognized authority on international currently before the Court. criminal law and human rights. She represented Timor-Leste So Kampala promises to be a test of States’ commitments during the Eighth Meeting of the ICC Assembly of States Parties to the principles they embraced at Rome, and a very significant and served as an NGO delegate to the ICC Review Conference test of political support for the Court. For African nations, in Kampala, Uganda. upset at being the target of the ICC’s investigations, it will take a great deal to overcome their perceptions that African States are being unfairly singled out, and focus upon the good that

Whitney R. Harris World Law Institute Magazine F A L L 2 0 1 0 | 47 Selected International and Comparative Law Scholarship

HE FOLLOWING IS 29 International Review of Law and Frances H. Foster A SAMPLING OF Economics 349 (2009) Edward T. Foote II Professor of Law WASHINGTON • The Economics of Comparative Law Selected Recent Scholarship (ed. G. De Geest), Edward Elgar (2009) UNIVERSITY School • “American Trust Law in a Chinese Of LAW’S INTERNA- Selected Recent Activities Mirror,” 94 Minnesota Law Review TIONAL AND COM- • Consulting Board, European Review of 602 (2010) Contract Law PARATIVE LAW SCHOLARSHIP, including Selected Recent Activities T • Past president, European Association • Member, Board of Directors, American pieces from faculty whose primary areas of Law & Economics of focus are in different areas of the law. Society of Comparative Law • Delivered recent presentations at Utrecht These entries highlight recent work, • Associate Member, International Academy School of Economics and University of Comparative Law rather than listing all international schol- of Amsterdam arship and activities. Faculty members • Member, American Association for the • Member, Harris Institute Faculty Advancement of Slavic Studies who have conducted international work, Advisory Board • Member, Association for Asian Studies but who have not necessarily published Professor De Geest’s primary areas of focus • Member, Association for the Study of the on international topics, are not included. are comparative law and law and economics. Cuban Economy • Member, Harris Institute Faculty Scott A. Baker John N. Drobak Advisory Board Professor of Law and Professor George Alexander Madill Professor of Professor Foster’s primary areas of focus are of Economics Real Property & Equity Jurisprudence, trusts and estates, and the legal systems of Professor of Economics, and Professor Selected Recent Scholarship socialist and former socialist countries. of Political Economy • Intellectual Property Disclosure as Selected Recent Scholarship ‘Threat’” (with P. Lee and C. Mezzetti), John Owen Haley International Journal of Economic Theory • “Introduction to Law and the New Institu- (forthcoming) tional Economics,” 26 Washington Univer- William R. Orthwein Distinguished sity Journal of Law & Policy 1 (2008) Professor of Law Emeritus • “‘Make or Buy’ and International Law” (with M. Gulati), 165 Journal of • “Understanding Judicial Decision-Making: Selected Recent Scholarship Institutional and Theoretical Economics The Importance of Constraints on Non- • Comparative Law: Historical Development 134 (2009) Rational Deliberations” (with D. North), of the Civil Law Tradition in Europe, Latin 26 Washington University Journal of Law & America, and East Asia (2nd ed.) (with Professor Baker’s primary area of focus Policy 131 (2008) J.H. Merryman and D.S. Clark), LexisNexis is in the intersection of law, economics, (forthcoming) and game theory. Selected Recent Activities • Delivered series of lectures to begin new • Rivers, Revenue, Rice: Law’s Political Evolu- PhD program in law and economics, tions (forthcoming) Gerrit De Geest Goethe University in Frankfurt • “Why Study Japanese Law?” 58 American Professor of Law and Director, Center • Taught U.S. Antitrust Law from a Global Journal of Comparative Law (forthcoming) on Law, Innovation & Economic Growth Perspective, Catholic University of Portugal • “Foundations of Governance and Law: Selected Recent Scholarship • Lectured on limits of rational choice and An Essay on Law’s Evolution in Colonial • Multiple chapters, Economic Analysis of economic theory, European School for Spanish America,” Díkaion (forthcoming) the DCFR: The Work of the Economic New Institutional Economics, Cargese, • “Rivers and Rice: What Lawyers and Impact Group within the CoPECL Network Corsica, France Legal Historians Should Know about of Excellence (eds. Chirico and Larouche), • Chaired panel on “Law and Legal Sys- Medieval Japan,” Journal of Japanese European Law Publishers (2010) tems,” 14th Annual Conference for New Studies (forthcoming) • “The Formation of Contracts in the Draft Institutional Economics, Stirling, Scotland • “Law’s Evolution: The Political Founda- Common Frame of Reference Consumer • Member, Harris Institute Faculty tions of Private Law in Medieval Europe Acquis” (with M. Kovac), 17 European Advisory Board and Japan” (eds. D. Ma. and J.L. Van Review of Private Law 113 (2010) Zanden), Law and Long-Term Economic Professor Drobak’s primary areas of focus are • “Annullable Bonuses and Penalties” Change: An Eurasian Perspective, Stanford law and economics, civil procedure, federal (with G.D. Mattiacci and J. Siegers), University Press (forthcoming) jurisdiction, and theory of property rights.

48 | Whitney R. Harris World Law Institute Magazine F A L L 2 0 1 0 International FACULTY SCHOLARSHIP

• “The Criminal Law of Japan” (eds. K. Selected Recent Activities Peter A. Joy Heller and M.D. Dubber), The Handbook • Delivered numerous presentations Vice Dean; Professor of Law; of Criminal Law, Stanford University Press at international and Japanese law and Co-Director, Criminal Justice Clinic (forthcoming) conferences Selected Recent Scholarship • “Japan: A Society of Rights?” (ed. D. • Member, Board of Trustees and Editorial • “Japan’s New Clinical Programs: A Study Linnan), Legitimacy, Legal Development Committee, Society for Japanese Studies and Change: Law & Modernization Recon- in Light and Shadow,” The Global Clinical sidered, Ashgate Publishing (forthcoming) • Member, Executive Committee, American Movement: Educating Lawyers for Social Society of Comparative Law Justice (ed. F. Bloch), Oxford University • “Recurring Encounters: Personal Perspec- Press (forthcoming) tives on Thomas L. Blakemore’s Career • Former director, Harris Institute • “Commemoration of the Founding Contributions to Japanese Law,” 29 Inter- Professor Haley’s primary areas of focus are of the Japan Clinical Legal Education national House of Japan Bulletin 2 (2009) Japanese law and comparative law. Association (JCLEA): Opportunities for • “Comment on Using Criminal Punishment Collaboration,” 1 Lawyers and Clinical to Serve Both Victim and Social Needs,” Legal Education 21 (2009) 72 Law and Contemporary Problems 219 (2009) • “The Role Played by the National Network of Clinical Faculty: The Experience in the

Whitney R. Harris World Law Institute Magazine F A L L 2 0 1 0 | 49 United States and Issues Facing Japan,” • “The Japanese Constitution: The Appear- • “Refugees, Asylum, and the Rule of 1 Lawyers and Clinical Education 71 (2009) ance and Reality of Constitutional Law in the USA,’’ Refugees, Asylum Seek- ers and the Rule of Law: Comparative Selected Recent Activities Transplantation,” The Social and Political Foundations of Constitutions (eds. D. Perspectives (ed. S. Kneebone), Cam- • Delivered lecture at Northumbria Univer- Galligan and M. Versteeg) (forthcoming) bridge University Press (2009) sity, United Kingdom • “The Anatomy of a Conservative Court: • “Learning to Live with Unequal Justice: • Has lectured, taught, and/or conducted Judicial Review in Japan,” 87 Texas Law Asylum and the Limits to Consistency,’’ research in Australia, Canada, Indonesia, Review 1545 (2009) Refugee Roulette (eds. J. Ramji-Nogales Japan, South Africa, and the United et al.), NYU Press (2009) Kingdom • “Globalisation and the Future of Consti- tutional Rights,” 102 Northwestern Uni- Selected Recent Activities Professor Joy’s primary areas of focus are versity Law Review 1277 (2008) • Serving as Global School of Law Visiting legal ethics, clinical legal education, and Professor, Catholic University of Portugal trial practice. Selected Recent Activities • Received Fulbright Grant, National Taiwan • Drafted proposed bill for revamping University’s College of Law U.S. immigration adjudication system, Tove Klovning at request of U.S. House Immigration • Awarded International Affairs Fellowship Foreign/Comparative/International Law Subcommittee in Japan (Hitachi Fellowship), Council on Librarian and Lecturer in Law Foreign Relations • Delivered numerous scholarly presenta- Selected Library Research Guides tions on immigration, refugees, and • Presented “The Evolution and Ideology citizenship, including those in Potsdam, • “Research Survival Skills in an American of Global Constitutionalism” (with M. Hong Kong, Lisbon, London, Brus- Law Library for Visiting Scholars” and Versteeg), Law and Society Association sels, Berlin, Chicago, Duke University, “Comparative Constitutional Law— annual meeting in Chicago and American Pennsylvania State University, Catholic A Legal Research Guide for the Novice Political Science Association annual University of D.C., Hebrew University of and Experienced Legal Researcher,” meeting in Washington, D.C. FCIL online (2010) Jerusalem, the University of New Mexico, • Presented paper on imposed constitution- and the ABA annual Administrative Law • “Researching International Legal Issues,” alism in Japan at Foundation for Law, conference in Washington; upcoming “International Legal Process: War Crimes Justice, and Society, Oxford University, talks include those in Nijmegen, Tel Aviv, Tribunals,” and “Researching the Law of among other scholarly presentations Stockholm, Lund, Hong Kong, Braga, a Foreign Country,” FCIL online (2009) Professor Law’s primary areas of focus are and Miami Selected Recent Activities law and political science, comparative public • Member, Harris Institute Faculty Advisory • Moderator, Global Legal Skills Conference law, judicial politics, constitutional politics, Board, and former director, Harris Institute III, Monterrey, Mexico and constitutional theory. Professor Legomsky’s primary areas of focus • Attended, 28th Annual Course on Inter- are U.S., comparative, and international national Law Librarianship in Istanbul, immigration and refugee law and policy. Turkey Stephen H. Legomsky John S. Lehmann University Professor • Taught legal research seminar, Catholic University of Portugal Selected Recent Scholarship Jo Ellen D. Lewis Professor Klovning’s primary area of focus is • “Citizens’ Rights and Human Rights,” Professor of Practice and foreign, comparative, and international law 43 Israel Law Review (forthcoming) Director, Legal Practice Program as it applies to legal research. • “Undocumented Students, College Selected Recent Scholarship Education, and Life Beyond,” Children • “Legal Writing Programs in Korean Without a State (ed. J. Bhabha), MIT Press Law Schools: Possible Structures and David S. Law (forthcoming) Resources,” 9 Journal of Korean Law Professor of Law and Professor • “Restructuring Immigrant Adjudication,” 381 (2010) of Political Science 59 Duke Law Journal 1635 (2010) • “Developing and Implementing Effective Selected Recent Scholarship • Immigration and Refugee Law and Policy Legal Writing Programs in Korean Law • Foreword: The Supreme Court and (with C. Rodríguez, beginning with Schools,” 9 Journal of Korean Law 125 Benign Elite Democracy in Japan (H. Itoh), 5th ed.), Foundation Press (5th ed., (2009) Palgrave MacMillan (2010) 2009) Selected Recent Activities • “Judicial Independence,” The International • “Portraits of the Undocumented Immi- • Received Fulbright Senior Specialist grant Encyclopedia of Political Science (eds. B. grant: A Dialogue,” 44 Georgia Law to teach at Fudan University School of Badie et al.) (forthcoming) Review 65 (2009) Law; taught courses in Legal English • “Review of David B. Goldman, Globali- • “The Last Bastions of State Sovereignty: and Torts to PhD, LLM, and undergradu- sation and the Western Legal Tradition: Immigration and Nationality Go Global,” ate students Recurring Patterns of Law and Authority,” Challenges of Globalization (ed. A.C. • Presented program on “Teaching Legal 52 American Journal of Legal History Sobel), Routledge Press (2009) Skills to International Faculty and Stu- (forthcoming) dents” at Global Legal Skills Conference V,

50 | Whitney R. Harris World Law Institute Magazine F A L L 2 0 1 0 International FACULTY SCHOLARSHIP

hosted by Facultad Libre de Derecho Ideology” and “The Interface of Open • Keynote speaker, Houston World Affairs de Monterrey, Mexico Source and Proprietary Agricultural Inno- Council event on modern China • Conducted workshop for legal writ- vation: Facilitated Access and Benefit- • Published op-eds on Chinese domestic ing professors in South Korea, hosted Sharing Under the New FAO Treaty,” politics in the New York Times and Los by Seoul National University School of 40 Washington University Journal of Law Angeles Times & Policy 405 (2009) Law and the Korean Association of Law • Taught class on American property law, Schools, in 2009 and 2010 • “The Proposed Anti-Counterfeiting P.R.C. State Intellectual Property Office Trade Agreement (ACTA): Two Tales • Lectured at Korea University on clinical Professor Minzner’s primary area of focus is legal education of a Treaty,” 46 Houston Law Review 1235 (2009) Chinese law and politics. • Served as visiting lecturer at Aoyoma Gakuin University, Tokyo • Licensing Intellectual Property in the Infor- mation Age (with K. Port, J. Dratler, F. Stanley L. Paulson • Served as visiting professor at Universidade Hammersley, T. McElwee, and B. Wrigley), Catolica Portuguesa’s School of Law in Carolina Academic Press (2nd ed., 2005, William Gardiner Hammond Professor Lisbon, teaching English Legal Writing and teacher’s manual, 2008) of Law and Professor of Philosophy Legal Research—U.S. Law to LLM students Selected Recent Activities Selected Recent Scholarship Professor Lewis’s primary area of focus • Former consultant, World Intellectual • “A Strong Normativity Thesis in Hans is legal practice, including legal research, Property Organization Kelsen’s Legal Philosophy?” Institutional analysis, and writing. She also specializes Reason, (ed. M. Klatt), Oxford University in real estate law. • University Ambassador to Korea University Press (forthcoming) through Washington University’s McDonnell International Scholars Academy • “The Very Idea of Positivism,” The Legacy Wei Luo of John Austin (ed. M. Freeman), Oxford • Member, Harris Institute Faculty University Press (forthcoming) Lecturer in Law and Director of Advisory Board Selected Recent Activities Technical Services, Law Library • Has taught, lectured, and/or researched • Conference at University of Leicester Selected Recent Scholarship in Argentina, Brazil, China, England, devoted to Paulson’s work, with com- • Export Control and WMD Nonproliferation Germany, India, Japan, Korea, Malaysia, Taiwan, Singapore, and Switzerland mentators from the United Kingdom Law: A Legal Research Guide, William S. and European continent Hein & Co. (2009) Professor McManis’s primary area of focus is intellectual property law. • Delivered plenary address at conference • Legal Research: A Textbook (Falu Wenxian on Kelsen’s work, Buenos Aires Jiansuo Jiaocheng) (with Liying Yu), Tsinghua University Press (2008) • Served as John Fleming Visiting Fellow in Carl Minzner the Faculty of Law, Australian National Selected Recent Activities Associate Professor of Law University, Canberra (summer 2010) • Past chair, American Association of Law Selected Recent Scholarship Professor Paulson’s primary area of focus Libraries’ Asian Law Working Group is European legal philosophy and legal • Past president, Asian American Law • “Review of The China Legal Develop- theory, and he is an authority on the work Library Caucus ment Yearbook, Volumes 1 and 2,” China of Hans Kelsen. Review International, Brill and China Acad- • Working with the Legislative Affairs Office emy of Social Sciences Press (forthcoming) of the People’s Republic of China’s State Council on the creation of a codification • “Judicial Disciplinary Systems for Incor- Adam H. Rosenzweig system for the PRC’s laws and regulations rectly Decided Cases,” 39 New Mexico Associate Professor of Law Law Review (2009); also to appear as • Hosted a symposium on freedom of gov- chapter in Chinese Justice: Civil Dispute Selected Recent Scholarship ernment information in Beijing with Philip Resolution in Contemporary China (eds. • “Taxing Offshore Investment Funds” Berwick, associate dean for information M. Woo, M. Gallagher, and M. Goldman), (forthcoming) resources and lecturer in law, and the Cambridge University Press (forthcoming) Law Society of China • “Thinking Outside the (Tax) Treaty” • “Riots and Coverups: Counterproductive (forthcoming) Professor Luo’s primary areas of focus are Control of Local Agents in China,” • “Not All Carried Interests Are Created Chinese law and legal research, in addition 31 University of Pennsylvania Journal of Equal,” 29 Northwestern Journal of Inter- to his work in the law library. International Law 53 (2009) national Law & Business 213 (2009) Selected Recent Activities Selected Recent Activities • Organized conference, Legal Reform Charles R. McManis • Presented papers on international tax in China Thomas & Karole Green and international relations at the Interna- Professor of Law • Testified before Congress regarding tional Law Weekend and Law & Society Chinese government petitioning Annual Meeting Selected Recent Scholarship institutions • “Introduction: Open Source and Propri- etary Models of Innovation: Beyond

Whitney R. Harris World Law Institute Magazine F A L L 2 0 1 0 | 51 • Member, Harris Institute Faculty 5,000 at Chautauqua Institution, among • Since 2002, has directed externship place- Advisory Board numerous presentations ments for law students with Legal Aid Professor Rosenzweig’s primary area of • Has taught, lectured, worked, and/or Board and Lawyers for Human Rights in focus is tax law and policy. conducted research in Belgium, France, South Africa; also assists with field place- Germany, Greece, Ireland, Italy, the Neth- ments for students in Rwanda, Burkina erlands, and the United Arab Emirates Faso, Cambodia, Thailand, and India Leila Nadya Sadat Professor Sadat’s primary areas of focus are • Served as Fulbright Senior Specialist, Henry H. Oberschelp Professor of Law public international law, international crimi- University of KwaZulu-Natal in Durban, and Director, Whitney R. Harris nal law, and human rights law. South Africa World Law Institute Professor Tokarz’s primary areas of focus are Selected Recent Scholarship dispute resolution, clinical legal education, Brian Tamanaha human trafficking, and international clinical • “A Rawlsian Approach to International legal education and dispute resolution. Criminal Justice and the International Professor of Law Criminal Court,” Tulane Journal of Inter- Selected Recent Scholarship national & Comparative Law (forthcoming) • Beyond the Formalist–Realist Divide: Melissa A. Waters • Crimes Against Humanity: The Need for The Role of Politics in Judging, Princeton Professor of Law a Specialized Convention, Cambridge University Press (2010) Selected Recent Scholarship University Press (forthcoming) • “Understanding Legal Pluralism: Past to • “Understanding the Complexities of Inter- Present, Local to Global,” 2007 Julius • “Judicial Dialogue in Roper: Signaling the national Criminal Tribunal Jurisdiction,” Stone Address, 30 Sydney Law Review 375 Court’s Emergence as a Transnational Routledge Handbook of International (2008) Legal Actor?,” The U.S. Supreme Court Criminal Law (forthcoming) and International Law: Continuity or Selected Recent Activities Change? (eds. Sloss et al.), Cambridge • “The Nuremberg Paradox,” 58 American • Delivered featured lectures at universi- Press (forthcoming) Journal of Comparative Law 151 (2010) ties in Jakarta, Nagoya, Sao Paulo, • “International Law as an Interpretive • “On the Shores of Lake Victoria: Africa and Toronto Tool, 1945–2000,” The U.S. Supreme and the Review Conference for the • Presented on legal pluralism at forum Court and International Law: Continuity International Criminal Court,” AFLA sponsored by the United States Institute or Change? (eds. Sloss et al.), Cambridge Quarterly 10 (2010) for Peace Press (forthcoming) • “Transnational Judicial Dialogue and the • Has taught, lectured, worked, and/or • “The Attitudes of U.S. Courts Towards Rwandan Genocide: Aspects of Antago- conducted research in Australia, Brazil, International Courts and Tribunals: Is nism and Complementarity,” 22 Leiden Canada, Japan, and the United Kingdom; Sanchez-Llamas a Model for Transnational Journal of International Law 543 (2009); has published many articles in a variety of Dialogue?” The United States and Interna- Grotius Centre Lecture at The Hague leading journals, and has had various pub- tional Courts and Tribunals, (ed. Romano), • “A Presumption of Guilt: The Unlawful lications translated into Chinese, Japanese, Cambridge Press (forthcoming) Enemy Combatant and the U.S. War on Spanish, French, and Ukrainian Selected Recent Activities Terror,” 37 Denver Journal of International Professor Tamanaha’s primary areas of focus • Served as visiting scholar at the Brookings Law 539 (2009) are comparative law and jurisprudence. Institution, researching book examin- Selected Recent Activities ing political, economic, and legal forces • Named Distinguished Fulbright Alexis involved in evolution of the death penalty de Tocqueville Chair at the University Karen L. Tokarz under international law of Cergy-Pontoise in Paris, France Charles Nagel Professor of Public • Taught short course on death penalty, (spring 2010) Interest Law & Public Service; and Utrecht University Director, Dispute Resolution Program • Chair, Steering Committee, Crimes • Served as principal co-author of Supreme Against Humanity Initiative, Washington Selected Recent Scholarship Court amicus brief in Kiyemba v. Obama, University School of Law • “Advancing Social Justice Through ADR addressing ramifications under interna- • Represented Timor-Leste during Eighth and Clinical Legal Education in India, tional law of U.S. government’s indefinite Meeting of ICC Assembly of States Parties South Africa, and the U.S.,” The Global detention of non-combatant Chinese Clinical Movement: Educating Lawyers for Uighurs • Served as NGO delegate to ICC Review Social Justice (ed. F. Block), Oxford Conference in Kampala, Uganda • Presented scholarship at annual confer- University Press (forthcoming) ence of the American Society of Interna- • Chair, International Law Students Selected Recent Activities tional Law, among other presentations Association • Presented “International Clinical Extern- • Member, Harris Institute Faculty • Director, Summer Institute for Global ships,” Externships 5 conference and Advisory Board Justice, and adviser, Philip C. Jessup Miami, Florida, and “Universal Clinical Professor Waters’ primary areas of focus International Law Moot Court Team Legal Education,” Association of American are foreign relations law, international law, • Delivered speech on prosecuting Crimes Law Schools Conference on Clinical conflict of laws, and human rights law. Against Humanity to audience of nearly Legal Education

52 | Whitney R. Harris World Law Institute Magazine F A L L 2 0 1 0 “… the struggle for peace, law, and justice in the world is eternal.”

—Whitney R. Harris February 8, 2001

53 Nonprofit Organization U.S. Postage Paid St. Louis, MO Permit No. 804

Whitney R. Harris World Law Institute Campus Box 1120 One Brookings Drive St. Louis, MO 63130-4899

This poster collage represents some of the lectures and events sponsored by Washington University’s Whitney R. Harris World Law Institute in 2008–10.