On the legality of stockpiling chemical weapons, again for the non-expert

This will actually be the second in a series of four blog posts about chemical weapons in international law.  I know this will be boring for some people, but I'm soooo freaking excited that my friends want to talk about international law!  Even if this will end within a week or so, I'm taking every opportunity I can to talk about my one true love in life.

The first blog post was about how Syria could be obliged to not use chemical weapons when it wasn't a party. This one is about the legality of stockpiling chemical weapons under international law. The next one will be about the use of chemical weapons by Israel during the last Gaza conflict.  There's a fourth subject I wanted to talk about but now that I'm typing this, I forgot.  So I'll update this post later to reflect that.  Also, at some point I'll put a little cheat sheet of international law terms somewhere.

A friend wrote to ask me about that first blog to ask how stockpiling chemical weapons could be justified when the Convention on Chemical Weapons bans it.  This is a great question that is slightly technical and relates to the relationship between treaty and customary law and I realised it was a big gap in my explanation.  Sorry about that, but stick with me for one more international law post.

Let's start with the first and most important part: Article 1 of the Convention does prohibit stockpiling, acquiring, retaining or transferring chemical weapons:

"1. Each State Party to this Convention undertakes never under any circumstances:
(a) To develop, produce, otherwise acquire, stockpile or retain chemical weapons, or transfer, directly or indirectly, chemical weapons to anyone;"

Now, Some treaties can generate customary obligations. Perhaps the easiest treaties to point to on this are the Four Geneva Conventions relating to the treatment of people during war.  They have 195  parties. There's only 193 countries in the UN. This means if you're a newbie country,* you're more likely to agree to the Geneva Conventions than you are to the UN Charter.

And non-countries or wanna-be countries sometimes sign on to the Geneva Conventions because they find the protection offered there appropriate. The Palestinian Liberation Organisation agreed to adhere to the Geneva Conventions in 1989, more than 20 years before they would be recognised as a country (though not a member) by the United Nations General Assembly.

It would be really hard for a country to be recognized as independent and not sign onto the Geneva Conventions or abide by them even if they aren't a party.  They've also been incorporated into domestic laws and military manuals and are often recognized by countries as customary law. In that sense, the treaty obligations themselves have become customary international law. The exact extent of this obligation is still debated in the international law community (though the International Committee of the Red Cross** (ICRC) has a super nifty, pretty authoritative guide on customary international law in this area).

The Chemical Weapons treaty may be customary law on its own.  I'm just haven't previously been convinced that it is. The obligation to not use chemical weapons is clearly customary, but I haven't previously been convinced the obligations about stockpiling are yet. That said, this last debate on Syria may now convince me otherwise. Here's how:

States often used, relied upon and noted the Convention as a reason for not stockpiling. While this means they recognize an obligation not to stockpile, their reason for being legally bound appears to be just the treaty. They didn't seem to suggest there was an independent reason for not stockpiling these weapons, and other states didn't seem to suggest the mere stockpiling by these states was a danger.  When the US talked about Iraq having Weapons of Mass Destruction, it was accompanied by accusations that Iraq was likely to use them in the future because it has used them in the past (something we apparently didn't mind so much the first time but really feared happening again). There have been very few discussions about stockpiling weapons that weren't actually about the use of chemical weapons. On this, states often did note independent reasons for not  using chemical weapons, but the stockpiling wasn't really discussed as much.

With the Syria case, though, the US came out hard against the stockpiling by Syria, stating that for Syria to avoid US intervention, it needed to turn over and destroy its chemical weapons. Syria denied even stockpiling, suggesting it finds itself bound to not stockpile chemical weapons as well.  With both the US and Syria suggesting Syria was bound not to stockpile weapons, and most of the rest of the world agreeing or remaining silent, it would appear we're at the point where stockpiling weapons is itself an independent obligation.

But, in my opinion, that's a pretty recent development. Even the US's position on Syria's chemical weapons was initially solely about their use. We were going to invade not because they had chemical weapons, but because they used chemical weapons.  This discussion has evolved, though, this week and I think I would now say even having chemical weapons may be customary international law.

This brings me to one more important point about customary international law:  sometimes it's really hard to know what is and isn't customary international law.  We can sometimes know for sure what is customary international law, because a court with importance has said so (i.e., the International Court of Justice or the International Criminal Triubnals for Rwanda or Yugoslavia), or because there's really clear evidence that is indisputable. A lot of times, though, international law scholars can make a case but it's not an air-tight case.  We have evidence, we think it's pretty sound, but maybe it's not.

Also, sometimes the idea of customary international law is massively overused.  International law is only binding if a state consents to it. Both customary law and treaty are ways in which states consent. People want things to be legally binding so in the absence of a treaty, they say it's customary international law. My old law professor used to call this the "Tinkerbell doctrine": If people - meaning activists and scholars - clapped their hands enough and said they believed, the law could live.

I'm a little more skeptical on this, and think we need to be protective about what constitutes customary international law because that protects the democratic process in our own states. If the state is going to agree to be bound by something, it is constraining its ability to respond to internal, democratic changes in the future. That should be treated very carefully.

So, I'm not one to necessarily jump on a customary international law bandwagon, no matter how much I want something to be customary international law. That's why I said countries (meaning not parties to the treaty) can justify stockpiling weapons, but not using them.  I should have been a little clearer on all of that in the last post. Sorry!


Either way, it looks like we have a breakthrough and Syria may be joining on to the obligation not to stockpile, which it denies doing, and all of that makes the customary international law on stockpiling a little more likely.

*I'm using country and not the technical term "state" because most of my audience is from the US and I don't want to have to explain that one right now.

**Fun Fact: While everyone things the Red Cross is a religious symbol, which is why the ICRC now also has Red Crescent societies, it wasn't intended as such. The Red Cross was actually intended to honour Switzerland. This may be simply because the founder of the ICRC, Jean-Henri Dunant, was a Swiss citizen, but it's also significant because Switzerland was a neutral country and the ICRC remains neutral in battle, serving both and working with both sides of conflicts with complete immunity (that's a treaty obligation, but it's probably customary law). Oh, and the Geneva Conventions were obviously signed in Geneva, which is in Switzerland (yes, it's also in Ohio, but that one didn't host the ICRC founding). the Ohio Geneva and inverting the colors of the US flag would just be very confusing).  So the Red Cross is just the Swiss flag with inverted colours. Or colors, depending on where you live.

What Makes Chemical Weapons so Special (For the Non-Expert)

Let me start with noting the obvious: I have some seriously awesome, smart, amazing friends. And the more obvious: not all of them know about international humanitarian law, or more specifically the laws of armed conflict.

This is partly the product of where I grew up:  the discussion on international law in the US is a bit crazy. As one of my colleagues and I were taking the mick out of each other this morning, he said something I could really argue with:  "You can't go to an American on international law - they don't even think it exists!" (Okay, I realise no one will laugh at that unless they actually do international law; and in fairness, he went on to a much more personal and funny insult, but that was his set-up.).

This is partly the product of our history. We were isolationists.  When we stopped being isolationists, we were a world superpower, and then we were the world superpower.  So we tend to think we're not bound by anything other than whatever came out of the POTUS's mouth (or the SCOTUS's mouth, and sometimes Congress's maybe; and if you're Rick Perry, you think you're only bound by the latest thing to have come out of your own mouth).

But also, lots of other, non-US people just don't about the laws of armed conflict.  So the past few weeks, I've seen a lot of facebook posts / comments along these lines:

• "Assad's been bombing people for years. What makes chemical weapons so special?"
• "How can we hold him to a treaty Syria isn't a party to?"
• "Does this mean we can bomb anyone who messes up in war?  Because we should be careful about that..."

Now, morally, I kind of agree with the first comment, but legally, there's answers to all of these questions and the answers relate to the laws of armed conflict.  Now, I'm not going to suggest an answer to the problem of Syria but I think Syria presents a really good opportunity for people who don't pay attention to international law as part of their job to start to understand international law just for their own benefit.  So, here's my super brief answer on "what makes chemical weapons so special."  I could write a longer piece, but I can only justify about 20 minutes of procrastination on my PhD chapter.  Also, as I wrote, I could hear the voices of my friends who study this in my head, so I have a few notes for them in [brackets]. Just ignore those if you don't study this.

Let's start with some basics:

There are two types of international law: treaties and customary.  Customary international law develops when states act in a consistent manner and do so because they believe they are legally bound to do so even without a treaty.  To see the consistent state manner, you can look to both action and omissions, and can rely on public statements and declarations that accompany either the act or lack of action. Once something is customary international law, it's binding on all states except those that have consistently objected to the development of this rule.  This can develop slowly taking decades or it can be quite quick.

Understanding how customary international law works:
To give an example (which is really really really not real), let's imagine that tomorrow, the US decided that because of all the peanut allergies (which I know are really really real), it was going to ban the growing, selling, producing or importing of peanuts to protect human life.  Then it started telling other states they should do it too, that ultimately if they take the right to life seriously, they must do this. And a few other states - hippy-dippy liberals like Canada, NZ and France and Sweden - decided to ban peanuts out of respect for the right to life.  That would not be enough for customary international law.  But, if over the course of about 3 years, almost all the other states - say, 135 of the 193 UN members - all worked to ban and eradicate peanut use as a threat to human life and health, and they banned sales, and they came out with statements saying that the production of peanuts was illegal not just within their own states but across the world.  Then, with 135, you would see an emerging norm or an emerging custom.  No one is quite sure if it's really custom or not, but it sure looks like it's getting there.  And then by year 5, 155 countries have done this.  They're all doing the things to ban peanuts and stop their transport.  And of the less than 40 countries who haven't, 20 don't actually use or have peanuts in their countries anyhow.  So they haven't taken any steps because they're looking at the rest of the world going "But we've never even had peanuts, they've never been in our borders, why is everyone so obsessed with peanuts?" So this takes us down to 20 states that are relevant to the peanut discussion and who aren't banning their import. Ten of these states just don't care because they wish we would focus on something more important like world peace or the real eradication of polio. But the other 10 do care and every time it comes up they go, "No. This isn't a real rule. You're all anti-peanut imperialists and we will not be bound by this rule."  At that point, there's enough consensus that the rule becomes a rule for everyone - the 155 that agreed, the 20 that it was never relevant to and the 10 it was relevant to but didn't care - except for the 10 states that continue to say it's not a real rule.  Now, let's assume Thailand with all their yummy peanut sauce is one of the countries that consistently objected so they aren't bound.

So what happens with Canada suddenly starts trading Thailand minerals for peanuts?  The law isn't binding for Thailand but it is for Canada, who was actually one of the first to help make this a law. Canada is violating international law.  They haven't signed a treaty, but they also weren't consistent objectors when the customary rule was developing.  So they have to live by the rule that was established.  They can't come in later and go, "Oh, shoot, but we don't like that rule anymore, so we won't abide by it."  They can, on the other hand, try to create a new rule.  But they can't just ignore the old one.

How Chemical Weapons are Customary International Law.
So, those are the two types of law.  Now why this matters to chemical weapon use.  Syria isn't a party to the relevant treaties [note to IHL-nerds: yes, some could argue that the use of chemical weapons is torture and prohibited under Common Article 3 of the Four Geneva Conventions, but this post isn't for you, so stop trying to make it all complicated; yes, Dan and Sukrit, I'm talking to you.]. So, Syria can only be bound to not use chemical weapons on civilians if there's a relevant customary international law.

And there is. (Otherwise, this post would've ended a really long time ago.)  The laws of war have two relevant rules for this that are not customary for all wars. [note to IHL-nerds: yes, I know wars and armed conflicts are different, but again, this post isn't for you, so stop being nit-picky. Dan, Sukrit, and Catherine.]

Now, war is bad. Everyone knows that. The laws of war are intended to make war less bad, meaning less harmful to the innocent civilians and as humane as you can make war for the people fighting it.  It accepts that people will die.  The laws accept that people will die but it requires states to try to make sure people only die to the extent necessary, and if they do die it's from as humane an act as possible.  I know it's perverse, but countries are sometimes perverse: they don't want the effects of war, but they like blowing things up and conquering each other.  So to hit the right balance, they developed rules that limit the impact on civilians.

The two customary laws that are most relevant here are the obligations when targeting, and the use of weapons that are designed to cause superfluous harm.

When you're fighting a war, the country has to distinguish between military and civilian objects. Military objects are those that by their nature, use, purpose or location make an effective contribution to the military effort of the other side, and whose destruction in whole or in part in the circumstances ruling at the time will help your side militarily.  It's judged by the circumstances ruling at the time, so if you have a big building and last week, the military was housing all their artillery, last week was a military target and you could try to destroy it.  But if this week, it's now a flower garden, it's no longer a military target and you can't hit it.  You can make mistakes, but your mistakes should be in good faith, so you should try to confirm in advance of launching a strike that the building is still being used for military housing. This is judged by the standard of your best efforts to the extent that doesn't compromise your military objective and advantage.  So you know the building was military housing, you've asked some people, you've done some scouting, and you've seen 30 guys in military uniforms with big guns entering and leaving and no one tells you it's now a flower market.  You can target it.  When it turns out you're wrong because the guys in military uniforms with big guns were just going in to buy their girlfriends flowers, you're not liable for being wrong.

Now, in addition to the things you can target, you can also target the people who are fighting you.  In a conflict between countries, that's the military versus military, and in a conflict within a country or between the US and groups like al Qaeda, you can target the military or non-military people who fight.  They don't necessarily need to be fighting right at that exact moment, but they need to be the people who are fighting.  [IHL law nerds: no, I'm not going to discuss the complexities of DPH. Suck it up, Dan, Sukrit, Catherine, and Gilles-Phillippe.]

You can never target civilians or civilian objects.  It's prohibited.  It's so fundamentally prohibited it's the most prohibited you can get in international law.  It's Charles Manson-Jeffrey Dahmer-Ariel Castro prohibited.

Once you've targeted a military thing, you have to use weapons that can distinguish between the civilian object and the military. Again, this isn't a strict standard, but you need to work to your capabilities, and if you can't completely distinguish, then you need to make sure that the impact on civilians doesn't outweigh the advantage you gain. This is a fluid thing and it's not a 1:1 ratio. If you are targeting something really important - like the Department of Defense ("DOD") - if you might be able to justify killing 100 or 500 civilians, whereas if you're targeting a checkpoint on the road, you might be able to justify killing only 1 civilian. If you can, you should alter your plans to make sure the damage to civilians is as little as possible.  So if a market is operating across the street from the DOD and it only operates from 9-5 and you can just as easily attack at 6 as you can at 3pm, and you aren't sacrificing your only opportunity to to attack well, you should wait until 6.  [IHL-nerds: yes, I just discussed both distinction and proportionality and tried to pretend it was just distinction, but stop being so mean, Sukrit, Dan, Catherine, Gilles-Phillippe, Selbi, Hanneke and Laureen.]

• The short answer:  Chemical weapons can't distinguish usually. That's the thing about chemicals - you spray them out and they just go and go and go. They're not like a bomb or a bullet, they don't hit something and then stick.  So, they don't distinguish and they aren't proportionate.

Why Chemical Weapons are Extra Bad Compared to Other Weapons.

The other relevant customary international law is a prohibition on the use of weapons that cause superfluous harm. We want weapons that kill as humanely as possible. Yes, bombs and bullets and tanks can leave you paralyzed, but they aren't designed to leave you paralyzed. They're designed to make you die (or get you to surrender).  Again, we know war is hell and we know that people will die, but we just want it to be as limited of a hell as we can have. So if something is designed to leave you in pain rather than to kill you, it's not legal.

• The short answer:  Chemical weapons aren't designed to kill you, or to kill you quickly.  They are designed to make you suffer. Sarin gas is designed to kill your nerves, making you writhe in pain until your body shuts off.  Yes, it can sometimes work faster than other times, but it's purpose is an evil, awful one.  It's designed to bring out the worst hell war can offer.   

Even Beyond the General, there's Probably a Specific Customary International Law.

No one justifies using chemical weapons.  We can justify owning them and stockpiling them as a deterrent, but no one actually justifies using them. Not even Hussein or Assad prior to, well, when they didn't like that rule anymore.  When they are used, they're denied (as we've seen in Syria), or people blame one another (as in Syria), or they are prosecuted.

Chemical weapons use is, thankfully, very rare, and no one actually goes around saying, "Dude, love the ability to use chemical weapons on people" or even "Seriously, it's totally fine to use chemical weapons."  Everyone says they can't / won't / don't and when they do, they still say they can't / won't and don't.

You can compare this to bombs and bullets. No one ever goes around saying "bullets are illegal! So are tanks and bombs!"  And by "no one" I mean no one other than pacifists and no one speaking on behalf of their country.

So we have a pretty consistent state practice (not using chemical weapons) with a definite assertion that it's illegal (shown by denials when they are used).  So chemical weapons are also specifically prohibited, making them different than other weapons.

Who Enforces This?

Whoever is using the chemical weapons is definitely breaking a law that it is definitely bound to not break and that it definitely knows that it is breaking.  Oh, yeah - I forgot to mention. The rules above also apply to non-state actors, so even though the US thinks it's Assad and Russia says it's the other guys, it doesn't matter.  Someone - whoever used the chemical weapons - is breaking the law.

Now, as to who enforces this... ummmmmm.... so, yeah, kind of no one, and kind of the UN Security Council (UNSC).  Which is why Obama feels that someone should and since he can't get the UNSC to do it, he will. Or might. Maybe. Depending on Congress and France say.

But just because it's not enforced doesn't mean it's not a law.  Think about how many times you've sped on your local highway!

On Graham and the FBI's Failed Fortune Telling

Lindsey Graham could make the Obama's adopting an additional puppy a political issue, so it's not surprising that he has decided to latch on to the fact that the Russian government raised an issue of the older Tsarnaev brother with the FBI as evidence of the FBI's failure.  Several twitterers have also claimed that the Boston bombing was Obama's fault.  I don't have time to deal with the crazies in this world, but I do have some thoughts on the FBI and its treatment of the older Tsarnaev.

First, we as a country can't predict everything that everyone will do.  It's the price of freedom.  There are countries where people fear talking badly of the President / Prime Minister / King / Supreme Leader.  In such places, people have a reason to fear.  They have seen their family members, their neighbors, their friends taken from homes because of whispered rumours about who supports who, who is sufficiently "patriotic" or sufficiently "good" or sufficiently "helpful" to the regime.  Doing human rights, you can spend years reading such stories.  For my LLM dissertation, I spent 6 months reading torture cases - what evil man can do to another man is detailed in such cases, and many of those cases start with a supposed threat one poses to the ruling regime.

Living in a free society - a truly free society - means the government doesn't monitor every conversation or email we have.  It doesn't monitor our every purchase, our every visit, our every change in belief.  This means we can't always know when something will happen.  This is as true of what Eric Harris and Dylan Klebold did as it is of what the Boston bombers did.  Freedom means you cannot predict every attack, and you cannot prevent every attack.  The only alternative is to up the monitoring we are all subject to, and it is, of course, necessarily reminds us of what Ben Franklin said: those who would sacrifice liberty for security deserve neither.

But, the FBI was given information from Russia on Tsarnaev, so it is legitimate to ask what weight should have been given to this inquiry.  There are disputes about how often or who was given information, but let's be clear: the information was from Russia involving a Chechen who was in the US because as a child his family needed to seek asylum.  The brutality of the conflict in Chechnya is well documented.  But the brutality did not stop when the war did.  Amongst those most likely to be targeted and harmed are human rights defenders.  The conflict is wrapped up in both ethnic and religious issues, particularly discrimination and self-determination, though these are not the only issues.

Discrimination against Chechens by the Russian government is widespread, and was cited in at least some news reports as one of the reasons.  For Russia to have concerns about an ethnic Chechen - particularly one that travels between the US and Russia - is not particularly surprising.  Any strengthening of Islamic faith could be seen as a threat.

The US cannot accept without question the call for investigation by countries like Russia.  To do so would be to import discrimination from another state and utilise it in the US. If the same logic was applied to Iraq, the US would have to accept any discriminatory calls against the Sunni minority.  For China, this would lead to heightened surveillance by the US against Uyghurs.  For Myanmar, this could force the US to discriminate against ethnic Rakhine or Kayin people.  The list could go on and on.  The very people who need us most - those who seek refugee status because of intense discrimination - would have that discrimination re-inflicted on them.

And make no mistake - to gain asylum in the US is not an easy thing.  It's a high standard and every year we deport a large number of asylum seekers.  It's a high burden to cross and it is specific to the individual's risk if they were to return home.

To inflict on such refugees the discrimination they faced back home without cause - a serious showing by the home country that there is reason for concern and that it is not simply discriminating - is immoral and unethical.

When the FBI was tipped off by Russia, Tsarnaev was treated as others on the watch list are.  He stayed on the list for one year and because nothing further suggesting concern occurred in that time, he was dropped.  To expect the FBI to do more simply because a discriminatory regime targeted someone in the ethnicity against which they discriminate is to do a disservice to the American dream, that one can escape persecution and seek freedom.  To ask the FBI to predict such abhorrent behavior in the absence of significant evidence is to ask them either to erode our freedoms or to become fortune tellers. And I, for one, don't believe fortune telling is an appropriate means of conducting national security.

I also don't think eroding our freedom is an appropriate means either.  I'm tired of people like Lindsey Graham saying they love America and it's freedom when what they mean is they loving being priviledged in America with its great privileges.  To love American freedom is to love the absence of discrimination, to love the equal treatment we enjoy, and to love the idea that you can talk to your brother in your own house without anyone listening.  This is both a great privilege (though it should be a universal human rights) and a great threat to the security of others.  It allowed Eric Harris and Dylan Klebold to plan the Columbine attacks, for Timothy McVeigh and Terry Nichols to develop the Oklahoma City bombs, and for the Boston bombers to plan last week's attack.

But unless you're willing to give up the right to privacy - that right to private conversations in one's own home without government monitoring and interferrence when they deem a conversation insufficiently patriotic - there's little in evidence that suggests the FBI could have done anything predict or prevent the Boston bombings.

Graham is trying to make a political issue out of a great tragedy because he has nothing else to offer the American public.  And that is, perhaps, the greatest disservice a politician can offer our country.

My 30 second rant on the Laws of Armed Conflict Discussion

Update:  Because I only had 3 minutes the last time I wrote this blog, I left off a necessary discussion of the National Defense Authorisation Act 2012. That is now included below.

I don't have very long to do this, but I had to quickly address Lindsey Graham's criticism of the Obama Administration.  Graham claims Obama should hold Dzhokhar Tsarnaev, one of the Boston bombers, as an "enemy combatant." This, according to Graham, would allow for better questioning.

This is like the "Cliff's Notes" version of what could be a much more detailed answer to Graham's criticism.

Here's the thing, that category doesn't exist under international law and its domestic codification - which is actually "unprivileged enemy belligerent," and the very existence of which may violate the US's international obligations - isn't applicable to Tsarnaev, who is a US citizen.

The applicable US domestic law is the Military Commissions Act of 2006, an attempt to legitimize the very illegitimate Bush Administration's treatment of alleged members of al Qaeda and other random people they were certain were the "worst of the worst" despite the fact that they've now let most of them go without trial.*  There, the law makes it clear that an enemy combatant is an unprivileged enemy belligerent." This is actually a non-sensical category if you consider this is supposed to somehow align with international law.

The Military Commissions Act provides for the establishment of military commissions (it is rather shocking that the US law name actually does relate to what the US law does).  The law provides two separate definitions to create an "alien unprivileged enemy belligerent."  The first is "alien" meaning an "individual who is not a citizen of the United States."  and the second is an "unprivileged enemy belligerent" which means a non-privileged belligerent who

(A) has engaged in hostilities against the United States or its coalition partners;(B) has purposefully and materially supported hostilities against the United States or its coalition partners; or(C) was a part of al Qaeda at the time of the alleged offense under this chapter.

Who are "privileged belligerents"?  Well, the domestic law doesn't actually define that.  International law does, though, kind of.

Technically, belligerents are the parties to a conflict.  It's supposed to refer to the states. The belligerents in World War II were Germany, Japan, the US, Russia, France, the UK, etc.  Applying it to a non-international armed conflict (NIAC) like that of the US and al Qaeda, one would assume the belligerents were the US and al Qaeda.  So, one has to assume that the US legislature actually meant to mean the people fighting because you can't try a category of people - just individuals.

Combatants under international law is a specific category. It refers to the people who fight in an international armed conflict. In a non-international armed conflict - like that between the US and al Qaeda or between Colombia and FARC - the designation for the non-state fighters is that of civilians directly participating in hostilities.

Now, combatants get special privileges under international law. They have the right to kill without being tried (as long as that killing is in line with international law, so no killing civilians or surrendered or injured people). They also get special protection if captured - the prisoner of war or POW protections - like specific pay for their work and an allotment of cigarettes while being detained.

But someone who would normally be entitled to these privileges can lose those extra protections.  For example, if they are caught while engaged in spying, they don't get POW protection. Importantly for this case, if they are fighting against their own state, they are not protected as POW.

People who fight against their own state are operating outside their protection. They can be tried for things they did in the conflict.  But (a) this whole category and discussion of POWs and immunity for killing only applies in international armed conflict, and (b) losing the POW protection doesn't mean that the person has no protection; they just don't have the special protection.

For non-international armed conflicts, those engaged in fighting against the country don't ever lose their protection.  For starters, they don't have special protections.  There's no immunity for killing; there's no guarantee of cigarettes; and obviously, because it's often between a state and its own citizens (think Syria and Colombia for more traditional forms of non-international armed conflict), it is specifically designed to apply to people who fight against their own country.

The guarantees for the non-government actors in a non-international armed conflict include the right to not be tortured and the right to the guarantees of a fair trial.  This requires, at least, a presumption of innocence, an independent, impartial and regularly constituted court, information on their accusation, right to a speedy trial (or a "trial without undue delay"), the right to examine eyewitnesses. and the right to, and means of, defending themselves. This last one includes a right to legal assistance.

Their rights also include the right to remain silent and to not be compelled to testify against themselves or to confess guilt.

So that's what international law of armed conflicts is supposed to look like. Under domestic law, though, we've just ignored the international realities and created an "unprivileged enemy belligerent." A non-sensical category that mixes legal terms to create something specific we want that isn't supposed to exist.

The scope of IHL is limited, though. It applies only where there's ongoing armed conflict.  There's a physical and geographical scope to armed conflict.  You can't actually declare a global war - on anything - and have these laws applicable.  There's some technicality to this issue, but I'm not going into it.  But for the laws of armed conflict in this area to be applied in the US, an armed conflict would have to be ongoing in the US.

But this "alien unprivileged enemy belligerent" category now means that the US can try people by military commission, like those most famously used at Guantanamo Bay.  And it's this that Graham wants the Obama Administration to apply to Tsarnaev.

But more or less only alien unprivileged enemy belligerents can be tried like this.

If you're a US citizen - and Tsarnaev is as of last year - you cannot be tried by military commission, with one potential brief exception that is massively constitutionally dubious. The one brief exception comes from the National Defense Authorisation Act for Fiscal Year 2012 (NDAA, see section 1021-1022).

If you are associated with al Qaeda, Taliban, "or associated forces" the statute says that you can be held without trial "pending disposition under the law of war." The problem with this in relation to Tsarnaev is two-fold. First, you have to know someone is associated with al Qaeda.  You can't make that presumption, operate under it, and then later go, "Ooops - but we're gonna introduce all that information at trial anyhow."  So the idea that you first treat him as an enemy combatant and then later come back to it and change his status has no basis in law.

Second, the constitutionality of this law hasn't been tested, but it's unlikely to be constitutional.  It would not be unconstitutional to an American captured in Yemen or Afghanistan, but it would be unconstitutional to someone in the US.

The only way for this to be constitutional to an American captured in the US - and then it's still slightly dubious - would be for the US to be declared in a constant state of emergency. If you don't want us to be a constant state of emergency, the only way for this to be constitutional - to be able to strip an American citizen of their constitutional rights when they are on US territory - would be to declare an individual in the state of emergency.  That doesn't make any sense.  It's a legally vapid concept.

So Graham now wants the Obama Administration to ignore the Constitution, the laws of war, and the statutes he passed.  Why?  Because he wants information.  But (a) torturing people or questioning them without a lawyer doesn't necessarily mean you'll get that, and (b) that's pointless because he can still give information.

There is a provision in US law that would allow the government to accomplish what Graham wants  (questioning without a lawyer) independent of Graham's choice of action (illegal and unconstitutional treatment of a US citizen). There is a "public safety" exemption that allows for the government to delay telling a suspect their Miranda rights. I'm not going to really get into this because there's a lot out on there on this issue, but the DOJ indicated they would utilize this exemption (it appears there is a challenge coming on that from the Boston Federal Public Defender's Office**).

But  it is worth noting that the Miranda rights - which are actually the Constitutional guarantees in the 5th and 6th Amendments - exist independent of whether the person is informed of them. By being an American on US soil, Tsarnaev inherently has the right to remain silent.  If the government starts to question him and he's smart or watched any procedural shows, the fact that he hasn't been informed of his rights won't deter him from invoking his rights.  He'll have a right to remain silent and a right to an attorney even before he's informed of those.

That doesn't change.

No matter what Graham wishes.

*And OMG it costs $700,000 extra to keep someone at GTMO than a US federal prison?  And I have to listen to Republicans tell me I'm a big government spender?

Update:  Slate has a great piece on the Miranda issue here.

**Another update:  I want to give a big round of applause to the Boston Federal Public Defender's Office! MSNBC is reporting that they are representing Tsarnaev and are challenging extended use of the suspension of Miranda rights. Thank you for standing up for justice.

On Christianity and Homosexuality

I really wasn’t going to discuss religion on this page, but … a few friends posted on facebook A Teen’s Brave Response to "I’m a ChristianUnless You’re Gay" and as I quietly wiped away the tears this young man’s story inspired, I thought about Kayla and Kylie (not their real names) and felt inspired to write.

Kayla had transferred into my high school, which left her at a social disadvantage for a school where most of our 360 classmates had known each other since fifth grade. Kayla is quiet so while I knew who she was when we graduated, I’m not sure I ever had a real conversation with her in high school. I don’t know when she joined us, but I know she was in my twelfth grade psychology class. I know because over a year later, while attending the same undergraduate, she came out to me. Then she told me a story I hadn’t really remembered. Please keep in mind that this was the mid-1990s, before either Ellen or Rosie had publicly come out of the closet. Mr. M., our psychology teacher, had started our class on whether gay people should be allowed to adopt children by acknowledging that every year this was a difficult subject. Every year, he said, someone would come up to him after class and tell him he was gay, and Mr. M. wanted students to know at the outset that if they needed someone to talk to after this class, he was there. Even while he said this, though, I looked around the classroom and was firmly convinced no one there was gay. Surely, we would know right? I mean, we had been in school together for around seven years, how could we not know something so fundamental about a person? Plus, weren’t gay people supposed to be obviously gay?  Weren’t you supposed to be able to tell they were gay by the clothes they wore or their hairstyles?

Now virtually every person in my hometown would’ve claimed to be some type of a Christian.  We had something like 6 Catholic churches, 2 Methodist churches, a Lutheran, a Seventh Day Adventist, a Presbyterian, and some others thrown in. And those are just the ones I can name off the top of my head. I had been raised in the church and spent most of my high school time – sans a period towards the end when I was an atheist – professing Jesus Christ as Lord and Saviour. Yet, what came out of my friends’ mouths was shocking.  Sure, my parents didn’t like gay people, but they at least tolerated them.  They recognized they were human.  And if they were human, didn’t they have the same right to love and marriage and children and family as the rest of us did?  I mean, I’m not sure both of my parents believed all of this at the time, but they at least recognized the humanness of gay people and I made the rest of the connection on my own.  My classmates did not.  I was alone in my defense of gay parents.  After (or maybe during?), someone said that I must be gay and I remember replying that if I was, there was no way I would’ve been able to defend myself. I would’ve remained silent and alone.  That might not be true – I’m an emotional extrovert and I can’t imagine I wouldn’t have burst into tears during the debate if it had been that personal.  But it wasn’t personal – it was theoretical.  I was, however, concerned that others would also think I was gay and wanted to be clear that I was not.

When I got to university, I joined InterVarsity Christian Fellowship and a sorority.  I think these two things led Kayla to wait a little longer before telling me she is a lesbian. Or maybe she just needed a little more time before she felt she could tell people from her old life. I was only the second person from my high school to know – Mr. M. was the first.  I vaguely remembered the class; she remembered it in detail. I was the only person who didn’t make her feel like a freak.

I wondered then if my classmates would have said things differently if they knew someone in the class was gay. Would they really have been so harsh in their word choice? Would they really have suggested she was a freak?  That someone was inherently wrong with her? That she would be damaging her children? That she could turn her children gay?  I can’t speak for my high school classmates, but I generally think of them, on the whole, as caring and thoughtful individuals.  Sure, there was some bullying (though thankfully not as bad as what I’ve heard of in other schools, nor as bad as Hollywood portrays in their fake high schools), and high school students can be cruel (myself included; apologies to CL for my ill-spoken and unwarranted words), and there were clearly cliques. But, by the time we graduated high school – and definitely all these years later when we’ve reconnected as adults – my high school classmates seemed to really come to care for one another. As a class, we had faced the deaths of friends, the deaths of parents, illnesses, puberty, prom, and obviously all our first heartbreaks. In the end, we actually wanted to see the others succeed and be happy.  So would my caring classmates – the ones who spent two days celebrating our 10 year high school reunion with more honest conversations than we probably had in all our years of schooling; the ones who still send me encouraging emails or fb messages after a bad day on the PhD; the ones who celebrate each other’s births and weddings and engagements and professional successes – would they have reached out to Kayla if they knew they the pain they had caused her?

Kayla deserved better from our class.  She deserved better even from me because while I may have recognized the humanity for theoretical humans, I hadn’t recognized the pain that someone was suffering in front of me. I had never questioned the stereotypes; I had never sought to know the reality.

Kayla was the first friend to come out to me as gay. A few others had declared bisexuality, and later more would do so.  Generally, each declaration was followed with a simple question: “So, do you think it’s a sin?”  I find being an open Christian leads a lot of people to question me about sin – or to confess their own perceived shortcomings. It also leads to a lot of questions about life, God, and religion.  In law school, girls would tell me, “I used to be a good girl like you, but then I met this one guy and fell in love…” or “I used to be a Christian but then…” or “When I was in eighth grade, I stole…”  or “How can you be a Christian and …”

When the Christian Legal Society adopted national requirements that leaders not be gay, it opened a can of worms within the chapter of which I was then President.  The head of Out & Allies asked me what I was going to do about it.  The chapter decided – after a contentious debate – that we wouldn’t adopt the national guidelines and we would turn in our credentials. When I stepped down as President, though, the new Presidents negotiated our membership with reworded bylaws. It would still exclude gay people from leadership but would also list other sins that were equally bad, like pride and heterosexual sex outside of marriage.  But having been in Christian leadership for over six years by then, I knew I would never be asked about my own sexual purity; I would never be asked to step down because I was too prideful or too arrogant or too … well, anything, really, because I wasn’t gay and I was a Christian. Our Vice President at the time was engaged and no one had once questioned her about her sex life. I dated a high number of men in my 3 years of law school and I was never asked about my sex life.  But if I had been gay, the mere “lusting in my heart” for another woman would have likely disqualified me; I most certainly would have been subjected to routine questioning to ensure I was “pure” enough to be a leader. So I left CLS.  I couldn’t talk about the love of Jesus for every human being while being a part of an organization that automatically created a second-class citizenry.  I retained my Allied status in Out & Allies and today remain proud of the way my life is reflected in my law school accomplishments: member of journals; former President of CLS; Ally; and, yes, my name even hangs on a plaque in a bar across the street from our law school.

I have not always handled my friend’s comings out well.  When a guy I had once dated told me many years later that he had a confession, I expected to hear he had never gotten over me. Instead, he told me was gay. I was initially less than gracious. I had mourned the end of this relationship for years, not understanding what had gone wrong, and his being gay made me feel that the chemistry I had felt was a lie. It also made me angry that he hadn’t told me sooner, thereby explaining what had always felt unexplainable. When I realized I had acted badly, I tried to rectify it, but even then it just ended in my lecturing him about how I didn’t find sexuality something he needed to ‘confess’ to people. After all, I don’t go around ‘confessing’ that I’m a girl or white or anything else that I consider just an intrinsic part of who I am.  Yeah, super gracious. 

I don’t remember exactly what I said to Kylie, a friend who came out to me more than a decade after Kayla did.  I assume I said the same thing I have most of the other times: Thanks for being willing to share that with me. With over a decade of experience, I have found that to be the most honest and most necessary thing to say. I do remember, however, a conversation that came later. A drunk Kylie told me she wished she wasn’t gay.  Perhaps, she said, she really was broken.  And if she wasn’t gay, then she could be honest about who she was with her conservative family. Such sentiments had been repeated to me often over the years.  And then she asked it:  Is it a sin? Do you think I’m sinning? Here’s my answer for Kylie, and for the others who have asked as much to me:

Honestly, I don’t know. But more pertinently: I don’t care.

It’s important for Christians to understand what Kylie was really asking:  Do you think God loves me as I am or do I need to try to be something I inherently don’t think I am or am capable of becoming just to gain His acceptance?  And on this point Christianity is unequivocal: we are all broken somehow, and regardless of where that brokenness comes from or how it manifests itself, God loves us, and in the words of “Bridget Jones,” He loves us just as we are. Unconditional love. Acceptance. Forgiveness for what’s wrong; pride for what’s right. He loves us.

I have heard Biblical scholars who suggest that homosexuality is a sin and Biblical scholars who state that it is not under the new Covenant of Christ. I have had gay friends who are Christians and believe they are sinners and those who think they are not. It is an area I don’t think about very much because I’m not gay. Christ didn’t tell me to worry about whether other people were sinning. He told me to worry about my own sin.  Only when I’ve taken care of my own sins am I to worry about encouraging others not to sin. 

I have a lot of sin in my own life. I’m prideful and arrogant fairly often. I’m envious pretty much daily. I gossip when I should remain silent. I let fear control my responses to too many things. I am gluttonous. I lie, sometimes even to myself, and manipulate people, sometimes including myself. I withhold forgiveness over stupid things. At times, I’m lazy and procrastinate away God’s plans for me. I speak without thinking, and in doing so cause pain. And I reject God’s path regularly as I try to control things I have no control over, reject his call for me to do things I don’t want to do, and too often turn away when I feel He isn’t giving me what I think I deserve.

Quite simply, I am Jonah. 

Jonah, who was asked by God to tell the Ninevites to stop sinning. Jonah who told God he didn’t want to because he hated the Ninevites and he didn’t want them to repent. He wanted God to punish them. Jonah who ran away from God, boarded a boat and thought he could escape God’s calling by crossing the sea. And when Jonah ran from God, he really ran from God. He wasn’t just going from Israel to Turkey. Nineveh is now known as Mosul, Iraq, and Jonah boarded a ship to cross the Mediterranean, meaning the exact opposite direction. When God told Jonah to come back, and then started a storm that resulted in Jonah being tossed into the sea, Jonah was so freaking stubborn that he actually sat inside the belly of a big fish for three days because he didn’t want to do what God wanted him to do. He was hateful and selfish and arrogant and thought he could outlast God.  He was hoping God would blink first.  Talk about stubborn!  And that is me. 

I even talk to God like Jonah talks to God. When Jonah didn’t get his way – because he told the Ninevites to repent and they did, so God didn’t unleash his fury on them – Jonah threw a hissy fit. He actually told God he tried to forestall His grace for the Ninevites and he’d rather die than live after helping them. He sat in the dessert pouting like a child. When God tried to help Jonah understand his grace by using a tree, Jonah just became angrier, telling God he was “so angry I wish I was dead.”  I’m similar in my brutal honesty with God, telling him the other day – in worship! – that I hate the fact that English worship songs use music I’m not familiar with.  Then I realized I had said I hated something about worship and apologized. A few minutes later I was making a joke in prayer because God gave me a worship song where I knew the music but the lyrics were all changed, with the English church singing about how “My King rides a donkey.”  I couldn’t help but joke with the One who brought me all that.

Whether you take the Bible as literal or as part literal, part figurative, or as all fully man-made, you have to admit that it’s not a good sign of your religiousness when the character you relate to the most is Jonah.  Not Elizabeth or Ruth or Mary or the other Mary.  Jonah.  Because I’m pain-in-the-a$$ stubborn.

So I concentrate more on what the Bible says about pride, envy, and forgiveness than I do about homosexuality. I have too much on my own sinful plate to spend time worrying about whether something else I’m not engaged in constitutes sinfulness.  Too many planks in my own eye to be thinking about whether I see a splinter in someone else’s.

And Jesus loves me anyhow. This is something I believe with my whole heart.  And if I believe that with my whole heart – if I believe that in my most selfish, stubborn, unrepentant moments, Jesus loves me – how in the world can I consider myself well placed to hand out judgment to others? How can I possibly know what separates them from a relationship with God when nothing I do separates Him from me? And if I believe God loves each and every person He creates in his image – and I fervently do – than how in the world can I do or say anything less than loving to them?  If God wants a relationship with them – and I believe He does – how can I tell them He would reject who they are? How can I make them feel they are anything less than a reflection of God’s divinity and wondrous hand?

ICC Lubanga decision: some initial thoughts.

The ICC found Charles Lubanga guilty, as a co-conspirator, of enlisting children into the internal armed conflict in the DRC. The judgment is as important for what it says about international criminal law procedure as it is for what it says about Lubanga's crimes in the DRC. Two important notes:

• As my friend Nikki noted today, the OTP did not pursue conspiracy charges against Lubanga for ordering the use of rape as a tool of war. Instead, the charges were limited to the solicitation of child soldiers. I haven't followed this case closely - and must admit to not being an expert in international criminal law - so I'm not sure why this decision was made. Was the OTP unable to procure enough evidence? Did they consider the child soldiers issue a more serious crime? Did they want to stay conservative so as to ensure their first trial resulted in a conviction? I'm not sure about any of the answers to any of these questions, but would be interested in my friends who do know commenting below. I think these questions can help define the move forward.

• As my friend Indi pointed out, the Court slams the OTP in the judgment for failing to adequately supervise the investigations, resulting in a mishandling of evidence and the corruption of witness statements so they are no longer reliable. In para 842 (with relevant facts set out earlier), the Court states that "[a] series of witnesses have been called during this trial whose evidence, as a result of the essentially unsupervised actions of three of the principal intermediaries, cannot safely be relied on. The Chamber spent a considerable period of time investigating the circumstances of a substantial number of individuals whose evidence was, at least in part, inaccurate or dishonest. The prosecution’s negligence in failing to verify and scrutinise this material sufficiently before it was introduced led to significant expenditure on the part of the Court. An additional consequence of the lack of proper oversight of the intermediaries is that they were potentially able to take advantage of the witnesses they contacted." The criticism by the Court is therefore two-fold: (a) the OTP's failure to oversee the investigations adequately compromised the evidence, and essentially wasted the Court's time; and (b) the failure also put vulnerable former child soldiers in a position to be manipulated.

Since I don't have any answers for the first issue, I'm going to concentrate on the second. The criticisms of the ICC reflect interesting work done by Nancy Combs, who has concluded that most international criminal trials suffer from deficiencies in evidence and testimony that should call into question their legitimacy and accuracy. Amongst the problems that Combs identifies is that there is not a "smooth flow of questions and answers between counsel and witnesses." While counsel may ask for a detail about the events, the response they receive does not address that question asked, but instead may provide information on another issue or may not provide the court with relevant information at all. There are also contradictions by witnesses, who state one thing early in the process and another later on, or whose testimony overlaps with someone else whose story is vastly different. While Combs recognizes that some of the testimonial inconsistency is a natural consequence of time and memory, the prevalence of inconsistent and unclear testimony is widespread.

Yet, it rarely undermines the prosecution's case. According to Combs, inconsistencies are not always even acknowledged in judgments, and when they are, the inconsistencies are "unquestioningly" attributed to innocent causes. Convictions are then based, sometimes exclusively, on this testimony.

The problematic nature of this international legal precedence is exacerbated when we consider that international tribunals are specifically targeted to states that are unable or unwillling to undertake the process of prosecutions themselves. This is now a hard law requirement under the ICC's complementarity principle, but it was also evident in the choice of the establishment of previous international criminal tribunals and international intervention into transitional states. In a 2009 HRQ article, Laurel Fletcher and others established that prosecutions and international intervention are most likely to happen in states with a weak rule of law, a history of low public confidence in the judicial system, a history of international intervention, and that are new or weak democracies. The international community intervenes in these situations, requires, or highly encourages (to be read euphemistically) the use of prosecutions, sometimes through an international tribunal. Then, it fails to implement standards that we would expect from these states if they are to demonstrate their ability to provide fair and genuine trials. Instead, our international criminal prosectuions come to resemble the type of prosecution we most fear in transitional states: vengeance prosecutions.

The purpose of international criminal law is supposed to be to ensure the perpetrators of international crimes face justice. But justice cannot be had where the judicial process lacks credibility. Prosecutorial misconduct undermines the credibility of the process and harms the ultimate goals of the system: to ensure those who are most culpable are recognized as such and suffer the legitimate and just consequences of their action. If we utilize inadequate or inappropriate testimony or evidence to convict those we "just know" have committed atrocities because "everyone knows their guilty", we have given power to those who claim the ICC is nothing more than "victor's justice" or neo-Colonialism. We have also undermined the purpose of providing international criminal tribunals for states that unable or unwilling to undertake genuine prosecutions on their own because we haven't provided that genuine prosecution.

The international criminal legal system should be a light to those who have little experience with legitimate judicial processes. It should be both a symbol for those who struggle under domestic oppression and a teaching tool for those who seem uncertain about how to effectively implement the rule of law domestically. Currently, though, it does not accomplish this latter purpose and it undermines the former. With the current troubles with testimony, those who struggle with oppression can not hope that one day an , full and credible report of what has occurred will be made. They cannot hope that, like Nuremberg, one day the evidence used for a criminal conviction can also be used as a historical record to show what was known. They aren't provided the promise of learning the "truth, the whole truth and nothing but the truth," but rather they are being provided a judgment, order, and ultimately, history, that is based on a compromised system of justice. When the international criminal system is so fundamentally broken, it is difficult to imagine local citizens in contentious States Parties feeling protected and encouraged by the supposed "rule of law." And as a consequence, one of the recognized principle means of reparations in the field of transitional justice - historical acknowledgment - becomes disconnected from the realm of international prosecutions to which they are supposed to be intricately linked.

In the end, this type of misconduct by the OTP - coupled with the international courts' willingness to unquestionably rely on witness testimony - leaves a legacy for weak states that the rule of law is a fallacy and that prosecutions do not need to be fair and honest and transparent. And surely this, in and of itself, undermines the purpose of the ICC.

I'm sure this will be blogged elsewhere in the days to come and I'm looking forward to hearing some solutions or paths forward for the ICC and international criminal law.

Professionalizing Human Rights (in which I point out the slightly obvious fact that Invisible Children’s Jason Russell isn't alone)

Human rights is my first true love. Long before I knew the term "human rights" - and definitely long before I realized I thought boys were cute rather than cootie-filled - I understood the concept. When I was about six, I gathered a few friends up to go collect money for poor children. I had seen a particularly sad story on the news – well, particularly sad to my six-year-old brain – about poor children. I don’t know if it was that they wouldn’t have food or they wouldn’t have toys for Christmas, or that they had lost their home in a fire, but it was the kind of story that my thirty-something brain is now used to seeing a couple of times a year on the local news. At six, my parents had already drilled into my head that I could do anything I wanted, and I wanted to help. So, we got a tin can and went around the neighborhood asking people to donate. Of course, I didn’t realize that I was living in a poor area of our city so a significant number of people who said they couldn't donate really meant it, some chuckling at us as they closed the door, likely thinking, "They don't realize they're poor! Silly kids." Then, there was a woman who told us we couldn’t collect money like this, that we needed to hand out receipts and have a register of all donors. That is true, by the way, but I was six so she could’ve just given me fifty cents and allowed me to learn about the intricacies of charitable donations and finance when I was seven or eight.

But, a few people were highly encouraging. They told us how wonderful we were for being such giving and caring children. I don’t remember how much we ended up collecting that day – probably just a few dollars, but my dad took it to some organization to ensure it got to the poor people I had seen on TV. I felt good about what we had done; I felt good about the kind of a person I had become (yes, at six I had “become” all that I needed to in my mind - I mean, I needed to get taller and learn to put on makeup at some point, but intellectually, I was obviously super smart and all I needed to become).

By eight years old, I had decided I wanted to be President of the United States so I could end poverty and ensure peace throughout the world. It is a self-indulgent and idealistic dream, but it was an appropriate idealism and self-indulgence because, well, I was eight years old. And fair enough, my idealism and self-indulgence lasted until my twenties when I realized that world peace is a lot harder than Miss America contestants make it out to be and that human rights isn't about me. Until that point, though, I really thought that I could be the one to change the world. I would bring about lasting changes in Rwanda. I would get the former Yugoslavia to love each other again. I would shape little hearts and minds, build schools, feed the world’s poor, etc. I. I. I. Because I could change the world and only I cared enough to do it well and do it right.

At some point in my twenties, I realized that I was actually unlikely to accomplish much of anything close to my goals. I could accomplish something only by pairing up with other people who were intelligent, thoughtful, knowledgeable, creative, and dedicated. (This was not, by the way, a realization made from a point of humility or out of self-doubt. As I told an ex-boyfriend more recently than I should be willing to admit to, I really do consider myself to be kind of f-ing brilliant. Not on everything - I increasingly need a calculator for simple mathematics, but on the whole.) More importantly, any contribution I make is only relevant to the extent that it is the contribution desired by those who need my great solution.

If I decided I was going to feed the entire Middle East by developing pork farms, I would be useless. My great plan to eradicate poverty in the Middle East would be a waste. Similarly, starting a beef emporium in India would be a laughable solution to hunger there. These “solutions” are an obvious mistake to anyone who knows even the smallest bit about Islam, Judaism, or Hinduism. But, the principles at the heart of this lesson are lost when we get to more complex problems in human rights, international assistance and development. We lose our recipient-focus and it suddenly becomes all about the donors: it is the donors who determine the projects; it is the donors whose interests need to be met; it is the donors who dictate what should be done and who should be targeted and how they will rebuild a country, start building a country, or provide security and human rights to a state or community or group in need. Sure, they all “involve” and “engage” the “local community” in decisions, but the longer you work in human rights, the more you realize that so often that that “involvement” and “engagement” is not widespread, it’s not democratic, it’s not representative, and often it's not honest. It’s a manipulation of the local population to get them to agree that what you are saying you are going to do is what they actually need. Even if they've already had someone do exactly that same thing last month or two years ago. As David Damberger, founder of Engineers Without Borders Calgary, pointed out in a Tedx Talk, this leads to the rebuilding of wells in cities that had a well built there five years ago but because no one trained the local population how to maintain the well, it no longer works.

In the last month, I’ve felt a little pelted with the egocentric nature of some in the field of human rights, development, and international aid. One only needs to spend a little time on Stuff Expat Aid Workers Like to get a sense of the me-ness of the field, but I love SEAWL for its self-critical snarkiness, so it never sends me on the downward spiral of questioning the professionalism of human rights or railing against the current status quo of our field. Instead, it started when I read a fantastic report from the International Legal Assistance Consortium about their Assessment Mission to South Sudan. In what at times is a quite scathing report, ILAC notes that most of the projects undertaken on rule of law in South Sudan are done so for the benefit and goals of the donor, not necessarily in view of the needs and desires of the indigenous population.

Then, I read this Q&A with Jason Russell, one of the founders of Invisible Children who narrates the viral Kony 2012 video. Russell and Invisible Children have been pilloried in the media and by human rights and humanitarian activists for the video. A collection of criticisms can be found here and here, and in a brilliant video by Ugandan Rosebell Kagumire that can be seen here. In this brief intro into Russell’s mind, we find two answers, which I think say more about him and Invisible Children than anything we’ve read in the media or on their website:

3: Where are you from and where are you going?

I am from San Diego California with an upbringing in musical theater. I am going to help end the longest running war in Africa, get Joseph Kony arrested & redefine international justice. Then I am going to direct a Hollywood musical. Then I am going to study theology & literature in Oxford, England, and then move to New York to start “The Academy” – which will be a school where the best creative young minds in the world attend.

4: Who is your biggest hero?

If Oprah, Steven Spielberg and Bono had a baby, I would be that baby.

Now, in fairness to Russell, I want to point out that this was released a year ago, well before Kony 2012, and perhaps he would change some of his answers. I’m not sure how old Russell is – I can’t find it anywhere in media reports or on Wikipedia, and so I’m done attempting, even though if I put my lawyerly sleuthing hat on I’m sure I could find it out eventually – but he was an undergraduate student in 2003 when he and his two mates went to make a video about Darfur and discovered that the LRA existed and had been abducting child soldiers for their campaign in Uganda. Jason, Laren Poole and Bobby Bailey decided they were going to free all the child soldiers in Uganda and they were going to do this by raising awareness of the situation in the US. Based on the time they were there in relation to my own life, I'm guessing they're about 30 years old and were 21 or 22 when they started this ride.

Unfortunately for them, Joseph Kony left Uganda three years after they decided they would track him down in Uganda, arrest him, and free the entire country. But why let a little fact spoil a good story and an ever gooder goal (yes, that gooder was intention)? So, the Kony 2012 film focuses pretty much on Uganda, leaving the impression that Kony is still a massive threat (he’s not), still operating in Uganda (he’s not), and that the only way we will save Uganda – or in Russell’s words “end the longest running war in Africa, get Joseph Kony arrested & redefine international justice” - is if Americans and other westerners buy a $30 kit so they can wear a bracelet and plaster Kony’s picture around… Cleveland? Washington DC? Colchester, England? All of the above, I guess. (It isn't.) Uganda? They don't really need posters of Kony, so … no need to be sending money there, I guess.

Now, it would be easy for me to just pick on Russell. After all, he compared himself to the hypothetical offspring of Oprah, Bono, and Steven Spielberg. And he declared he would help end the war in Africa and redefine international justice. I'm not sure how he thinks international justice works, but if he wanted to redefine it by ensuring a war criminal is arrested, he really needed to be involved sometime prior to 1994, or at least in the early years of the ICTY and ICTR. By now, arresting a war criminal doesn’t redefine international justice, unless that war criminal is Omar al Bashir and you’re getting to arrest the first sitting head of state for trial before the ICC. But, whatevs. Details, details.

The point is that Russell’s answers are all about what he is going to accomplish. Not partnerships, not service, but, rather, Russell is going to singularly (or in connection with the others at IC, I guess) end a war and redefine justice. Now, here’s the thing: unless you’re actually Ugandan, you’re probably not going to end a war in Uganda. You might be particularly important to process if you’re of the stature of Kofi Annan and are asked to mediate the negotiations. But, the heads of NGOs – particularly those involved in denouncing one side as war criminals – don’t get to mediate peace negotiations. That’s left for diplomats, because, well, they’re diplomatic and are less likely to make arrests and prosecutions a requirement of the peace process.

I was supposed to be in Uganda a few months ago to help in a training program on the oil industry. Because of funding cuts, I didn’t get to go, but I did help prepare the training program and advised on embedding human rights into two draft Petroleum bills. I also learned a lot about Uganda and what Ugandans are concerned with. Not as much as I would like, but I got a good sense of it because even though others had to find out exactly what the Ugandans wanted through extensive discussion with Ugandans, I wouldn’t have been able to do my job without some insight (and extensive meetings). Joseph Kony isn’t on the list.* Not really, anyhow – he might be there, but he’s pretty far down, as evidenced by the “growing outrage” in Uganda over the film. Because he doesn’t pose a threat anymore.

*I do realize that he is probably on the list for some people in Uganda, and this is not intended to be a statement on behalf of all Ugandans. I am not Ugandan, so it would be unwise of me to speak on behalf of them - they're able to speak for themselves - but that's the general, situational assessment I've made. And it seems to be backed up, at least from some news reports.

Is Kony a bad guy? Yes. Is he a war criminal? Probably (but I do believe in the presumption of innocence until conviction). Does that mean that Ugandans would be better off if he were arrested and brought to justice? Maybe in the justice-as-deterrence sense, but not in the immediate needs-oriented sense. Yet, Russell is resolute, rebuffing criticism and telling NBC’s Today show that “[w]e can all agree we can stop him this year. … We’re not going to wait.” So what’s keeping Russell’s commitment to arresting Kony alive? My guess – with particular insight from that interview? Russell’s needs. Not Uganda’s, but Russell’s.

I wish the problem was limited to Russell, and then I could just join in the fun with those making snarky comments about the white guy from southern California with a saviour complex who is, probably unwittingly, a great patsy for the military industrial complex in the US. Instead, the ILAC report on South Sudan indicates that there are a lot of Russells out there in the international aid and humanitarian business. Here are a few highlights from the report:

To address the lack of judicial manpower, the Chief Justice has proposed hiring an additional 100 judges. Given the lack of lawyers in the country, it is unclear where qualified personnel can be found to fill these positions without decimating other institutions. UNDPKO apparently has funding to hire more than 40 new judges and prosecutors, including a majority of non-South Sudanese. … However, under the current restrictions on the UNDPKO program, these professionals will have limited functionality, and it is unclear if they will provide any significant assistance to the beleaguered judiciary.” (pg. 12)

So, UNDPKO has the funding to provide individuals who will ultimately provide no real relief to the South Sudanese judiciary?

“First, a tremendous number of international organizations, NGOs and contractors ostensibly have worked on constitutional and rule of law issues in South Sudan before and after independence. If their reports and websites are to be believed, each has accomplished remarkable feats, made all the more remarkable by the fact that many seem to have accomplished the same feat.” (pg. 20)

“Why has this occurred? Based on our observations, three reasons emerge:

Some projects are driven more by the donor/implementer’s needs than the recipient’s needs. In this era of matrices, management theories, and deliverables, donors insist on tangible results for a project. Goals must be set and met, regardless of the situation on the ground. Accordingly, international consultants “assist” their indigenous counterparts … Boxes get checked for goals and milestones – set by donors – that are met.” (p.20)

In South Sudan, the bureaucratization of the technical assistance effort, coupled with the scarcity of committed indigenous partners, often has meant that projects proceed primarily to meet the bureaucratic goals of the donor/implementer, with little meaningful long-term impact on the South Sudanese system. (p.21)

I eliminated some of the other quotes that targeted specific organizations (in part, admittedly, because I may need to interview / work with them for my PhD research), but I found the entire tone of the report quite telling. There doesn’t appear to be that much difference between Russell’s treatment of Kony and that of some in the IGO and NGO community toward the rule of law in South Sudan. It’s not about servicing the client – unless you really believe the “client” in South Sudan is the UK, US, or Norwegian governments, or a mega grant writing organization. It’s about meeting the “me” needs of the donors. What do I want to see? What do I think would be important? What do I believe South Sudanese would benefit from? And what will prove that I am the one “saving” South Sudan?

Coming from a law background, I can’t help but believe that these attitudes harm not just the individual missions they are supposedly designed for, but also the perception of the benefit, reality and professionalism of what we do in the fields of human rights, international assistance and development. We are supposed to be field orientated around a professional service. In other professional service-oriented fields, though, the needs of the client are sacrosanct, not the needs of the service provider. As a lawyer, I can give advice based on what my clients want and need, but I can’t tell my client I’m going to franchise his business because I think franchising is important, or it's what I've been working on for another client, or because if he just trusted me a little bit, he would see it's real benefit and potential. The client gets to dictate what she needs and my job is to answer that with a quality product that provides her with protection and both short- and long-term benefits. Similarly, when you go into the ER (or A&E to my British friends) for a broken leg, the doctors don’t get to take out your appendix because they really want to bank more surgery hours. If I tell a doctor I've broken my legs, he'll give me the best treatment for my broken leg, not for some condition I haven't mentioned because I don't have it and am not exhibiting any symptoms.

Professionalism demands a set of ethics that puts the client at the heart of the work. You might have great ideas and grand plans for what you as an individual or you as an organization can accomplish in a community. Unless you know that your grand plan is meeting the needs and desires of your client, though, your greatness is useless. It is filling up a me-me-me need that you have, but it’s not addressing the client and therefore it’s not actual service.

My six- and eight- and eighteen- year-old selves were all about me. My feelings, my goals, my need to change the world. At some point in my twenties, though, I realized that human rights isn’t about the good internal feeling you get when you hand someone a bowl of food at the soup kitchen. It’s about serving the people not because it feels good, and not because at the end of the day I get some great pictures and some weak praise, but because it is what elevates their human dignity. It’s about figuring out how to get the guy in the soup kitchen that bowl of soup (or something more fulfilling and healthier) in a way that is more regular, more sustainable, and more addressed to their needs and their human dignity than the daily trip through a soup kitchen.

The great Woody Hayes (Go Bucks!) once said, “Any time you give a man something he doesn't earn, you cheapen him. Our kids earn what they get, and that includes respect.” I don’t actually agree with that statement because human dignity demands that we sometimes ensure people have basic necessities so they have the opportunity to find their inner strength, but I do think that we can alter the quote a bit and provide at least one guiding principle for human rights ethics and professionalism:

“Any time you give a man, woman, or community something they don’t need and desire, you cheapen them.”

If we put that at the heart of our work, perhaps we'll stop thinking about our own needs and desires - to ensure the rule or law or to transform international justice - and start focusing on the needs of those we profess to serve.