BBC Graphic June 2011

A previous post noted a recent article on China’s claims in the South China Sea. The most knowledgeable person I know on this issue is my dear friend and former Georgetown colleague, Dr. Charles E. Pirtle. Professor Pirtle was a mainstay in the School of Foreign Service, where he served as an Associate Dean and taught political geography for over 20 years– including the required course, “Map of the Modern World.”  He offers the following comments:

I would like to make just a few brief points about this issue. First, there is nothing new about this claim. China set forth its claim to all the islands located within the “cow’s tounge” in its 1992 law on the Chinese Territorial Sea and Contiguous Zone. My “old” Map students should recall that I used a map similar to the one used here that showed China’s claims to virtually all of the South China Sea. That map can be found on p. 120 of Michael Klare’s book, “Resource Wars,” published in 2001. Second, the outline of the “cow’s tounge,” which consist of nine dashed lines around the islands, rocks and reefs of the South China Sea, first appeared on maps issued by the Nationalist Government of China in 1947; they were just maintained by the Communist Government when it took power in 1949.Third the issues raised by these claims are just one part of a multitude of different disputes that China has with its neighbors and the international community over sovereignty, jurisdiction, and the balance between coastal-states and maritime state rights in the South China Sea. For those interested, read Peter Dutton’s recent article, “Three Disputes and Three Objectives: China and the South China Sea,” in the current (Autumn 2001) issue of the Naval War College Review, which is available on-line.

Baltasar Garzón

An excellent editorial in the New York Times reports on the strange trial of Spanish Prosecutor Baltasar Garzón:

Terrible crimes were committed during and after Spain’s 1936-39 civil war that no court has yet examined or judged. No one knows how many people were taken away, tortured and murdered. Now, one of Spain’s top investigating magistrates, Baltasar Garzón, is on trial for daring to open an inquiry into those atrocities.

Spain is now a vibrant democracy, but Judge Garzón’s trial, which opened last week, is a disturbing echo of the Franco era’s totalitarian thinking. He faces criminal charges that could suspend him from the bench for 20 years for defying an amnesty enacted in 1977 to smooth the transition to democracy. He rightly counters that under international law, there can be no amnesty for crimes against humanity and that unsolved disappearances — thousands of mass graves are unopened — constitute a continuing crime.

In 2008, Judge Garzón briefly began an official inquiry, ordering the opening of 19 mass graves and symbolically indicting Gen. Francisco Franco and several former officials, none still alive, for the disappearance of more than 100,000 people. An appellate court shut the inquiry down. The next year, two far-right groups brought criminal charges against the judge for defying the amnesty law. The government’s prosecutor argued that no crime had been committed, but the Supreme Court accepted the case.

Separately, Judge Garzón faces criminal charges for rulings in two other politically charged cases. We cannot judge the merits of these. But criminal prosecution of magistrates for their rulings is rare in Spain, and could chill judicial independence.

Judge Garzón became famous for his prosecutions of Basque terrorists, Argentine torturers, Chile’s former dictator, Gen. Augusto Pinochet, and Spanish politicians. His powerful enemies now see a chance to end his career.

Judge Garzón is undeniably flamboyant and at times overreaches, but prosecuting him for digging into Franco-era crimes is an offense against justice and history. The Spanish Supreme Court never should have accepted this case. Now it must acquit him.

The Los Angeles Times reports:

A federal appeals court has upheld a ruling that blocked the implementation of an Oklahoma law barring judges from considering international or Islamic law in their decisions.

The 10th Circuit Court of Appeals, in a ruling released Tuesday, affirmed an order by a district court judge in 2010 that halted the law from taking effect. The ruling also allows a Muslim community leader in Oklahoma City to continue his legal challenge of the law’s constitutionality.

The measure, known as State Question 755, was approved with 70% of the vote in 2010.

The law is an amendment to the state constitution and bars courts from considering the legal precepts of other nations or cultures. “Specifically, the courts shall not consider international law or Sharia law,” the law reads.

The appellate court opinion pointed out that proponents of the law admitted to not knowing of a single instance in which an Oklahoma court applied Sharia law or the legal precepts of other countries.

“This serves as a reminder that these anti-Sharia laws are unconstitutional and that if politicians use fear-mongering and bigotry, the courts won’t allow it to last for long,” said Muneer Awad, the executive director of the Council on American-Islamic Relations in Oklahoma.

Awad sued to block the law, contending that it infringed on his 1st Amendment rights. He argued that the law would stigmatize those who practice Islam and deny him rights available to those practicing other religions. For instance, he argued that the law would affect the execution of his will after his death because it instructs the judge to use Sharia law if his wishes are not clear.

Proponents of the law argued that it was intended to ban courts from considering all religious laws and that Sharia was simply used as an example. The appeals court, however, disagreed.

“That argument conflicts with the amendment’s plain language, which mentions Sharia law in two places,” the court opinion read.

The court ruled that Awad made a “strong showing” that he is likely to succeed in his challenge of the law. The ruling keeps the injunction in place as Awad’s lawsuit continues.

The appeals court took up the case after the Oklahoma attorney general’s office appealed the injunction order. “My office will continue to defend the state in this matter and proceed with the merits of the case,” Atty. Gen. Scott Pruitt said in a statement.

Sharia — which translates roughly as “path” in Arabic — is intended to guide Muslims to connect with God and is rooted in mercy and compassion, said Salam Al-Marayati, the president of the Muslim Public Affairs Council in Los Angeles. It governs many common activities, including fasting and daily prayer.

Al-Marayati argues that campaigns to ban Sharia present a distorted view of Islamic law. “They equate it with unjust and abusive practices originated by tyrannical regimes in the Middle East,” he said. “They use misconceptions about Muslims to misinform the American public.”

The 10th Circuit decision can be found here. A very wise decision.

Dean Carol Lancaster

Voice of America Host Carol Castiel interviews Georgetown University School of Foreign Service Dean Carol Lancaster and me about foreign policy challenges for the United States in 2012. Areas discussed include: China, Iran, the Arab world, Latin America, and the US defense budget.

1 Georgetown University    69%

2 Johns Hopkins University    60%

3 Harvard University    57%

4 Princeton University    44%

5 Tufts University    41%

6 Columbia University    40%

7 George Washington University    38%

8 American University    20%

9 London School of Economics and Political Science    12%

10 University of Chicago    8%

11 University of Denver    7%

12 Stanford University    6%

13 Yale University    6%

14 Syracuse University    5%

15 University of California-San Diego    4%

16 Massachusetts Institute of Technology    4%

16 Oxford University    4%

18 University of California-Berkeley    3%

19 New York University    2%

19 University of Michigan-Ann Arbor    2%

Earlier today, President Obama signed H.R. 1540, the “National Defense Authorization Act for Fiscal Year 2012,” and issued the following signing statement:

The White House

Office of the Press Secretary

For Immediate Release

December 31, 2011

Statement by the President on H.R. 1540

Today I have signed into law H.R. 1540, the “National Defense Authorization Act for Fiscal Year 2012.” I have signed the Act chiefly because it authorizes funding for the defense of the United States and its interests abroad, crucial services for service members and their families, and vital national security programs that must be renewed. In hundreds of separate sections totaling over 500 pages, the Act also contains critical Administration initiatives to control the spiraling health care costs of the Department of Defense (DoD), to develop counterterrorism initiatives abroad, to build the security capacity of key partners, to modernize the force, and to boost the efficiency and effectiveness of military operations worldwide.

The fact that I support this bill as a whole does not mean I agree with everything in it. In particular, I have signed this bill despite having serious reservations with certain provisions that regulate the detention, interrogation, and prosecution of suspected terrorists. Over the last several years, my Administration has developed an effective, sustainable framework for the detention, interrogation and trial of suspected terrorists that allows us to maximize both our ability to collect intelligence and to incapacitate dangerous individuals in rapidly developing situations, and the results we have achieved are undeniable. Our success against al-Qa’ida and its affiliates and adherents has derived in significant measure from providing our counterterrorism professionals with the clarity and flexibility they need to adapt to changing circumstances and to utilize whichever authorities best protect the American people, and our accomplishments have respected the values that make our country an example for the world.

Against that record of success, some in Congress continue to insist upon restricting the options available to our counterterrorism professionals and interfering with the very operations that have kept us safe. My Administration has consistently opposed such measures. Ultimately, I decided to sign this bill not only because of the critically important services it provides for our forces and their families and the national security programs it authorizes, but also because the Congress revised provisions that otherwise would have jeopardized the safety, security, and liberty of the American people. Moving forward, my Administration will interpret and implement the provisions described below in a manner that best preserves the flexibility on which our safety depends and upholds the values on which this country was founded.

Section 1021 affirms the executive branch’s authority to detain persons covered by the 2001 Authorization for Use of Military Force (AUMF) (Public Law 107-40; 50 U.S.C. 1541 note). This section breaks no new ground and is unnecessary. The authority it describes was included in the 2001 AUMF, as recognized by the Supreme Court and confirmed through lower court decisions since then. Two critical limitations in section 1021 confirm that it solely codifies established authorities. First, under section 1021(d), the bill does not “limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.” Second, under section 1021(e), the bill may not be construed to affect any “existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.” My Administration strongly supported the inclusion of these limitations in order to make clear beyond doubt that the legislation does nothing more than confirm authorities that the Federal courts have recognized as lawful under the 2001 AUMF. Moreover, I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens. Indeed, I believe that doing so would break with our most important traditions and values as a Nation. My Administration will interpret section 1021 in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war, and all other applicable law.

Section 1022 seeks to require military custody for a narrow category of non-citizen detainees who are “captured in the course of hostilities authorized by the Authorization for Use of Military Force.” This section is ill-conceived and will do nothing to improve the security of the United States. The executive branch already has the authority to detain in military custody those members of al-Qa’ida who are captured in the course of hostilities authorized by the AUMF, and as Commander in Chief I have directed the military to do so where appropriate. I reject any approach that would mandate military custody where law enforcement provides the best method of incapacitating a terrorist threat. While section 1022 is unnecessary and has the potential to create uncertainty, I have signed the bill because I believe that this section can be interpreted and applied in a manner that avoids undue harm to our current operations.

I have concluded that section 1022 provides the minimally acceptable amount of flexibility to protect national security. Specifically, I have signed this bill on the understanding that section 1022 provides the executive branch with broad authority to determine how best to implement it, and with the full and unencumbered ability to waive any military custody requirement, including the option of waiving appropriate categories of cases when doing so is in the national security interests of the United States. As my Administration has made clear, the only responsible way to combat the threat al-Qa’ida poses is to remain relentlessly practical, guided by the factual and legal complexities of each case and the relative strengths and weaknesses of each system. Otherwise, investigations could be compromised, our authorities to hold dangerous individuals could be jeopardized, and intelligence could be lost. I will not tolerate that result, and under no circumstances will my Administration accept or adhere to a rigid across-the-board requirement for military detention. I will therefore interpret and implement section 1022 in the manner that best preserves the same flexible approach that has served us so well for the past 3 years and that protects the ability of law enforcement professionals to obtain the evidence and cooperation they need to protect the Nation.

My Administration will design the implementation procedures authorized by section 1022(c) to provide the maximum measure of flexibility and clarity to our counterterrorism professionals permissible under law. And I will exercise all of my constitutional authorities as Chief Executive and Commander in Chief if those procedures fall short, including but not limited to seeking the revision or repeal of provisions should they prove to be unworkable.

Sections 1023-1025 needlessly interfere with the executive branch’s processes for reviewing the status of detainees. Going forward, consistent with congressional intent as detailed in the Conference Report, my Administration will interpret section 1024 as granting the Secretary of Defense broad discretion to determine what detainee status determinations in Afghanistan are subject to the requirements of this section.

Sections 1026-1028 continue unwise funding restrictions that curtail options available to the executive branch. Section 1027 renews the bar against using appropriated funds for fiscal year 2012 to transfer Guantanamo detainees into the United States for any purpose. I continue to oppose this provision, which intrudes upon critical executive branch authority to determine when and where to prosecute Guantanamo detainees, based on the facts and the circumstances of each case and our national security interests. For decades, Republican and Democratic administrations have successfully prosecuted hundreds of terrorists in Federal court. Those prosecutions are a legitimate, effective, and powerful tool in our efforts to protect the Nation. Removing that tool from the executive branch does not serve our national security. Moreover, this intrusion would, under certain circumstances, violate constitutional separation of powers principles.

Section 1028 modifies but fundamentally maintains unwarranted restrictions on the executive branch’s authority to transfer detainees to a foreign country. This hinders the executive’s ability to carry out its military, national security, and foreign relations activities and like section 1027, would, under certain circumstances, violate constitutional separation of powers principles. The executive branch must have the flexibility to act swiftly in conducting negotiations with foreign countries regarding the circumstances of detainee transfers. In the event that the statutory restrictions in sections 1027 and 1028 operate in a manner that violates constitutional separation of powers principles, my Administration will interpret them to avoid the constitutional conflict.

Section 1029 requires that the Attorney General consult with the Director of National Intelligence and Secretary of Defense prior to filing criminal charges against or seeking an indictment of certain individuals. I sign this based on the understanding that apart from detainees held by the military outside of the United States under the 2001 Authorization for Use of Military Force, the provision applies only to those individuals who have been determined to be covered persons under section 1022 before the Justice Department files charges or seeks an indictment. Notwithstanding that limitation, this provision represents an intrusion into the functions and prerogatives of the Department of Justice and offends the longstanding legal tradition that decisions regarding criminal prosecutions should be vested with the Attorney General free from outside interference. Moreover, section 1029 could impede flexibility and hinder exigent operational judgments in a manner that damages our security. My Administration will interpret and implement section 1029 in a manner that preserves the operational flexibility of our counterterrorism and law enforcement professionals, limits delays in the investigative process, ensures that critical executive branch functions are not inhibited, and preserves the integrity and independence of the Department of Justice.

Other provisions in this bill above could interfere with my constitutional foreign affairs powers. Section 1244 requires the President to submit a report to the Congress 60 days prior to sharing any U.S. classified ballistic missile defense information with Russia. Section 1244 further specifies that this report include a detailed description of the classified information to be provided. While my Administration intends to keep the Congress fully informed of the status of U.S. efforts to cooperate with the Russian Federation on ballistic missile defense, my Administration will also interpret and implement section 1244 in a manner that does not interfere with the President’s constitutional authority to conduct foreign affairs and avoids the undue disclosure of sensitive diplomatic communications. Other sections pose similar problems. Sections 1231, 1240, 1241, and 1242 could be read to require the disclosure of sensitive diplomatic communications and national security secrets; and sections 1235, 1242, and 1245 would interfere with my constitutional authority to conduct foreign relations by directing the Executive to take certain positions in negotiations or discussions with foreign governments. Like section 1244, should any application of these provisions conflict with my constitutional authorities, I will treat the provisions as non-binding.

My Administration has worked tirelessly to reform or remove the provisions described above in order to facilitate the enactment of this vital legislation, but certain provisions remain concerning. My Administration will aggressively seek to mitigate those concerns through the design of implementation procedures and other authorities available to me as Chief Executive and Commander in Chief, will oppose any attempt to extend or expand them in the future, and will seek the repeal of any provisions that undermine the policies and values that have guided my Administration throughout my time in office.

BARACK OBAMA

THE WHITE HOUSE,
December 31, 2011.

HT: Ari Kohen

Solicitor General Donald B. Verrilli

Several previous posts ( for example, here, here, and here) have noted recent developments on the question of corporate liability under the Alien Tort Statute. With an HT to Daniel Buk, I am happy to report that the Obama Administration recently filed an amicus brief supporting corporate liability under the ATS. Over at Lawfare, former State Department Legal Adviser John Bellinger explains:

The Obama Administration filed an amicus curiae brief today [December 21, 2011]  with the Supreme Court in support of the Nigerian petitioners in the Kiobel case (which was brought against Shell Oil, relating to its activities in Nigeria), arguing that corporations may be held liable for violations of international law under the Alien Tort Statute.  The brief –signed by State Department Legal Adviser Harold Koh and (somewhat surprisingly) by Commerce General Counsel Cameron Kerry in addition to Solicitor General Don Verrilli – argues that the question of corporate liability under the Alien Tort Statute is governed by federal common law, not by international law, although international law “informs” the issue.  And the brief goes on to argue that under federal common law, corporations may be held liable for violations of both domestic and international law: “[C]orporations have been subject to suit for centuries, and the concept of corporate liability is a well-settled part of our ‘legal culture.’”  The brief states that the United States is not aware of any international law “norm” that would prohibit corporations from being sued for violations of international law.  The brief acknowledges that there are a number of other issues “in the background” of the case (such as aiding-and-abetting liability and extraterritoriality) but urges the Court to address only the corporate liability issue.

This makes a great deal of sense to me. Recently, I participated in an online discussion of corporate liability under the Alien Tort Statute sponsored by the University of Pennsylvania Law Review. In that discussion I argued that corporate liability should obtain under the ATS. In response to an excellent opening statement by Harvard Law Professors Susan Farbstein and Tyler Giannini, I said:

On Monday, October 17, 2011, the United States Supreme Court granted certiorari in Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (2d Cir. 2010). This is not surprising. As Professors Farbstein and Giannini explain in their excellent Opening Statement, since the Second Circuit ruled in Kiobel that corporate liability did not obtain under the Alien Tort Statute (ATS), 28 U.S.C. § 1350, both the D.C. and Seventh Circuits have taken a contrary view. See Doe v. Exxon Mobil Corp., 654 F.3d 11, 40-41 (D.C. Cir. 2011); Flomo v. Firestone Natural Rubber Co., 643 F.3d 1013, 1017 (7th Cir. 2011).

While it is always difficult to predict how the Supreme Court will resolve the split in the circuits, I am inclined to think that the Court will reject Kiobel for several reasons—many of which have already been described by Farbstein and Giannini. But let me highlight two in particular.

First, I believe that the Second Circuit’s decision in Kiobel fundamentally misinterprets the Supreme Court ruling in Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). In Sosa, the Supreme Court set forth the standard to determine whether a violation of a putative norm of customary international law rose to the level of a “‘tort… in violation of the law of nations’” for purposes of the ATS. Sosa, 542 U.S. at 698-99 (quoting 28 U.S.C. § 1350). In the course of a discussion on “the determination whether a norm is sufficiently definite to support a cause of action,” id. at 732, the Supreme Court notes in a footnote that a “related consideration is whether international law extends the scope of liability for a violation of a given norm to the perpetrator being sued, if the defendant is a private actor such as a corporation or individual.” Id. at 732 n.20. For some reason, the Second Circuit latched onto this note to indicate that international law provides some form of standard about liability for different types of juridical persons. Referring to the footnote, the Second Circuit claims: “That language requires that we look to international law to determine our jurisdiction over ATS claims against a particular class of defendant, such as corporations.” Kiobel, 621 F.3d at 127 (emphasis omitted). But if one continues to read the Sosa footnote, it becomes clear that the Court was not suggesting that there was an international law standard regarding the differentiation of individuals from corporations, but rather a standard about whether private actors versus state actors could be held liable. (The footnote continues on to compare Judge Edwards’s concurrence in Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 791-95 (D.C. Cir. 1984), which detailed an insufficient consensus on whether torture by private actors violates international law, with Kadic v. Karadzic, 70 F.3d 232, 239-41 (2d Cir. 1995), which found a sufficient consensus that genocide by private actors violates international law. Sosa, 542 U.S. at 732 n.20.) As the amicus brief of International Law Scholars in support of granting certiorari in Kiobel explains, the “text [of the footnote] shows that the Court was referring to a single class of non-state actors (natural and juristic individuals), not two separate classes as assumed by the Kiobel panel majority….” Brief of Amici Curiae International Law Scholars in Support of the Petition for Writ of Certiorari at 6-7, Kiobel v. Royal Dutch Petroleum Co., No. 10-1491 (U.S. Jul. 13, 2011), 2011 WL 2743197, at *6-7. Indeed, as the International Law Scholars point out, the Supreme Court has previously noted that the “‘Alien Tort Statute by its terms does not distinguish among classes of defendants….’” Id. at 6 (quoting Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 438 (1989)).

Second, as Farbstein and Giannini note, there is ample evidence to support the proposition that international law clearly recognizes that juridical persons, such as corporations, can violate international law. Dating at least as far back as Nuremberg, international law has acknowledged that actors other than natural persons can commit violations of international law. Indeed, the International Law Scholars brief points to a long litany of recent claims to this effect:

A diverse array of treaties reveals the accepted understanding within the international community that corporations have international obligations and can be held liable for violations of international law. See, e.g., Council of Europe Convention on the Prevention of Terrorism, May 16, 2005, art. 10(1), C.E.T.S. No. 196 (2005) (“Each Party shall adopt such measures as may be necessary, in accordance with its legal principles, to establish the liability of legal entities for participation in the offences set forth in Articles 5 to 7 and 9 of this Convention.”); Convention against Transnational Organized Crime, Nov. 15, 2000, art. 10(1), 2225 U.N.T.S. 209 (“Each State Party shall adopt such measures as may be necessary, consistent with its legal principles, to establish the liability of legal persons for participation in serious crimes involving an organized criminal group and for the offences established in accordance with articles 5, 6, 8 and 23 of this Convention.”); Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, Dec. 17, 1997, art. 2, S. Treaty Doc. No. 105-43 (“Each Party shall take such measures as may be necessary, in accordance with its legal principles, to establish the liability of legal persons for the bribery of a foreign public official.”); Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, Mar. 22, 1989, 1673 U.N.T.S. 57; International Convention on the Suppression and Punishment of the Crime of Apartheid, Nov. 3, 1973 art. I(2), 1015 U.N.T.S. 243 (“The States Parties to the present Convention declare criminal those organizations, institutions and individuals committing the crime of apartheid.”); International Convention on Civil Liability for Oil Pollution Damage, Nov. 29, 1969, 973 U.N.T.S. 3; Convention on Third Party Liability in the Field of Nuclear Energy, July 29, 1960, 956 U.N.T.S. 251 (emphasis added in all cases). There is certainly no rule in international law that corporations, regardless of their relationship with a government, enjoy immunity for their state-like or state-related activities, as when they interrogate detainees, provide public security, work weapons systems in armed conflict, or run prisons. As noted by the Special Representative to the U.N. Secretary-General in his summary of international legal principles, the corporate responsibility to respect human rights includes avoiding complicity, which has been most clearly elucidated “in the area of aiding and abetting international crimes, i.e. knowingly providing practical assistance or encouragement that has a substantial effect on the commission of a crime….” Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, ¶¶ 73-74, U.N. Doc. A/HRC/8/5 (Apr. 7, 2008).

Brief of Amici Curiae International Law Scholars, supra, at 11-13.

But at the end of the day, whether corporate violations of international law can be punished in domestic courts through the remedy provided by a civil suit is a question that international law leaves to individual states. It does not matter whether there is an international law “standard” for civil liability for such violations—a point emphasized by both the D.C. and Seventh Circuits and highlighted by Farbstein and Giannini in their Opening Statement.

In short, in support of Farbstein and Giannini’s arguments, I believe that the Supreme Court will, in fact, reject the majority’s conclusion in the divided panel in Kiobel and hold that there is civil liability under the ATS for corporations that commit torts in violation of the law of nations.

But I would be remiss if I did not point to one interesting legal thread raised in the D.C. Circuit and in the International Legal Scholars brief—the issue of “general principles of law.” As will be recalled, the Second Circuit based its decision exclusively upon what it deemed to be rules of customary international law, concluding that there is no rule of customary international law establishing corporate liability for purposes of the ATS. Kiobel, 621 F.3d at 145. The D.C. Circuit and the amicus brief for the International Law Scholars make an argument that, irrespective of whether there is a rule of customary international law, there is a general principle of law providing for corporate liability for violations of international law. See Exxon, 654 F.3d at 53; Brief of Amici Curiae International Law Scholars, supra, at 14.

Article 38 of the Statute of the International Court of Justice, as is well known, lists three main sources of international law: conventions, custom, and “general principles of law recognized by civilized nations.” Statute of the International Court of Justice, art. 38, para. 1(c). This last source is the most controversial and unclear in its meaning. See Anthony Clark Arend, Legal Rules and International Society 49-53 (1999). One of the most widely accepted meanings of general principles is that the term refers to “general principles of law that are common to the domestic legal systems of states.” Id. at 49. And it is this meaning that the D.C. Circuit applies in Doe v. Exxon. The court notes that “the Kiobel majority overlooked general principles of international law as a proper source for the content of international law,” Exxon, 654 F.3d at 53, and concludes that “[g]eneral principles of international law… offer further support that corporate responsibility for the conduct of its agents under a principle of respondeat superior is recognized in the law of nations,” id. at 54.

So here is the question: will the Supreme Court venture into a discussion of general principles of law? If so, it would make a significant contribution to international legal jurisprudence on this source of international law. As far as I can tell, with the possible exception of a passing reference in a footnote in United States v. Maine, 475 U.S. 89, 103 n.18 (1986), the Supreme Court has never addressed the nature of general principles of law.

From Faith Complex, a series of Georgetown’s Program on Jewish Civilization:

On May 2, 2011, Navy SEALS cornered and killed al-Qaeda leader Osama bin Laden, nearly ten years after the so-called War on Terror was first declared. Bin Laden’s death leaves unanswered questions such as: Who will inherit al-Qaeda’s leadership? What is the future of the Taliban insurgency? And will this lead to greater stability in the region? Bruce Hoffman joins Professor Sarah Fainberg to discuss these problematics in this Faith Complex.

Dr. Hoffman is Director of the Center for Peace and Security Studies and Director of the Security Studies Program at Georgetown University, where he also teaches courses on counter-terrorism and counter-insurgency in the Walsh School of Foreign Service. Dr. Hoffman has studied terrorism for more than thirty years and has written extensively on the subject. His most recent book is Inside Terrorism, which analyzes shifts in both foreign and domestic terrorism since the September 11th attacks.

Professor Bruce Hoffman

Read more about Bruce Hoffman

Articles by Bruce Hoffman for Foreign Affairs

Professor Hoffman’s publications for RAND Corporation

Bruce Hoffman’s blog at The National Interest

Secretary Clinton’s Remarks on Women, Peace, and Security

Address

But thank you so much, President DeGioia.  This great university has such a long history of nurturing diplomats and peacemakers and at least one former president who still bleeds blue and gray.  (Applause.)  And the little-known secret, which I’ll spill today, is that my husband and Melanne and her husband were all at Georgetown at the same time, so who knows what might happen in decades from now with all of you and your colleagues.

I also want to acknowledge two members of Congress who are here, Russ Carnahan and John Conyers – thank you very much – as well as members of the diplomatic corps.  And I personally wish to welcome President Jahjaga of Kosovo, who has been a champion for peace and reconciliation, and also for women in her country and beyond.  President Jahjaga has been a strong voice and someone who we are very proud of and impressed by.  I’m also pleased to be joined, as you’ve already heard, from a great group of colleagues from across our government – Under Secretary Michele Flournoy, Admiral Sandy Winnefeld, Deputy AID Director Don Steinberg, Samantha Power from the White House, and others who are here in the audience.

And on a personal basis, I want to say to Michele Flournoy, who has just announced that she will be leaving early next year from the Defense Department, what a valued partner she has been and a terrific leader for our country.  And we will miss you, but we know your public service days are far from over.  Thank you, Michele.  (Applause.)

I also want to recognize all the members of our Armed Forces who are with us today.  I’d like to give them all a round of applause.  (Applause.)  All of you and those who you are serving with and leading are on our minds and in our hearts this holiday season.  This is, after all, a time when we are called upon to think more deeply about peace and what more we can do to try to achieve it.  And we also think about security and what kind of a gift we can give to future generations so that they too have the opportunities that all of us enjoy.

Clinton in Gaston Hall, Photo: UPI/Kevin Dietsch

Today, I want to focus on one aspect of peacemaking that too often goes overlooked – the role of women in ending conflict and building lasting security.  Some of you may have watched a week ago Saturday as three remarkable women – two from Liberia, one from Yemen – accepted the Nobel Peace Prize in Oslo.  For years, many of us have tried to show the world that women are not just victims of war; they are agents of peace.  And that was the wisdom behind the historic UN Security Council Resolution 1325, which was adopted a decade ago but whose promise remains largely unfulfilled.  So it was deeply heartening to see those three women command the global spotlight and urge the international community to adopt an approach to making peace that includes women as full and equal partners.

And that call was underscored this past Thursday when hundreds of leaders and activists gathered at the State Department to launch a new partnership with America’s top women’s colleges to train and support women and girls going into public service around the world.  And of course, those women were incredibly impressive and some were quite courageous.  One took me aside and said that she hadn’t gotten permission from her government to come, but she came anyway.  They are so eager to pour their talents and energy into their communities and to make their countries even better.  They are ready to work for peace, enter politics, serve in the military, lead civil society, live up to their own God-given potential.  They just need the opportunity.

And that is why, in a speech that I delivered in New York on Friday night, I highlighted the growing body of evidence that shows how women around the world contribute to making and keeping peace, and that these contributions lead to better outcomes for entire societies.  From Northern Ireland to Liberia to Nepal and many places in between, we have seen that when women participate in peace processes, they focus discussion on issues like human rights, justice, national reconciliation, and economic renewal that are critical to making peace, but often are overlooked in formal negotiations.  They build coalitions across ethnic and sectarian lines, and they speak up for other marginalized groups.  They act as mediators and help to foster compromise.  And when women organize in large numbers, they galvanize opinion and help change the course of history.

Think of those remarkable women in Liberia who marched and sang and prayed until their countries’ warring factions finally agreed to end their conflict and move toward democracy.  If you have seen the movie – and if you haven’t, I highly recommend it – it’s called Pray The Devil Back To Hell – you know that these brave women literally laid siege to the negotiations until the men inside the rooms signed a deal.

Now I know some of you may be thinking to yourself, “Well, there she goes again.  Hillary Clinton always talks about women, and why should I or anyone else really care?”  Well, you should care because this is not just a woman’s issue.  It cannot be relegated to the margins of international affairs.  It truly does cut to the heart of our national security and the security of people everywhere, because the sad fact is that the way the international community tries to build peace and security today just isn’t getting the job done.  Dozens of active conflicts are raging around the world, undermining regional and global stability, and ravaging entire populations.  And more than half of all peace agreements fail within five years.

At the same time, women are too often excluded from both the negotiations that make peace and the institutions that maintain it.  Now of course, some women wield weapons of war – that’s true – and many more are victims of it.  But too few are empowered to be instruments of peace and security.  That is an unacceptable waste of talent and of opportunity for the rest of us as well.  Across the Middle East and North Africa, nations are emerging from revolution and beginning the transition to democracy.  And here too, women are being excluded and increasingly even targeted.

Recent events in Egypt have been particularly shocking.  Women are being beaten and humiliated in the same streets where they risked their lives for the revolution only a few short months ago.  And this is part of a deeply troubling pattern.  Egyptian women have been largely shut out of decision-making in the transition by both the military authorities and the major political parties.  At the same time, they have been specifically targeted both by security forces and by extremists.

Marchers celebrating International Women’s Day were harassed and abused.  Women protesters have been rounded up and subjected to horrific abuse.  Journalists have been sexually assaulted.  And now, women are being attacked, stripped, and beaten in the streets.  This systematic degradation of Egyptian women dishonors the revolution, disgraces the state and its uniform, and is not worthy of a great people.  As some Egyptian politicians and commentators have themselves noted, a new democracy cannot be built on the persecution of women, nor can any stable society.  Whether it’s ending conflict, managing a transition, or rebuilding a country, the world cannot afford to continue ignoring half the population.  Not only can we do better; we have to do better, and now we have a path forward as to how we will do better.

That is why this morning, President Obama signed an Executive Order launching the first-ever U.S. National Action Plan on Women, Peace, and Security – a comprehensive roadmap for accelerating and institutionalizing efforts across the United States Government to advance women’s participation in making and keeping peace.  This plan builds on the President’s national security strategy, and it was jointly developed by the Departments of State and Defense, USAID, and others with guidance from the White House.  I also want to take a moment to recognize all our partners in civil society and the private sector who contributed, many of whom are here today.  Without your on-the-ground experience, your passionate commitment, and your tireless effort, this plan would not exist, and we look forward to working just as closely together with you on implementing it.

Let me describe briefly how we will do that.  The plan lays out five areas in which we will redouble our efforts.  First, we will partner with women in vulnerable areas to prevent conflicts from breaking out in the first place.  Women are bellwethers of society and, in fact, sometimes they do play the role of canary in the coal mine.  They know when communities are fraying and when citizens fear for their safety.  Studies suggest that women’s physical security and higher levels of gender equality correlate with security and peacefulness of entire countries.  But political leaders too often overlook women’s knowledge and experience until it’s too late to stop violence from spiraling out of control.

So the United States will invest in early warning systems that incorporate gender analysis and monitor increases in violence and discrimination against women, which can be indicators of future conflict.  We will also support grassroots women’s organizations that work to stop violence and promote peace.  And because women’s economic empowerment leads to greater prosperity for their societies, we are putting women and girls at the center of our global efforts on food security, health, and entrepreneurship.  We are working to lower barriers to their economic participation so more women in more places have the opportunity to own their land, start their businesses, access markets, steps that will ultimately lift up not only their families but entire economies and societies.

But what if, despite our best efforts, conflict does flare?  A second focus of our National Action Plan is strengthening protection for women and girls during and after conflict.  We will work with partners on the ground to crack down on rape as a tactic of war, hold perpetrators of violence accountable, and support survivors of sexual and gender-based violence.

Now one place to start is with the poorly trained soldiers and police who contribute to a culture of lawlessness, of violence and impunity, and often are fueled by discrimination against any woman outside their family.  The United States will help build the capacity of foreign militaries, police forces, and justice systems to strengthen the rule of law and ensure that protecting civilians and stopping sexual and gender-based violence in particular is a shared priority.  We are also working with the UN to recruit more female peacekeepers, to better train all peacekeepers to prevent, predict, and react to violence against civilians, and to address the political dynamics that drive sexual violence in conflict areas, because it’s not just soldiers.  Political leaders, local influentials set the tone for these abuses, and they must be held accountable as well.

The United States will support survivors of violence and help give them new tools to report crimes and access shelters, rehabilitation centers, legal support, and other services.  We will also back advocacy organizations that reach out to men and boys, including religious and tribal leaders, to reduce sexual and gender-based violence in homes and communities.

I worked some years ago with citizens in Senegal to end the practice of female circumcision, and we made the case on the basis that it was bad for the health of the future mothers of Senegal.  And we were able to convince tribal and religious leaders to join our cause, and it’s that kind of programmatic approach that we want to see more of.

Now ultimately, the best way to protect citizens is to end the conflict itself.  So a third focus of the National Action Plan is expanding women’s participation in peace processes and decision-making institutions before, during, and after conflicts.  As I explained in my speech on Friday in New York, women bring critical perspectives and concerns to the peace table, and can help shape stronger and more durable agreements.

Take just one example.  During 2006 peace negotiations in Darfur, male negotiators deadlocked over the control of a particular river until local women, who have the experience of fetching water and washing clothes, pointed out that the river had already dried up.  (Laughter.)  Yeah, I know.  I particularly like that one, too.  (Laughter.)

Excluding women means excluding the entire wealth of knowledge, experience, and talent we can offer.  So the United States will use the full weight of our diplomacy to push combatants and mediators to include women as equal partners in peace negotiations.  We will work with civil society to help women and other leaders give voice to the voiceless.  And we will also help countries affected by conflict design laws, policies, and practices that promote gender equality so that women can be partners in rebuilding their societies after the violence ends.

And that brings me to the fourth focus of our plan – ensuring that relief and recovery efforts address the distinct needs of women and girls who are the linchpins of families and communities and invaluable partners in stabilizing countries scarred by conflict.  This is crucial because humanitarian crises caused by conflict can be just as dangerous as the fighting itself and can sow the seeds of future instability.   Women are often among the most vulnerable in crises, yet they rarely receive a proportionate share of assistance or have the chance to help set post-conflict priorities.  But with the right tools and support, women can lead recovery efforts and help get their communities back on their feet.

So the United States will encourage our international partners to include women and civil society organizations in the design and implementation of relief efforts and reconstruction planning.  We will designate gender advisors for all USAID crisis response and recovery teams, and these advisors will highlight the specific concerns of women and girls to ensure that their perspectives are solicited and incorporated in the design and implementation of our programs.  Refugees and other displaced people are highly vulnerable to exploitation and abuse, including sexual violence.  So we will prioritize prevention and response to sexual violence, along with other lifesaving humanitarian assistance, and help build critical services such as food distribution, emergency education, cash-for-work programs, and health centers around women and their needs, including reproductive and maternal healthcare.

Small steps can have a big impact.  For example, I’ve talked with women who walk long distances from their refugee camps to find wood for their cooking fires, putting them at great risk of assault and rape.  I remember being in the very large camp in Goma in the eastern Democratic Republic of Congo.  And all the women told me the same thing – that they were in this camp where there were many international NGOs and humanitarian relief organizations, but they were still having to go out on their own to find wood, to make sure that they had an adequate supply of fuel, and they were subject to attack when they left the camp.  And it struck me as sort of strange that here we had all these people; couldn’t we organize either teams of people to help the women as they went out and to protect them, or was there a better way that we could pursue to really eliminate this problem?

So we are supporting a global effort to provide cleaner and safer stoves that require less fuel and, therefore, fewer trips through dangerous territory.  The Clean Cookstoves Global Alliance that we are at the center of creating and expanding is doing research with the National Institutes of Health because this is a three-for-one investment.  Yes, women don’t have to stray so far from home or from a refugee camp to have fuel to cook the family’s food.  Secondly, children and women will not be dying from respiratory diseases which are, unfortunately, the byproduct of breathing that smoke all day every day, sometimes in very confined spaces.  And thirdly, we will cut down on black carbon and black soot, which is good for the environment.  So we’re very focused on bringing this to scale over the next years, and we have a lot of support in doing so.

Now, I realize that this National Action Plan lays out an ambitious agenda that will require a lot of concentrated and coordinated effort.  So the fifth focus is institutionalizing this work across the United States Government.  As part of this process, we will increase training for our troops, diplomats, and development experts on international human rights and humanitarian law, protecting civilians, preventing and responding to sexual and gender-based violence, and combating trafficking-in-persons.  We will update policies and practices across our government, because our goal is to fundamentally change the way we do business.

The President’s Executive Order directs key departments and agencies to develop comprehensive strategies to implement the National Action Plan within five months.  And let me offer a few specific examples of what this will look like.  At the State Department, we have already begun a new initiative on women, peace, and security in Africa, focused on building local capacity in countries affected by conflict.  Its first round of grants will train women activists and journalists in Kenya in early-warning systems for violence, support a new trauma center for rape survivors in Sudan, help women in the Central African Republic access legal and economic services, and improve collection of medical evidence for prosecution of gender-based violence in the Democratic Republic of the Congo.

And that’s just the beginning, because around the world, from Iraq and Afghanistan, to South Sudan, the new transitional democracies in the Middle East and North Africa, our embassies are developing local strategies to empower women politically, economically, and socially.

At USAID, among other projects, we will be launching a new Global Women’s Leadership Fund in partnership with the Consortium for Elections and Political Process Strengthening.  This will train women activists and civil society leaders and support their participation in peace negotiations, political transitions, and democratic institutions.  And we’re also stepping up our efforts to combat human trafficking in conflict zones.

The Department of Defense, which helped develop the National Action Plan, will have a lead role in implementing it.  The fact that both Sandy Winnefeld and Michele Flournoy are here reflects the lessons our nation’s military has learned in the last ten years and its deep understanding about the links between the security and agency of women and the peace and stability of nations.   So by working with partner militaries, the Pentagon will build on the excellent work already underway in places like Afghanistan – where our Provincial Reconstruction Teams engage with communities to curb violence against women, honor killings, and female immolation – and in the Democratic Republic of the Congo, where AFRICOM experts are training local soldiers to protect human rights and prevent sexual and gender-based violence.

And I’m very proud that we have several female flag and general officers with us today, living proof of how important women are to American national security.  In today’s military, women are leading carrier strike groups, expeditionary strike groups, and numbered air forces.  They are on the frontlines, defending our country, responding to disasters, and working with our allies and our partners.

And other parts of our government are also stepping forward.  The Centers for Disease Control and Prevention is launching a new system to monitor sexual and gender-based violence in nearly 20 countries.  The Department of Justice is working with police, prosecutors, judges, and jail workers around the world to increase accountability for sexual violence and human trafficking.  And the list goes on.  Suffice it to say, this is truly a whole-of-government effort as well as an international effort.

And the National Action Plan will help us work with allies and partners here at home as well as abroad, and I’m delighted by the announcement, President DeGioia and Dean Lancaster, about Georgetown’s leadership.  There couldn’t be a better institution to lead the way in the academic work that is necessary around these issues.  And in fact, more than 30 countries have already developed their own national action plans.

NATO is factoring women and their needs into key planning processes and training courses, stationing gender experts throughout operational headquarters, and deploying female engagement teams to Afghanistan, where the alliance is also training local women to serve in the security forces.  In 2012, 10 percent of the Afghan military academy’s class will be women, and by 2014 Afghanistan expects to field 5,000 women Afghan national police officers.

The United Nations is also making important progress, building on Resolution 1325.  With strong U.S. support, the Security Council has already adopted four additional resolutions on women and security in just the past three years.  And last month, the General Assembly’s Third Committee adopted a new U.S.-led resolution to encourage greater political participation for women and an expanded role in making and keeping peace.  And the establishment of a new organization within the UN system focused on gender called UN Women, headed by the former President of Chile Michele Bachelet is also making this an important focus.  And the Secretary General has appointed a special representative for sexual violence in conflict – a step we strongly supported – and the Department of Peacekeeping Operations has steadily improved its guidance to peacekeeping in order to offer protection and leadership as key training components.

Now, why is all this happening, all these countries, the United Nations, NATO, and certainly us?  Well, the reason is because we are convinced.  We have enough anecdotal evidence and research that demonstrates women in peacekeeping is both the right thing to do and the smart thing, as well.  It’s right, because, after all, women are affected disproportionately by conflict; they deserve to participate in the decisions that shape their own lives.  And it’s the smart thing because we have seen again and again that women participating in these processes builds more durable peace.

But as strong as the case is, it’s true that the question of just how women contribute to peace and security, aside from the high-profile woman who sits at the table, or the nation’s leader that makes the peace, what it is that women themselves across the board can do?  Well, this does deserve far more quantitative research and rigorous study.  That’s why Georgetown’s plan to establish an Institute for Women, Peace, Security, and Development, to support scholarship and research, as well as outreach, will help us elevate public understanding of this important matter.  It will be a home for primary source material such as oral histories, and quality analysis that will help activists and leaders as well.  I can’t wait to see it up and going.  A new push on research and data collection will be particularly useful for us as we implement our own National Action Plan.

Of course, we know that change will not come easily and it certainly won’t come quickly. But to ensure that we are headed in the right direction, that our strategies are effective and sustainable, we have to be able to measure what we are doing.  And that means developing sound metrics to guide us.  So thanks to Georgetown for taking on this really important task.

Let me close by telling you about one woman whose experiences and accomplishments embody much of what we are discussing today, and that is our special guest, the president of Kosovo.  She’s here with us today, and I’ve been able to spend some wonderful time with her over the last few days and in meetings before she came.  And I won’t, like Carol, tell you how young she is, but let’s just say that she’s accomplished a great deal in a very short period.

The future president was still a student when war tore apart her homeland.  Now, I will never forget those days – meeting Kosovar families in a refugee camp, meeting others in Europe, hearing their stories of being forced from their homes at gunpoint, or the haunted pain in the eyes of a doctor who was literally chased from caring for her patients.  It was a terrible conflict, and I’m very proud of the role that the United States played in ending the violence.

After finishing her studies, this young woman, who would not have been identified as a future president of an independent Kosovo, went to work as a police officer so she could help keep the peace and protect her community.  She worked closely with international troops.  She earned the respect of her colleagues, both on the frontlines and in the offices where decisions were made, and she earned the trust of her fellow citizens, men and women alike.

She rose through the ranks quickly, eventually helping lead the new Kosovo police force.  And then earlier this year, she became the first woman-elected president of Kosovo, and also the first woman-elected president anywhere in the Balkans.  Since then, she has shown consistent leadership and worked to bring her country together behind a program of good governance, rule of law, ethnic reconciliation, and regional stability.  She has also stood up for the rights and opportunities of Kosovo’s women.  And as she explained at a recent investment conference in Zagreb with women entrepreneurs, she understands the role that women must play in increasing regional prosperity and security.

Like so many women around the world, President Jahjaga endured the pain of war and was determined to secure the benefits of peace.  Kosovo is better off because she insisted on being part of the solution.  Our goal together should be to open that opportunity to women in every place where peace and stability are threatened so they too can contribute to lasting security for their communities and their countries.  That is what this national action plan is all about.  And that is now the mission and the redoubled purpose of our own government.  And it is the future of peacemaking.  There is so much to be done, and I know that many of you here who are studying at Georgetown have a future ahead of you of being among the peacemakers and keepers in government, in NGOs, in multilateral institutions, in our nation’s military, in academia.  We need you and we welcome your commitment to this great struggle of the 21st century, ensuring peace, equality, prosperity, and opportunity in the context of freedom and democracy for people everywhere.

Thank you for deciding to be part of the solution, and I now look forward to taking some questions about how we can chart this new approach together.  (Applause.)

Thank you.  (Applause.)

MODERATOR:  Secretary Clinton has agreed to take two questions.  And so we’ll begin with you.  Please introduce yourself and say where you’re from.

QUESTION:  Sure.  My name’s Emily Roskowski. I’m a second year Master of Science and Foreign Service student, and I’m originally from Maryland – Bel Air, Maryland, and I was wondering how the action plan will deal with the cultural, sensitive issues of including cultural norms and sensitivities within the plan, and how it might have an implementation mechanism that will – that might take into account any potential community backlash.

SECRETARY CLINTON:  I think that’s an excellent question, and of course, it’s something we think about all the time.  And it’s really along a spectrum of actions and reactions.  Of course, we understand that there are differences that are of historic and cultural importance in many places around the world.  And many of those we respect, and we try to be very sensitive to the legitimate concerns that people have about protecting what they value in their own societies.

But there are certain actions that are beyond any cultural norm.  Beating women is not cultural, it’s criminal, and it needs to be addressed and treated as such.  (Applause.)  And then there are those historic practices like female circumcision that have been around for centuries, or honor killings, which served a purpose in a prior time, that we believe we must address by demonstrating how counterproductive, how destructive they are of the very fabric of the society that is being affected by them.

So when you look at the work we did in Senegal, we pointed to the great difficulties women had bearing children.  Now, bearing children is a high priority.  So if you are doing something that you’ve inherited from centuries before that now, today, you know is destructive and undermining of an even higher priority, namely having children and producing the next generation, you begin the conversation not in an accusatory fashion but in a effort to try to have a dialogue about what works today that perhaps didn’t.  I mean, a lot of people, if you look at the series Mad Men, were smoking madly, until it became pretty irrefutable that doing so would shorten you life.  And then we learned second hand smoke might shorten other people’s lives.  Well, there are things we learn that can’t be viewed as somehow outside of the historical and even cultural framework.

So we are aware of the sensitivities, and what we try to do is, wherever possible, have a respectful dialogue.  The training and programmatic approaches that we support through USAID and other institutions, certainly attempts to do that.  But then there are certain areas where you cannot accommodate, you cannot be sensitive, you have to draw lines, and we are looking for how to do that.

Now in this area of women, peace, and security, we are acquiring a body of evidence about the roles that women play.  Women played a very critical role in ending the Northern Ireland troubles, in ending the civil wars in Central America, in ending the Liberian war that I just mentioned, in being part of peacemaking in other conflicts throughout the world.  And so we have both an argument as to it being an important goal, but we also have evidence that points to tactics and strategies about how you achieve that goal.  So I’m hopeful that we will get a broader discussion.

And finally, I would say that when people set their own goals, norms, and values, and then they violate them, it provides an opening for a discussion not only coming from the outside, but from within.  Certainly, the scenes that we’re seeing out of Egypt today should be first and foremost distressing to Egyptians and not to us or others before the Egyptian people themselves.  The promise, the beauty of the revolutionary aspirations that everyone watched unfold in Tahrir Square, the restraint of the security forces in how they responded, all of that was very promising, and it was held up by the Egyptian people – leaders and citizens alike – as what a new Egypt would look like.  The scenes of Coptic Christians protecting Muslims while praying, and then Muslims protecting Coptic Christians while praying was an Egyptian scene – not American or European or Western.  And so when countries are running afoul of their own best selves, when a great country with such a history as Egypt is seeing unfold before their eyes this kind of violence, then there needs to be a reaction from within.  And women’s voices need to be heard and women need to be protected as they assume a position at every table in the country to make decisions about the future.

So it’s – there’s no formula or guidebook that you can look at.  But those are some of the general principles by which we try to think through and do our work.  (Applause.)

MODERATOR:  One more – one more question.  Introduce yourself, please.

QUESTION:  I’m Mark [Lagon], and I’m on the faculty of the Master of Science and Foreign Service program, and I’m thankful that Dean Lancaster has asked me to be on the advisory board of the new institute.

I’ve got a question that was informed by being Ambassador CdeBaca’s predecessor heading the Human Trafficking Office at the State Department.  I saw there that prevention is as important as the activity afterwards, after the gender crime, the human rights abuses, the breakdown of the rule of law happens.  I was delighted to see your emphasis on prevention, getting women involved up front, and political participation.  As you roll out a presidential plan, I would imagine that the prevention matters would be the ones that would be hardest to maintain the momentum on for implementation.  What do you think you can do to look at that prevention side and make sure that sticks through the years following on to this plan?

SECRETARY CLINTON:  Great question, Ambassador.  And, obviously, it’s something that we work on a lot because what often happens – and it’s not just in international affairs; I mean it is also in our own domestic resource allocation.  Very often prevention gets short shrift because you deal with the crisis and then it’s a kind of circular argument, maybe we could have avoided the crisis if we’d actually spent more on prevention.  So it’s one of those conundrums that we face in policy across the board.  But certainly in this particular area of women, peace, and security, the more we can invest in prevention – and it is broadly defined.  There are programs which we think work.  There are interventions like the Global Cookstoves Alliance that can prevent perhaps more women from being assaulted or killed as they seek firewood.  There are programs that support NGOs and even other governments’ efforts to protect and empower women.

So we have to be smart about what we invest in, especially in these budgetary times but really any time we need to be.  And we also need the metrics, the measurable outcomes.  We have to be quite clear about this.  We can’t continue supporting programs because we know the people and we like them, or because they worked 10 years ago but they’re not working today.  So we have to be creative and innovative and very clear-eyed.

Now I do think we have some tools that we’re beginning to understand better how to use, and that’s cell phones and the internet.  Equipping women with cell phones so that they can get information in real time about matters that are important to them empowers them in ways that we couldn’t have imagined just a few short years ago.  Getting information to go to your area of trafficking, trying to get broader information about what to look out for, be aware of; don’t accept that nanny job or that factory job without really going to this source of information and trying to vet it.

There’s a lot of ways now, since cell phone usage is just exploding all over the world, that we can be smart about how we use technology to empower women to protect themselves.  I think that prevention is going to be a major pillar of this whole policy that we are developing, and we’re looking for good ideas, we’re looking for good outcomes.  And as part of the QDDR that I commissioned two years ago that we’re now implementing in the State Department and USAID, we have to be quicker on the evaluation.  That’s something that Raj Shah and Don Steinberg and their team at AID have really zeroed in on:  How do we get more real time information so we can support what works and, frankly, no longer support what doesn’t work, so that we can shift those scarce resources somewhere else.

I think that we know for sure that making changes in laws that give women an economic stake protects women.  It is a prevention strategy; so that if – since 60 to 70 percent of the small holder farmers in the world are women in Africa, Asia, Latin America, and many – in many places, particularly in Africa, if a woman’s husband dies, if her father dies, she cannot inherit the property that she has spent years working on and been the primary harvester of the crops.  Well, changing that gives women a status that protects them, to be honest, and gives them a stake that is recognizable.  If a woman shows up and says, “I own land in this province and I want to be part of helping to resolve this conflict,” that carries a higher status than if you show up and say I’m a market lady and I sell vegetables that somebody else grows.

So all of this is part of the cultural milieu that we have to understand better, and I think we’re getting smarter about it, and we hope that prevention will always be right up there with – among our other strategic priorities.

Thank you.  (Applause.)