I express my sincere thanks to the American Society of International Law and the International Legal Studies Program at American University Washington College of Law for the invitation to be this year’s commentator. It is indeed an honor to respond to Judge Charlesworth’s erudite Grotius Lecture: “The Art of International Law.”
Just getting to say Judge Hilary Charlesworth alone is very meaningful. She is only the fifth woman judge out of 110 total judges on the International Court of Justice (ICJ) so far. Thanks to hard work by feminist international lawyers like her, there is finally an uptick in women’s inclusion in the field of international law. That is great news, but there is a long way to go. The progress being made has to be nurtured, expanded, and protected. I want to start off by congratulating the 2022 Grotius lecturer and thanking her personally, and her whole generation of feminist international lawyers around the world, for working so hard to increase the representation of women in international law and for creating space for many of us within the discipline

Karima Bennoune

English

Digital Commons @ American University Washington College of Law

American University Law Review Volume 38 Issue 3 Article 2 2023 Discussant Commentary on the Twenty-Fourth Annual Grotius Lecture Karima Bennoune Follow this and additional works at: https://digitalcommons.wcl.american.edu/aulr  Part of the Comparative and Foreign Law Commons, Courts Commons, International Law Commons, and the Transnational Law Commons Recommended Citation Karima Bennoune (2023) "Discussant Commentary on the Twenty-Fourth Annual Grotius Lecture," American University Law Review: Vol. 38: Iss. 3, Article 2. Available at: https://digitalcommons.wcl.american.edu/aulr/vol38/iss3/2 This commentary is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in American University Law Review by an authorized editor of Digital Commons @ American University Washington College of Law. For more information, please contact kclay@wcl.american.edu. Discussant Commentary on the Twenty-Fourth Annual Grotius Lecture Abstract I express my sincere thanks to the American Society of International Law and the International Legal Studies Program at American University Washington College of Law for the invitation to be this year’s commentator. It is indeed an honor to respond to Judge Charlesworth’s erudite Grotius Lecture: “The Art of International Law.” Just getting to say Judge Hilary Charlesworth alone is very meaningful. She is only the fifth woman judge out of 110 total judges on the International Court of Justice (ICJ) so far. Thanks to hard work by feminist international lawyers like her, there is finally an uptick in women’s inclusion in the field of international law. That is great news, but there is a long way to go. The progress being made has to be nurtured, expanded, and protected. I want to start off by congratulating the 2022 Grotius lecturer and thanking her personally, and her whole generation of feminist international lawyers around the world, for working so hard to increase the representation of women in international law and for creating space for many of us within the discipline. Keywords Commentary, International Law, International Court of Justice, ICJ, United Nations, UN This commentary is available in American University Law Review: https://digitalcommons.wcl.american.edu/aulr/vol38/iss3/2 639DISCUSSANT COMMENTARY ON THETWENTY-FOURTH ANNUALGROTIUS LECTURE*KARIMA BENNOUNE**I express my sincere thanks to the American Society of InternationalLaw and the International Legal Studies Program at AmericanUniversity Washington College of Law for the invitation to be thisyear’s commentator. It is indeed an honor to respond to JudgeCharlesworth’s erudite Grotius Lecture: “The Art of InternationalLaw.”Just getting to say Judge Hilary Charlesworth alone is verymeaningful. She is only the fifth woman judge out of 110 total judgeson the International Court of Justice (ICJ) so far. Thanks to hard workby feminist international lawyers like her, there is finally an uptick inwomen’s inclusion in the field of international law. That is great news,but there is a long way to go. The progress being made has to benurtured, expanded, and protected. I want to start off by congratulatingthe 2022 Grotius lecturer and thanking her personally, and her wholegeneration of feminist international lawyers around the world, forworking so hard to increase the representation of women ininternational law and for creating space for many of us within thediscipline.Turning to the topic of Judge Charlesworth’s lecture, as a formerUnited Nations Special Rapporteur in the field of Cultural Rights, Iam delighted she has chosen to focus on the intersection of art andinternational law, and to consider how images and the visual sphereaffect our discipline. We are seeing ever-greater international legalengagement in this area. Another example is the March 2020* This commentary is also published in 116 AM. SOC'Y INT'L L. PROC. 24 (2022).** Lewis M. Simes Professor of Law, University of Michigan Law School. Theauthor thanks James Brown, René Figueredo Corrales, and Shay Elbaum forresearch assistance.640 AM. U. INT’L L. REV. [38:3symposium in AJIL Unbound on “Art, Aesthetics and InternationalLaw.”1 That symposium and this lecture are evidence that art andinternational law are becoming more acquainted.I will consider this interplay of international law and culture from acultural rights perspective. Judge Charlesworth suggests thatinternational lawyers have mainly focused on “what art can do forinternational law.”2 This is certainly true in some areas of internationallaw scholarship. However, I would add, as a friendly amendment, thatin the cultural rights field, we have also looked at what internationallaw can do for art and for artists. International law protects artisticexpression, even as artistic expression can help advance internationallaw agendas.3Cultural rights—including the right to take part in cultural lifewithout discrimination, and freedom of artistic expression—areprerequisites for communicating visually. These rights are a core partof the universal human rights framework grounded in the UniversalDeclaration, including in Article 27, and guaranteed by bothinternational covenants on human rights.4Cultural rights are vital in and of themselves, but have also beenincreasingly recognized as important elements of accessing justice,and as “fundamental to creating and maintaining peaceful and justsocieties and to promoting enjoyment of other universal humanrights.”5 As I noted in a 2018 report to the UN Human Rights Council1. See Symposium, Art, Aesthetics, and International Law, 114 AM. J. INT’L L.UNBOUND 103, 103 (2020) (providing a general framework for consideration of artand international justice).2. See generally Hilary Charlesworth, 24th Annual Grotius Lecture Series: TheArt of International Law, 38 AM. U. INT’L L. REV. 609, 612–16 (2023) (discussingthe potential positive implications of art on international law).3. See Farida Shaheed (Special Rapporteur in the Field of Cultural Rights), TheRight to Freedom of Expression and Artistic Creativity, ¶¶ 1–6, U.N. Doc.A/HRC/23/34 (Mar. 14, 2013) (discussing legal protections for what the SpecialRapporteur called the right to freedom of artistic expression).4. See G.A. Res. 217 (III) A, Universal Declaration of Human Rights art. 27(Dec. 10, 1948).5. See Karima Bennoune (Special Rapporteur in the Field of Cultural Rights),The Contribution of Artistic and Cultural Initiatives to Creating and DevelopingRight-Respecting Societies, ¶ 2, U.N. Doc. A/HRC/37/55 (Jan. 4, 2018) (discussinghow arts and culture can make significant contributions towards developing andmaintaining societies in which human rights are increasingly realized).2023] DISCUSSANT COMMENTARY 641on socially engaged cultural initiatives, “humanity dignifies, restoresand reimagines itself through creating, performing, preserving andrevising its cultural and artistic life . . . . Cultural practices and the artsare resources for marshalling attention to urgent concerns . . . andimagining and giving substance to a more rights-friendly future.”6Despite these contributions, international lawyers only rarelyengage directly with culture and the cultural dimensions of theirdiscipline, making it all the more important that an ICJ judge ishighlighting these aspects. Pablo de Greiff, former UN SpecialRapporteur on the Promotion of Truth, Justice, Reparation andGuarantees of Non-Repetition, has argued that “transitional justice hasgenerally and systematically ignored claims of culture,” and hasinsisted on the importance of recognizing the “unparalleled potentialof cultural interventions” and the critical roles they can and shouldplay in transitional justice processes.7Unfortunately, there are numerous obstacles to achieving suchrecognition of the potential of cultural initiatives and analyses acrossthe field of international law. One stumbling block is that culture isoften seen as less important—a luxury item even—by someinternational lawyers and human rights defenders. For example, theInternational Criminal Court’s decision to hear the Al Mahdi case,8 thefirst ever stand-alone international prosecution for the war crime ofdestroying cultural property, provoked ill-informed criticism of theCourt by some. The critics overlooked the meaning that these acts ofcultural heritage destruction had for many locals, which I found outfirst-hand when working with victims during the reparations phase ofthe case.9 These violent acts of cultural engineering had grave impactson a range of their human rights. As the International Criminal Courtitself described the crimes in question, they aimed at “breaking the6. Id.7. See Pablo de Greiff, On Making the Invisible Visible: The Role of CulturalInterventions in Transitional Justice Processes, in TRANSITIONAL JUSTICE,CULTURE, AND SOCIETY 12, 20–21 (Clara Ramírez-Barat ed., 2014).8. Prosecutor v. Al Mahdi, ICC-01/12-01/15, Judgment and Sentence, ¶ 2(Sept. 27, 2016).9. Brief by Karima Bennoune, UN Special Rapporteur in the Field of CulturalRts., as an Expert Appointed by the Int’l Crim. Ct., Prosecutor v. Al Mahdi, ICC-01/12-01/15-214AnxI-Red3, annex I, 5–6 (Apr. 27, 2017), https://www.icc-cpi.int/sites/default/files/RelatedRecords/CR2017_05022.pdf.642 AM. U. INT’L L. REV. [38:3soul of the people of Timbuktu” and were of “significant gravity.”10Judge Charlesworth herself notes that the power of arts and cultureis ambiguous.11 There can be many negative aspects and usages ofimages and other forms of culture, cultural expressions, and art itself.Arts and images can be used to celebrate human rights violations, orto promote problematic narratives about conflicts, or to incitediscrimination and violence. This is all the more reason to take artsand culture seriously as a sphere of analysis in international legalscholarship. Judge Charlesworth’s powerful lecture is a significantstep in that direction, and will hopefully be built upon in futureinternational legal scholarship.A visually conscious international law can help us more fullyengage with the human reality of our theoretical debates. As SandraRistovska writes, “incorporating the visual and imagining with andbeyond it could strengthen the ability of human rights frameworks torespond to global injustice . . . .”12 That is true for international lawmore generally. However, such an approach raises somemethodological challenges and calls upon us to explore the ethics ofvisual praxis.13 I do not have time to fully develop this here but wouldat least mention the following key elements:(1) We need to engage with the complexity of images—a problemmagnified by contemporary technology—and ethical dilemmasassociated with using them, involving security, privacy, and dignity.(2) We need to consider ways of using international law to protect10. Al Mahdi, ICC-01/12-01/15, ¶¶ 80, 82.11. Charlesworth, supra note 2, at 612–16.12. See SANDRA RISTOVSKA & MONROE PRICE, Images and Human Rights, inVISUAL IMAGERY AND HUMAN RIGHTS PRACTICE 1, 11 (Sandra Ristovska & MonroePrice eds., 2019)13. See Annalisa Ciampi, Images and Customary International Law, or theDestruction/Construction of International Norms Through Images, 13 PÓLEMOS 25,28–31 (2019); Roland Bleiker et al., Imaging Catastrophe: The Politics ofRepresenting Humanitarian Crises, in NEGOTIATING RELIEF: THE POLITICS OFHUMANITARIAN SPACE 47, 49 (Micele Acuto ed., 2014); Aoife Duffy, BearingWitness to Atrocity Crimes: Photography and International Law, 40 HUM. RTS. Q.776, 781–82 (2018); Using Audiovisual Evidence in International Proceedings: AHandbook for All Practitioners, TRIAL INT’L (May 12, 2019), https://trialinternational.org/latest-post/using-audiovisual-evidence-in-international-proceedings-a-handbook-for-all-practitioners.2023] DISCUSSANT COMMENTARY 643the human rights of those who produce images, which can be a highlydangerous task.(3) We need to develop further interdisciplinary relationships withour colleagues in art, art history, and related disciplines.(4) When visuals emerge so powerfully in international legaldebates, as we are seeing now with the illegal invasion of Ukraine, wealso need to think about the effect of the images we do not see.In my remaining time, I want to engage with a few ideas springingfrom the lecture. I especially appreciate the conclusion of JudgeCharlesworth’s talk, and in particular the way she frames thepossibilities of “bringing the visual into conversation with law” so asto remind us that law also is a meaning-making activity with materialeffects and one which requires creativity and interpretation.14 Herreminder of the power of visuality can also be used to call into questionthe UN human rights system’s refusal to allow UN SpecialRapporteurs or treaty bodies to use images or graphics or artwork ofany kind in their often turgid, exactly 10,700-word reports. The policyon images and graphics is not an accident. It is, in part, a recognitionof the power of visuality and manifests the fear of unleashing that verypower.In thinking about the power of images, as I already mentioned, it isalso critical to underscore the creativity of image-makers and thedangers they so often face. This was a reality I confronted throughoutmy time in the UN cultural rights mandate. An illustrative example isAfghanistan’s Art Lords, headed by the “artivist” Omaid Sharifi.15 Hisorganization painted murals against war and for human rights on thevery blast walls of Kabul that were needed to protect from Talibansuicide attacks, remaking those structures as fields of reflection.16Sadly, most, if not all, of their murals have been painted over, and theArt Lords have been forced into exile since the internationalcommunity handed the country over to the Taliban.17 Yet, the Art14. Charlesworth, supra note 2, at 637.15. See Meet ArtLords’ Team, ARTLORDS, https://www.artlords.co/our-team(last visited Feb. 11, 2023).16. See About: Who We Are, ARTLORDS, https://www.artlords.co/about (lastvisited Feb. 11, 2023).17. See Nabih Bulos, The Bursting ‘Ka-Bubble’: Taliban Extremism Is644 AM. U. INT’L L. REV. [38:3Lords and other displaced Afghan artists continue working to sustainAfghans and support human rights in Afghanistan.18Another example is the seventy-six-year-old Russian artist ElenaOsipova who has been painting against the illegal invasion of Ukraine,and has been arrested carrying her paintings in public.19 How can ourfield do more to sustain cultural rights defenders like them?20 As weembrace the power of visuality in international law more broadly, wemust also find more effective ways to use that law to defend those whocreate and preserve images—photographers, artists, cartoonists—whoface human rights violations for their work. This too must be a corecomponent of our visual practice of international law.Today’s lecture has me thinking about how much it would changeinternational legal debates if we were regularly confronted withimages of those about whose lives we theorize, just as Nauru inCharlesworth’s words “intertwined [legal arguments] with imagery”of its devastated landscape to advance its case.21 Images can alsocomplexify our arguments if we engage with them holistically. Forexample, perhaps when debating the merits of the Libya intervention,a debate that has resurfaced since Russia invaded Ukraine, it can helpus to remember what is at stake by looking at images such as aphotograph of Libyan human rights lawyer Salwa Bughaighis.22 Thisrequires a complex reading of image and context. Salwa supportedinternational intervention because she was from Benghazi and a long-standing opponent of Qaddafi who feared his troops would decimateRemaking a Once-Cosmopolitan Kabul, L.A. TIMES, (Sept. 24, 2021, 4:00 AM),https://www.latimes.com/world-nation/story/2021-09-24/taliban-extremism-remaking-kabul-afghanistan.18. See Meet ArtLords’ Team, supra note 16.19. See Steve Rosenberg, Ukraine-Russia: The 76-Year-Old Artist Taking onPutin, BBC NEWS (Mar. 24, 2022), https://www.bbc.com/news/world-europe-60866283.20. See Karima Bennoune (Special Rapporteur in the Field of Cultural Rights),Cultural Rights Defenders, ¶¶ 2, 77, UN Doc. A/HRC/43/50 (Jan. 20, 2020)(discussing how to protect the rights of those human rights defenders who defendcultural rights in accordance with international law).21. Charlesworth, supra note 2, at 625.22. After 8 Years of Assassination of Salwa Bugaighis, Lack of Justice andImpunity for the Perpetrator, DEFENDER CTR. FOR HUM. RTS. (June 25, 2022),https://defendercenter.org/4758.2023] 645her hometown.23 Whatever one’s own view, Salwa’s story clarifies theconsequences of the lack of international follow-up after theintervention. Given her work for women’s rights and democracy, shewas forced into exile after Qaddafi’s fall.24 She later returned home tovote and was assassinated by an Islamist militia inside her house onJune 25, 2014.25 When I look at Salwa’s image, I am reminded of howmuch is at stake, so much more than our personal commitment asinternational lawyers to our own paradigms and positions. Images caninfuse our debates with a greater sense of responsibility for thearguments we make.23 Jon L. Anderson, , NEW YORKER(June 26, 2014), https://www.newyorker.com/news/news-desk/a-death-in-benghazi-salwa-bugaighis.24 Lindsey Hilsum,, OPEN DEMOCRACY (July 3, 2014), https://www.opendemocracy.net/en/5050/desolation-and-despair-in-libya-murder-of-salwa-bugaighis.25646 AM. U. INT’L L. REV. [38:3In conclusion, I hope we will take up Judge Charlesworth’schallenge in her Grotius Lecture to imagine a richer visual, and evenartistic, practice for our discipline. This is essential given that, toparaphrase Shoshanna Felman, sometimes precisely what needs to beheard in the field of international law cannot be articulated in legallanguage alone.2626. See generally SHOSHANA FELMAN, THE JURIDICAL UNCONSCIOUS: TRIALSAND TRAUMAS IN THE TWENTIETH CENTURY 4 (2002).

Discussant Commentary on the Twenty-Fourth Annual Grotius Lecture

https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=2234&context=aulr

Discussant Commentary on the Twenty-Fourth Annual Grotius Lecture

Abstract

Similar works

Full text

Available Versions

Digital Commons @ American University Washington College of Law