Recent Posts

Apparently, I’m a 9/11 Truther (Al-Bahlul Revisited)

by Kevin Jon Heller

Only a “truther” who denies that al-Qaeda was responsible for 9/11 could doubt the international law basis for holding al Bahlul accountable for his role in this completed war crime.

So Peter Margulies argues in his latest attempt to defend the indefensible: al-Bahlul’s conviction for the non-existent war crime of conspiracy as an inchoate offence. To describe the accusation as offensive is an understatement, given that it accuses not only me and Steve Vladeck of being 9/11 truthers, but Judge Tatel and Judge Rogers, as well.

Even worse, though, Margulies’ arguments seem to have gotten even more problematic over time. Let’s take an in-depth look at his post. Here is how it opens:

Our amicus brief argued that upholding al Bahlul’s conviction would permit military commissions to try only a “narrow class” of cases outside commissions’ accepted jurisdiction…

Points for openly admitting that the military commissions’ “accepted jurisdiction” does not include jurisdiction over non-existent war crimes such as conspiracy. But no points for the claim that we shouldn’t hold courts to their actual jurisdiction as long as we are only letting them exceed their actual jurisdiction occasionally, in a “narrow class” of cases. You know, when it’s really, really important to let them exceed their actual jurisdiction. Last time I checked, jurisdiction wasn’t just a suggestion about the kind of cases a court can hear.


Al Bahlul challenged his conspiracy conviction on Article III grounds because international tribunals such as Nuremberg have generally declined to try defendants for engaging in an inchoate, stand-alone conspiracy (e.g., an agreement without a completed crime).

Note the fudge: “generally.” Not generally. Always. No international tribunal has ever convicted a defendant of conspiracy to commit a war crime. Not one…

Weekly News Wrap: Monday, November 23, 2015

by Jessica Dorsey

Your weekly selection of international law and international relations headlines from around the world:


Middle East and Northern Africa






Events and Announcements: November 23, 2015

by Jessica Dorsey


  • Guest Researchers – Focus on the Environment and the International Judiciary: PluriCourts invite researchers in the field of law, political science, and philosophy with a focus on the environment and the international judiciary to apply for visiting research fellowship. The positions as guest researchers can vary between 3 to 12 months. We encourage applicants to apply as soon as possible and will prioritize applications for the academic year 2016. PluriCourts allocate financial support to selected researchers with a topic of special interest for the centre, but without other funding for travel and accommodation. Please indicate in the application the need for financial support (only for stays between 6 -12 months). For more information about the positions and how to apply, visit PluriCourts’ website.

Calls for Papers

  • The Editors of the Melbourne Journal of International Law (‘MJIL’), Australia’s premier generalist international law journal, are now inviting submissions for volume 17(1) by January 31, 2016. MJIL is a peer-reviewed academic journal based at the University of Melbourne which publishes innovative scholarly research and critical examination of issues in international law. Submissions and inquiries can be directed to law-mjil [at] unimelb [dot] edu [dot] au. For more information, please visit the website here.
  • The ILA British Branch Spring Conference 2016 on “Non-State Actors and Changing Relations in International Law” will be held at Lancaster University on 8-9 April 2016. This conference will examine the changing role of non-state actors in international law and their impact on law-making, obligations, responsibility and dispute settlement. We welcome papers on this subject, which might include, but are by no means limited to: (1) the nature and position of non-state actors within the international legal system; (2) their role with respect to the sources of international law, which may include their role in the formation of custom and in the conclusion of treaties; (3) the source and scope of obligations for particular non-state actors, such as businesses or corporations (e.g. sanctions, human rights, modern slavery), sporting bodies and organised armed groups; (4) the potential responsibility of these actors and its relationship to state responsibility; (5) the position of these actors in dispute resolution and enforcement mechanisms, whether judicial institutions, organs of international organisations or treaty regimes; (6) the special roles of non-state actors in particular areas of international law, such as international environmental law, international economic law (including investment law), the international law of armed conflict, international human rights law and international criminal law, amongst others. For further details see here. Abstracts of no more than 500 words should be submitted to j [dot] summers [at] lancaster [dot] ac [dot] uk by 31 January 2016.


  • Reforms of the Individual complaint mechanisms in the UN treaty bodies and the European Court of Human Rights: Symptoms and Prescriptions – Mutual Lessons? The concluding conference of the MultiRights project will take place at the University of Oslo on February 29 and 1 March 2016. The conference will focus on analyzing and comparing the reform processes of the UN treaty bodies and of the European Court of Human Rights (ECtHR) aiming at finding mutual learning experiences. A particular focus will be given to the following issues: 1) Procedure of selection of members and judges; 2) Case load situation; 3) Quality of reasoning; and 4) Margin of appreciation and subsidiarity For more information and to register for the event, please visit the conference website.

Our previous events and announcements post can be found here. If you would like to post an announcement on Opinio Juris, please contact us with a one-paragraph description of your announcement along with hyperlinks to more information.

A Treaty or Not a Treaty? My Senate Testimony About the Paris Climate Change Agreement

by Julian Ku

I had the honor and pleasure of testifying today before the U.S. Senate’s Environment and Public Works Committee.  The topic of the hearing was “Examining International Climate Negotiations” and the upcoming conference in Paris. My own contribution argued that an agreement with legally binding emissions reduction obligations should be submitted to the Senate as a treaty rather than as a sole executive agreement.  I further argued that the Senate should require to the State Department to clarify which parts of a climate change agreement are legally binding, and which ones are merely non-binding political commitments.

You can watch the oral testimony and the questions below on C-SPAN (my testimony starts around the 11’40” mark. Almost all of the testimony has to do with the substantive merits of such an agreement (about which I express no opinion), as opposed to the legal aspects. So I will go ahead and declare victory for my argument by default.

The ICC Gets Its New Headquarters — and They Are Amazing

by Kevin Jon Heller

A couple of years ago, I praised the winning design for the ICC’s permanent home but acknowledged that I preferred a different one. I’m happy to report that I was wrong, at least aesthetically: the Court’s new headquarters are absolutely beautiful. Here are a few photos:




You can tell the Court’s staff is eager to move into their new home, because there is a large sign in the current building’s foyer that is actually counting down the time. And I don’t blame them — the complex really is an architectural masterpiece.

That said, I confess that I still find the move a bit troubling, both because of the cost — approximately €190,000,000, though the ICC website dedicated to the project is strangely silent about finances — and because the grandeur of the new headquarters far surpasses the Court’s accomplishments to date. We can only hope that the Court grows into its new home — I would hate to see such magnificence wasted on rebels like Ongwen and deposed leaders like Gbagbo. This is the kind of dock suitable for the Bushes and Blairs of the world.

PS: On Facebook, my friend and SOAS colleague Stephen Hopgood — author of the must-read The Endtimes of Human Rights — criticises the “distant, imperious and abstract concept of justice” this kind of minimalist High Modernist architecture “symbolise[s] for the peoples of the whole, diverse world.” I think that’s an excellent point.

McAuliffe on the ICC and “Creeping Cosmopolitanism”

by Kevin Jon Heller

As I was researching a new essay on complementarity, I stumbled across a fantastic article in the Chinese Journal of International Law by Paidrag McAuliffe, a Senior Lecturer at the University of Liverpool School of Law. Here is the abstract of the article, which is entitled “From Watchdog to Workhorse: Explaining the Emergence of the ICC’s Burden-sharing Policy as an Example of Creeping Cosmopolitanism”:

Though it was initially presumed that the primary role of the International Criminal Court (ICC) would be a residual one of monitoring and ensuring the fulfilment by the State of its obligations under the Rome Statute, it has over time moved towards a more activist “burden-sharing” role. Here, the Office of the Prosecutor initiates prosecutions of the leaders who bear the most responsibility for the most egregious crimes and encourages national prosecutions for the lower-ranking perpetrators. Since at least 2006, the Prosecutor has committed to a formal policy of inviting and welcoming voluntary referrals as a first step in triggering the jurisdiction of the Court. The judges on the Court have approved these referrals, while the broader academic and activist communities welcomed this more vertical relationship with national jurisdictions and, significantly, have provided the intellectual justifications for it. Burden-sharing, a concept unmentioned at the Rome Conference establishing the ICC, is presented as an unproblematic, natural and organic emanation from the Statute. This article argues that this development was not in fact inevitable or mandated by the Rome Statute. It was chosen, and in justifying this choice, familiar modes of cosmopolitan-constitutionalist treaty interpretation fundamentally premised on the field’s virtue and indispensability have operated to enable a Court established as a residual watchdog to become a workhorse in individual situations by assuming the preponderance of responsibility for combating impunity.

I found myself repeatedly nodding my head in agreement while I read the article, particularly when it discussed how judges, prosecutors, scholars, and activists have relied on ambiguities in treaty interpretation to push a particular activist agenda at the ICC. The article reminds me of the critical ICL scholarship by two of my favourite scholars, Fred Megret and Darryl Robinson — both of whom the article cites quite often.

The article is a must read for anyone interested in the ICC and ICL scholarship more generally. You can find it here.

A Short Response to Ilya Somin: Does Self-Defense Mean the U.S. Can Invade and Occupy Syria?

by Julian Ku

Ilya Somin has updated his post at the Volokh Conspiracy to include my critique, and his response to my critique. I just want to add two more points to our little debate on the domestic legal effect of the North Atlantic Treaty’s Article V collective self-defense clause before we put it to rest. (For those of you looking for a broader discussion on the Paris attacks than our legal parsing, I recommending joining this Federalist Society teleforum today here at 2 p.m. EST).

1) Ilya argues that “[w]hile the use of force is discretionary under Article 5, treating an attack on an ally within the designated area as if it were an attack on the US itself is not… And in the event of an enemy attack on the US itself, the president has the legal authority to use force of his own volition, without additional congressional authorization”.

This is an interesting point, and I agree with Ilya that the President can use military force to defend the U.S. without going back to Congress.  So Ilya is reading Article V as a pre-authorization to the President to defend treaty allies with military force as if it were an attack on the United States.But this reading calls into question how much military force the President can use under this “pure” self defense rationale.  Surely, President Bush was authorized to defend U.S. territory on 9/11 and its immediate aftermath.   But did the 9/11 attacks also authorize the President to start bombing, and then to invade Afghanistan, without going back to Congress?  In other words, does the self-defense rationale allow all offensive actions against the attacker up to and including invasion and occupation of another country?

Similarly, do the Paris attacks(assuming Article V were invoked) allow President Obama to launch military strikes (and maybe invade and occupy) Syria?  Surely, the President could have ordered U.S. forces to defend France without Congress. But I’m just not sure the Article V self-defense rationale gets Ilya all the way to a full-scale war on ISIS.

2) On a historical note, Ilya takes issue with my characterization of the legal rationale for Article V as allowing the U.S. and its allies to comply with the UN Charter’s rules on the use of military force.  He argues that “[t]he true main purpose of Article 5 is to commit the signatories to a system of collective defense against attack…”

I don’t disagree that this was Article V’s “main” purpose, but my original post was focused on the legal purpose of Article V.  On that front, I think it is safe to say Article V was about ensuring NATO was in compliance with the then-new UN Charter, and much less about re-allocating war powers under the U.S. Constitution.

I should hasten to add that I am in favor of a robust military response to the Paris attacks (actually, I was in favor of a robust response before the Paris attacks too).  And unlike Ilya, I think the President has broad powers under the Constitution to use military force without explicit congressional authorization.  I just don’t think collective self-defense treaties like Article V are needed to authorize unilateral presidential action against ISIS.

Weekly News Wrap: Monday, November 16, 2015

by Jessica Dorsey

Your weekly selection of international law and international relations headlines from around the world:


Middle East and Northern Africa






Should the U.S. Even Bother to Invoke Article V of the North Atlantic Treaty After Paris?

by Julian Ku

Ilya Somin of the Volokh Conspiracy has suggested that if NATO invokes Article V’s collective self-defense language against ISIS as a result of the terrible Paris attacks over the weekend, President Obama’s ongoing use of military force against ISIS could be “legalized” as a matter of U.S. constitutional law.  Here is Ilya:

Article 5 provides a much stronger justification for the war against ISIS than the previous extremely dubious rationalizations presented by the Obama administration. But it cannot retroactively legalize the President’s previous illegal actions, or the similarly unconstitutional war against Libya in 2011.

I agree with Ilya that the Obama Administration’s current domestic legal justification for the war against the Islamic State is sketchy at best.  But I am not sure I agree with him that Article V should be read as a “pre-authorization” for the President to use military force without going back to Congress for a specific authorization.

Here is the full text of Article V:

The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defence recognised by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area.

Any such armed attack and all measures taken as a result thereof shall immediately be reported to the Security Council. Such measures shall be terminated when the Security Council has taken the measures necessary to restore and maintain international peace and security .

I agree that the horrible Paris attacks would constitute an “armed attack” on a member of NATO “in Europe or North America.”  But I don’t think Article V requires the other NATO members to provide military assistance.  Rather, “if such an armed attack occurs,” a NATO member “will assist the Party so attacked [France]…by taking forthwith…such action as it deems necessary, including the use of armed force.” (emphasis added).

I read this language as requiring the U.S (for instance) to assist the attacked party (France), and that this assistance could “include the use of armed force.”  But I don’t think it has to.

Moreover, Article IX of the North Atlantic Treaty states that “[t]his Treaty shall be ratified and its provisions carried out by the Parties in accordance with their respective constitutional processes.” (emphasis added).  I read this as requiring Parties to carry out provisions like Article V “in accordance with their respective constitutional processes.”  If you are someone who believes that Congress must authorize the use of force by the President in most cases, than this language would mean that the President has to go back to Congress.  This might actually happen. Republican presidential candidate Jeb Bush actually called for a “declaration of war on ISiS” today.  

Of course, if you believe (as I do) that the President has independent constitutional authority to use military force without Congress in most circumstances, than all Article XI does not limit the President much.

In any event, I don’t think it makes sense to read the NATO Treaty as saying much at all about domestic allocation of war powers.  The main legal purpose of Article V was (is) to allow NATO countries to act consistently with the U.N. Charter’s limitations on the use of force (such as they are).  Invoking Article V should allow the U.S. to use armed force to assist France consistently with the UN Charter.  That might have mattered if the U.S. and France weren’t already using military force against ISIS in Syria in ways somewhat inconsistently with the UN Charter.  But they have been bombing for months already, so I am not sure it is even worth invoking Article V at this point.

Events and Announcements: November 15, 2015

by Jessica Dorsey

Sponsored Announcement

  • EIUC and its partner universities Birzeit University (Palestine), Saint Joseph University (Lebanon), International University of Rabat (Morocco) and Ca’ Foscari University (Italy) are proud to present to you the second edition of the Master in Democratic Governance – Democracy and Human Rights in the Mena Region (DE.MA), starting in January 2016. DE.MA is a multidisciplinary curriculum offering courses in law, political science, sociology and other fields relevant to the study of democratic governance and Human Rights. Open to professionals and graduates, it will combine a theoretical and practical approach and it will deliver a professional Master’s degree (60 ECTS) from Ca’ Foscari University, Venice. The first semester from January to April 2016 is held at the EIUC premises in Venice and the second one from April to July 2016 takes place in one of the partner universities in the Master’s Consortium.

    This is meant to play an active role in the ongoing debate about the principles underpinning the transition of political regimes to democracy. It aims at:

    • Creating high-profile experts in the fields of democratic governance and the protection of human rights, allowing them to act as promoters of a process leading to the affirmation of the democratic principles;
    • Fostering the creation of an élite group of people committed to the promotion of democratic institutions;
    • Building a network of experts to be active in political institutions, in national and international, governmental and non-governmental organizations in the Region.

    Interested? Here are the practicalities: Registration deadline: 16 Nov 2015; First semester dates: 4 January 2016 to 15 April 2016; Second semester dates: from 18 April to 15 July 2016 Language: English, (knowledge of French and Arabic recommended); Teaching method: Face-to-face teaching. Tuition Fees: 3.750 euro. Tuition Waivers/Scholarships: EIUC offers financial support in the form of a partial contribution towards living expenses and/or a full or partial tuition waiver. This type of financial support is awarded to a limited number of students on the basis of academic achievement, need and geographical distribution. More information on the DE.MA, the professors and the programme can be found here.


  • The Department of the Navy, Office of the General Counsel has an open billet for a GS 15-equivalent attorney to join Strategic Systems Program’s International Law team. The details of the billet are attached and are accessible via this link. The job is focused on treaty implementation and compliance (emphasis on arms control treaties), foreign military sales, and U.S. export controls. The ad closes on Monday, November 16th.

Calls for Papers

  • The ASIL International Economic Law Interest Group will hold a works-in-progress workshop on Friday, January 29, in Philadelphia, at the Wharton School.  If you are interested in presenting a paper at the workshop, please submit an abstract by the end of the day on November 31st, 2015 to submissions [at] asil [dot] org. Please place “IECLIG Works in Progress submission” in the subject line of your submission. Abstracts can range from a paragraph in length to a page, and should include the author’s name and institutional affiliation. Papers should relate to the study of international economic law, broadly construed, be it related to private ordering, trade, investment, finance, or any of the other subjects that constrain the way that business is done across borders. The workshop is designed to offer a resource for those who cannot attend our December Heidelberg workshop done in conjunction with ESIL, to help scholars prepare for the February publication cycle, and to continue to broaden and deepen the interest group’s intellectual community. Papers selected for presentation will need to be submitted on January 15th; they will be circulated to the attendees of the workshop.  Attendees will accordingly be able to comment on all of the papers during the workshop, and may also be given responsibility to lead the discussion of one of them in particular. One need not present a paper or comment on a paper to participate. As is the norm for workshops sponsored by ASIL interest groups, participants will need to cover their own travel expenses.  Please do not hesitate to contact us should you have any questions about the workshop or paper submissions.


  • On Friday 27 November 2015, the Research Unit in Law at the University of Luxembourg will be holding a conference on ‘Frontex: legal questions and current controversies’. The conference will examine various legal issues concerning the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (Frontex) and its activities. Europe is faced with an ongoing influx of migrants, causing political controversy and public concern, and placing a critical focus on Frontex. The event will provide a platform for discussing of a number of issues starting with the legal status of Frontex in the EU legal order. Panels will cover the agency’s operational mandate and international activities and question its position as an actor on the global arena. The conference will also address the functional reality of joint operations
    led by the Agency. Matters related to Human Rights and the legal responsibility for agency activities will be discussed. An emphasis with be placed on particular cases of search and rescue operations, return operations and the obligation of non-refoulement under international law. The conference will bring together academics and practitioners from EU and international law backgrounds. Given the current refugee crisis and with Luxembourg currently holding the EU Presidency, the event could hardly be better-timed or placed. Details about the conference and how to register can be found here.
  • On 2 December 2015, on the occasion of its 50th anniversary (1965 – 2015), the T.M.C. Asser Instituut is launching the T.M.C. Asser Lecture for the benefit of The Hague’s national and international legal community, scholars, practitioners, judges, policy-makers and journalists who will be able to enjoy, on an annual basis, a lecture by an internationally renowned jurist and outstanding public intellectual. The Inaugural T.M.C. Asser Lecture, entitled, “Peace in the Middle East: Has International Law Failed?” will be delivered by Professor Joseph Weiler, President of the European University Institute in Florence, Italy, and University Professor at NYU School of Law. To further commemorate the Institute’s 50th anniversary, the afternoon’s programme includes the presentation of the first copy of the specially published Asser Jubilee Book entitled ‘Fundamental Rights in International and European Law. Public and Private Law Perspectives’, to Mr. Ard van der Steur, Minister of Security and Justice of the Kingdom of The Netherlands. With this annual lecture series, the T.M.C. Asser Instituut aims to contribute to The Hague’s tradition of promoting peace and international law. For further information, please consult the T.M.C. Asser website.
  • On the 14th of December 2015, a Seminar on Extraterritoriality in Port State Jurisdiction organized by the UNIJURIS research group will take place at the Faculty of Law of Utrecht University. The seminar will be divided into four thematic panels. The first two sessions will deal with approaches to port state extraterritoriality, the first focused upon the international shipping sector and the second upon the international fishing sector. The third panel addresses the question of advancing adequate labour conditions through port state extraterritoriality, and the final panel reviews whether there is a clash between the existing approaches and increasing port state extraterritoriality. The seminar will take place in Utrecht from 11:00 – 18:00 hours. For more information, please see the flyer: UNIJURIS seminar on PSJ. Participation is free but participants are kindly required to register before the 10th of December at the following email address: Secretariaat [dot] IER [at] uu [dot] nl.
  • On 7-8 January 2016, the Center for International Criminal Justice (CICJ) and the Faculty of Law, Vrije Universiteit Amsterdam will host a conference “Pluralist Approaches to International Criminal Justice”. The event is held with the financial support of the Royal Netherlands Academy of Arts and Sciences and concludes the research projectDealing with Divergence? National Adjudication of International Crimes funded by the Netherlands Organisation for Scientific Research (NWO). The conference provides a platform for an interdisciplinary and critical debate on the methodological, institutional, and cultural diversity in international criminal justice (see further information). Speakers include Elies van Sliedregt, Kai Ambos, Robert Cryer, Megan Fairlie, Kevin Jon Heller, Charles Jalloh, Sarah Nouwen, Nicola Palmer, Darryl Robinson, Carsten Stahn, James Stewart, Sergey Vasiliev, Alex Whiting, Harmen van der Wilt and others (programme). The conference will take place in Het Trippenhuis, Kloveniersburgwal 29, Amsterdam. Attendance is free but places are limited. Please register before 28 December.

Our previous events and announcements post can be found here. If you would like to post an announcement on Opinio Juris, please contact us with a one-paragraph description of your announcement along with hyperlinks to more information.

The Daily Caller and Alan Dershowitz’s Dishonest Attack on MSF

by Kevin Jon Heller

It was only a matter of time before the far right began to attack Medicins Sans Frontieres (MSF) for being in league with the Taliban — and thus implicitly (nudge nudge, wink wink) the actual party responsible for the US’s notorious assault on its hospital in Kunduz. And the attack has now begun. Here is a snippet from an article today in the Daily Caller:

International law experts are blasting Doctors Without Borders for forcibly removing civilian patients from the aid group’s Kunduz, Afghanistan, hospital and replacing them with wounded Taliban fighters when the city fell to the rebel control in late September.

Alan Dershowitz, an acclaimed Harvard constitutional lawyer and authority in international law, said that he was not surprised that the group, known as Medecins Sans Frontieres, favored Taliban fighters over civilian patients, telling The Daily Caller News Foundation in an interview that he regards Doctors Without Borders as “Doctors Without Morals.”

Dershowitz charged the group with having a long history of anti-Western political stances and of not being neutral. He says MSF “is a heavily ideological organization that often favors radical groups over Western democracies and is highly politicized.”

The lawyer said the doctors also were hypocritical. “What they violate is their own stated mandate and that is of taking no political ideological position and treating all people in need of medical care equally. It’s just not what they do.”


Yet MSF itself may have violated a whole host of humanitarian laws by its own admission that Kunduz hospital administrators agreed to discharge Afghan civilian patients at the behest of Taliban officials and replace them with wounded rebel soldiers.

The acknowledgement was buried inside a Nov. 5 “interim” report released by MSF that traced the internal activities at their hospital leading up to the attack.

MSF disclosed in its report that on Sept. 28, the day the city fell to rebels, hospital administrators “met with a Taliban representative to discuss the need to free beds for other critical patients due to the ongoing fighting, and therefore for some patients to be discharged.”

On Sept. 30, MSF passively reported that “a large number of patients discharged from the hospital, including some against medical advice. It is unclear whether some of these patients discharged themselves due to the discussion to free some beds between MSF and the Taliban representative.”

I want to focus here on the claim that MSF “admitted” in its November 5 report that it “agreed to discharge Afghan civilian patients at the behest of Taliban officials and replace them with wounded rebel soldiers.”

Quite simply, that is a lie. MSF makes no such admission in the report.

We can begin with September 28. Prior to that date, most of the wounded combatants in the MSF hospital in Kunduz were government soldiers and police officers. As of September 28, however, the balance shifted to Taliban combatants:

As was the case since the opening of the Trauma Centre, the vast majority of the wounded combatants were observed to be government forces and police. In the week starting 28 September, this shifted to primarily wounded Taliban combatants… As far as our teams are aware, after this time [the afternoon of the 28th], no more wounded Afghan government forces were being brought to the Trauma Centre.  (p. 4).

The next day, faced with an excessive number of patients, MSF met with the Taliban:

MSF met with a Taliban representative to discuss the need to free beds for other critical patients due to the ongoing fighting, and therefore for some patients to be discharged and for those who required nursing follow-up to be referred to the MSF Chardara medical post (p. 5).

At this point — September 29 — half of the wounded in the hospital were wounded Taliban fighters (p. 5). Patients then began to leave the hospital the next day, September 30:

Starting this same day a large number of patients discharged from the hospital, including some against medical advice. It is unclear whether some of these patients discharged themselves due to the discussion to free some beds between MSF and the Taliban representative or whether there were general concerns about security as rumours were circulating of a government counter-offensive to reclaim Kunduz city. At the same time as patients were being discharged from the hospital, new patients were being admitted (p. 5).

The MSF report is careful not to identify whether the discharged patients were civilians or combatants. But there is no indication in the report that MSF agreed with the Taliban “to discharge Afghan civilian patients”; that MSF actually discharged civilian patients because of any such agreement; or that discharged civilian patients were replaced by “wounded rebel soldiers.” Literally none.

Indeed, everything in the report points to precisely the opposite conclusion: namely, that MSF convinced the Taliban to remove wounded rebel fighters from the hospital to open beds for new patients. The patients that left the hospital were not “removed by MSF”; the report makes clear that they “discharged themselves,” in some cases “against medical advice.” Are we supposed to believe that MSF ejected civilian patients against the advice of its own doctors and then dishonestly claimed the patients left voluntarily? That’s Ben Carson conspiracy land.

Did some civilians voluntarily leave the hospital because fear of the fighting? Perhaps. But it’s difficult to imagine why civilians would trade the relative security of a well-marked civilian hospital for the uncertainty of weathering intense urban fighting in their homes — especially if leaving was “against medical advice.” It is far more likely that the wounded who discharged themselves were Taliban fighters worried about their safety — even in a civilian hospital, and despite their wounds — given the possibility of a “government counter-offensive.” After all, as noted above, more than half of the patients in the MSF hospital were Taliban on September 30.

To be clear, because of MSF’s commitment to neutrality, it is impossible to state categorically that most of the patients who left the hospital on September 30 were Taliban fighters, not civilians. But it is fundamentally dishonest for the Daily Caller and Alan Dershowitz to claim that MSF “agreed to discharge Afghan civilian patients at the behest of Taliban officials and replace them with wounded rebel soldiers.” MSF admitted no such thing.

NYU JILP Symposium: Lopez’ Responses to Comments

by Rachel Lopez

[Rachel Lopez is an Assistant Professor of Law and the Director of the Community Lawyering Clinic at Drexel University’s Thomas R. Kline School of Law.]

This post is part of the NYU Journal of International Law and Politics, Vol. 47, No. 4, symposium. Other posts in this series can be found in the related posts below.

First, I would like to thank Professors Drumbl, Roht-Arriaza, Teitel, and van der Vyver, who so generously offered their time and expertise to comment on my article. I have really enjoyed the opportunity to have these conversations with scholars whose writing has greatly influenced my own in near real time.

Response to Mark Drumbl

In a compelling and exquisitely written commentary, Professor Drumbl illustrates how collective memory (and storytelling more broadly) is evoked by survivors and perpetrators alike and reminds us of how thin the line between the two can be. He also highlights the contested nature of memory, resulting from a power struggle between those seeking to remember and those hoping to forget.

Professor Drumbl and I share much common ground in our assessment of the importance of remembrance after mass atrocity and how judicial proceedings can diminish its significance, which in turn frustrates and disenfranchises victims. We also agree about the notable concerns with permitting collective memory to be a source of evidence in the guilt phase of the criminal prosecutions.

Where Professor Drumbl and I part ways is when he suggests that the penal processes is so ill suited to accommodate collective memory that we should abandon that effort entirely. He astutely notes that the memories of survivors may splinter and diverge in ways that make its inclusion in judicial proceedings unworkable. I contend, however, that it is precisely for this reason that trials are such critical sites for the interjection of collective memory. On this point, I concur with legal scholar Mark Oseil when he argues that because trials are adversarial in nature, they are designed to accommodate dissensus and facilitate public discourse in ways that other institutions cannot. For instance, whereas truth commissions typically collect and catalog victims’ experiences into one official report that presents a single narrative, trials present multiple opportunities for the memories of different groups to emerge depending on who brings the claim and the scope of the conduct and events covered by it.

Professor Drumbl also cautions us that “[p]ushing one correct remembrance, and collectivizing it, risks memorializing the experiences of the strongest among the survivors while neglecting the recollections of the weakest.” I share this concern, but come to a different resolution about how to mitigate it. When lawyers are not permitted to admit collective memory and must rely on individual testimony alone, they are compelled to pick the strongest representative from their client base. That representative may engage in his or her own form of censorship, consciously or unconsciously, thereby excluding the voices of the broader affected community. On the other hand, permitting lawyers to submit victim impact statements in which a community collectively describes the harm from an alleged violation would broaden the number of voices who enter the process.

I also maintain that the lawyers are uniquely suited to act as preservers and promoters of collective memory, because of the trusting relationships they cultivate with their clients over time. In contrast, as Professor Roht-Arriaza and Laura Arriaza warn in Social Reconstruction as a Local Process, “a short-term truth seeking endeavor cannot hope to garner widespread trust among people of a deeply traumatized society, and thus the testimonies taken may be from those less affected, or more articulate…”

Furthermore, because lawyers owe fiduciary duties to their clients, they are better positioned to present their collective narrative. I fear that the external institutions that Professor Drumbl proposes as alternative sites for collective memory are more likely than lawyers to have divided loyalties. Since these institutions would obtain their mandates and likely their funding from external sources, they may be captured by outside interests that deviate from those of the victim group. In the interest of sounding neutral, they might also water down or incompletely portray victims’ stories. The problem of selectively authenticating one memory over another would be compounded.

If we aim to tether collective memory to remedies that more systematically address harms, I also believe that lawyers can play an important role in generating consensus among their clients about what relief is appropriate.

Response to Naomi Roht-Arriaza

Professor Roht-Arriaza offers a carefully considered and thoughtfully crafted commentary that furthers the conversation on the complementarity of collective memory and judicial proceedings.

First, she reminds us that not all post-conflict settings are the same and in some localities, communities may be so disrupted that collective memories are not formed. That observation aligns with my own experience working with societies in transition after mass atrocity and I would like to underscore my agreement with Jaya Ramji-Nogales that transitional justice must be bespoke. Put another way, both the form and objectives of transitional justice must be tailored to the local context and driven by homegrown demands. There is no one size fits all option in transitional justice.

For that reason, in some respects, what I suggest is quite narrow. As I explain in my article, “[w]hen I advocate for the admission of collective memory into judicial proceedings in this article, I am referring to the collective memory of groups of victims who were present or directly affected by the same event or experience.” Two preconditions are necessary: 1) there must be a group of survivors of the same event or alternatively groups of survivors who share a common experience and 2) they have must engaged in memory work and arrived at a common understanding of events.

As Professor Roht-Arriaza points out in her commentary, and I explain in my article, some of the rules of international and domestic courts may already lend themselves to the admission of collective memory. At the same time, other rules discourage attorneys from pluralizing the attorney-client relationship. For instance, pursuant to the International Criminal Court’s rules of evidence, attorney-client privilege is waived if the client discloses information to a third party, including fellow survivors. In addition, human rights lawyers, who were educated in countries with western legal traditions that propagate an individual-centered understanding of the law, may feel intrinsically wary of collective representation.

Professor Roht-Arriaza invites further discussion about how we might incorporate the on-ground experience of communities into the design and implementation of measures of non-repetition. It is my view that one critical step to accomplish that goal is to be more intentional about creating space for collective voices in judicial proceedings.

Response to Ruti Teitel