So says the WSJ’s account of today’s hearing on US ratification of UNCLOS. I still haven’t found the 193 minutes I would need to watch today’s UNCLOS hearing, but it seems like there is still some Republican opposition (remember it only takes 34 votes to block the treaty).

Wednesday’s hearing demonstrated the continued skepticism among Republicans toward the treaty. Sen. Robert Corker (R., Tenn.) said he hadn’t made a decision on ratification, but questioned how the Obama administration, which has been critical of the oil industry, could cite oil exploration in support of ratification. “My antennae are up,” he said.

Other Republicans said they suspected the treaty would impinge on American sovereignty, for instance, by forcing the U.S. to agree to international emissions controls to comply with treaty provisions on pollution over the oceans.

Sen. James Risch (R., Idaho), argued the treaty’s royalty-sharing provisions would essentially tax companies exploring the seabed, sending proceeds to developing nations and ceding American taxing authority to the United Nations. “My problem is with sovereignty,” he said. “If we give up one scintilla of sovereignty the country has fought for… I can’t vote for it.”

Sen. Jim Inhofe (R., Okla.) predicted the U.S. would have to give up more than $70 billion in royalties. “For the first time an international organization, in this case the United Nations, would have taxing authority over the U.S.,” Mr. Inhofe said.

Here is the website for the U.S. Senate Foreign Relations Committee with a (very long) video of the hearings on UNCLOS and the written testimony of Secretary of State Clinton, Defense Secretary Panetta, and Gen. Dempsey.

I am in grading hell right now, so I haven’t had time to go through the hearing video.  It looks, from my quick glance, to be the same exact arguments that have been made over the past 20 years on UNCLOS. (Did Sen. Lugar give that same statement back in 2002? Hard to say).   To move the ball along, we are organizing (for mid-June) an online debate on US ratification of UNCLOS between experts on the treaty.  Stay tuned!

• The head of the IAEA, Yukiya Amono, has said that a deal with Iran is very close ahead of talks in Baghdad with the UK, the US, France, Russia, China and Germany.
• The junta that toppled the government six weeks ago in Guinea Bissau has reportedly handed back the government control to civilians.
• US President Barack Obama’s administration pushes for ratification of the United Nations Convention on the Law of the Sea.
• South Sudan is claiming that Sudan has bombed and shelled its territory ahead of peace-talks between the two nations scheduled for next week.
• In Libya news, Tunisia is set to extradite former minister Al-Baghdadi Ali al-Mahmoudi to Libya in the coming weeks and the former chief of intelligence Abdullah al-Senussi is set to be tried in Mauritania for illegally entering the country; a trial in Mauritania will delay attempts to prosecute him for international crimes, either before the ICC or in Libya.
• The European Court of Human Rights delivered its judgment in Scoppola v. Italy, a case in which the Court decided that member states have the ability to decide if prisoners retain the right to vote. More context can be found at EJIL Talk.
• Human Rights Watch reports that Saudi Arabia is the only participating country of the 2012 Olympics that has not yet affirmed whether women will be allowed to participate in the games.
• Egypt is electing a new President today.
• As was the case a few years ago, there is once again a diplomatic dimension to the Eurovision Song Contest with Iran recalling its ambassador from Azerbaijan over claims that the organizers of the contest in Baku are including a “gay parade.”
• The BBC reports that a US drone attack has killed four in Pakistan.
• Australia’s Health Secretary mentioned during WHO talks that the tobacco industry is funding the WTO complaints by Ukraine and Honduras against Australia’s plain packaging laws due to come into effect in October.

Evelyne Schmid, a lecturer in law at Bangor University in Wales, has taken it upon herself to convert the 2,499 page non-searchable PDF into a searchable (but, alas, still 2,499 pages) text file. She has made the file available here. We all owe her our thanks!

Readers will recall that I followed the progress of my book on the Nuremberg Military Tribunals on the blog, from proposal to finished project. I received a great deal of positive feedback on those posts, as well as some very useful feedback on the project itself. (Also a couple of complaints that I was just being narcissistic, but you can’t please everyone.) So I thought I would do the same thing with my next book, which I will start working on full-time in a few months. Its somewhat pretentious title is A Genealogy of International Criminal Law, and it will be published by Oxford University Press in 2014 or early 2015. I can’t say enough good things about publishing my first book with OUP — John Louth, Merel Alstein, and their crew were an absolute pleasure to work with. They were unfailingly helpful, supportive, and (above all) understanding. As long as they were willing to have me, I wasn’t going to even consider a different press.

The new book hopes to provide the first comprehensive historical-theoretical study of the process of international criminalization.  Here is the introduction to the proposal I submitted to OUP:

It is an article of faith among international criminal law scholars that certain acts are directly criminalized by international law.  We no longer speak, as Georg Schwarzenberger once did, of “internationally prescribed municipal criminal law” or “internationally authorized municipal criminal law.”  Instead, we talk about “international crimes” – aggression, war crimes, crimes against humanity, genocide.  And we have a 63-page treaty, the Rome Statute, that not only defines those crimes, but also explains how individuals can be held criminally responsible for their commission and specifies the defences that they can raise when accused of them.  There is thus no longer any real doubt that international criminal law exists in the “strict” or “true” or “material” sense.

Needless to say, it matters whether an act is criminal under international law or under domestic law.  Because we now have “international crimes,” not simply municipal crimes that are prescribed or authorized by international law, defendants accused of such crimes cannot argue that their actions were legal under domestic law or were taken in their official capacity, entitling them to immunity from prosecution.  In the words of the Nuremberg Tribunal:

Individuals have international duties which transcend the national obligations of obedience imposed by the individual State. He who violates the laws of war cannot obtain immunity while acting in pursuance of the authority of the State if the State in authorising action moves outside its competence under international law.

Nor is that all.  Because there are international crimes, international law permits, and sometimes even requires, states to prosecute them no matter where, by whom, or against whom they are committed – conditional universal jurisdiction.  Because there are international crimes, states are likely obligated to prosecute or extradite suspects in their custody who commit them – aut dedere, aut judicare.  And, of course, because there are international crimes, there are international criminal tribunals that have the authority to prosecute them.

Despite the importance of the “international” in the concept of an “international crime,” scholars have almost completely ignored the mechanics of the international criminalization process.  What does it mean to say that an act is directly criminalized by international law?  How does that transposition of the municipal to the international occur?  One looks almost in vain for answers to these questions in the scholarly literature.  No book-length analysis of international criminalization exists, and the number of articles dedicated specifically to that issue can be counted on two hands – the most notable examples being Georg Schwarzenberger’s “The Problem of an International Criminal Law,” published in 1950, and Robert Cryer’s superb “The Doctrinal Foundations of International Criminalization,” published in 2008.

This book will fill that lacuna…

[Laura Dickinson is the Oswald Symister Colclough Research Professor of Law at the George Washington University Law School in Washington DC.]

This is the sixth day in our discussion of Professor Dickinson’s book Outsourcing War and Peace: Preserving Public Values in a World of Privatized Foreign Affairs. Links to the related posts can be found below.

Steve Vladeck’s post focuses on the interesting question of whether prosecutions of contractor employees abroad under MEJA might sometimes result in indictments for activities that are sufficiently unrelated to the US military mission that they are either unconstitutional or at least unwise.  Steve’s concerns are certainly worth taking seriously (though I confess to thinking that the far bigger problem related to contractors is how little prosecutorial activity there has been to date).  Nevertheless, I’m not sure I agree that the activities described from the Brehm case are so unrelated to the US governmental mission that it would necessarily be problematic to prosecute.  Indeed, as my post from yesterday indicates, one major problem of using private military contractors is that there is an insufficient rule of law culture among employees of these firms.  If that is true, then we might think that it would be beneficial to subject contractor employees to broad US governmental authority while in theater, even for acts that are unrelated to their job duties.  This extension of authority could help cement a psychological tie to the US and help develop a greater culture of compliance with US constitutional and statutory norms of behavior.  In any event, given that contractors work directly for the US Government to carry out fundamental governmental initiatives, I think it is not such a stretch to apply US criminal law to their activities, even if such activities are not directly related to the mission to be performed.

• Iraq is buying US-made drones in order to carry out surveillance over their oil fields.
• After a suicide bomber kills 90 people in Yemen, al-Qaeda vows more attacks until the US-backed campaign against militants stops.
• The US is apparently weighing their stance on secrecy of the drone program employed to carry out targeted killings, according to the Wall Street Journal.
• Former dictator of Guatemala, Efrain Rios Montt, will face a second genocide trial after a judge ordered he could be prosecuted for ordering a 1982 massacre that killed 201 people.
• As our own Kevin Jon Heller pointed out, Libya’s Abdullah al-Senussi has been indicted in Mauritania.
• Reuters reports that for the first time in history, the US Treasury is dealing directly with a foreign nation as China has been allowed to bypass Wall Street and go directly to the source to buy US debt.
• At least 12 Colombian soldiers have been killed during an ambush by FARC before the rebel group retreated across the border into Venezuela.
• In order to improve working conditions for crews and monitors, New Zealand is banning foreign-flagged fishing vessels within its waters; New Zealand has the fifth-largest exclusive economic zone in the world.
• Reuters has an analysis of what lies ahead for NATO with the end of operations in Afghanistan looming. The US Ambassador to NATO has said that the alliance has no plans for a military intervention in Syria.
• The NY Times Magazine has a column on The Syria Paradox, offering an explanation why the structure of the Syrian economy prevents the formation of a coalition against Assad.
• Reuters has an Insight on the EU’s Foreign Policy Chief Catherine Ashton, and her work outside the limelight.
• Australia and Malaysia have signed a Free Trade Agreement, Australia’s ABC News reports.
• The WSJ has reported on a few details emerging in the Chinese media on the Chinese fishermen who were held hostage by North Korea.
• In a twice-yearly report on the economic outlook, the OECD warns about the risks of eurozone spillovers to the global economic recovery. The IMF has, in its report on the UK, warned the UK about the threats to its recovery if the eurozone crisis escalates.
• Foreign Policy talks about the future of the eurozone and describes current problems as “Europe’s Big Fat Greek Heart Attack.”

So reports ABC News (and multiple other news outlets):

The man who ran Libya’s extensive spy network and was considered one of the closest confidants of ex-leader Moammar Gadhafi was indicted in Mauritania on Monday and transferred to a public jail, according to a justice official.

Abdullah al-Senoussi, Libya’s former head of intelligence, is wanted by the International Criminal Court, as well as by France and Libya for crimes allegedly committed during his time at Gadhafi’s side.

The judge in Mauritania is indicting al-Senoussi on a technicality, after the ex-spy chief tried to enter Mauritania disguised as a Tuareg chieftain, said the official who requested anonymity because he is not authorized to speak to the press.

On the run since the fall of Tripoli last year, al-Senoussi attempted to enter the Nouakchott airport in March on a fake Malian passport, after boarding a flight from Morocco. He attempted to cross the passport control wearing the elaborate headdress and the flowing robes associated with the Tuareg nomads, an ethnic group that was closely allied with Gadhafi and who live in the band of countries including Mali located at the base of the Sahara Desert.

That’s my basic reaction to the release of the full judgment in the Taylor trial, which checks in at an utterly absurd 2,499 pages.  (The judgment is downloadable, assuming you have a very fancy computer, here.)  2,499 pages is clearly a new record for a judgment of an international tribunal, especially in a case with one defendant.  By way of comparison: the IMT judgment, which concerned 24 defendants, is little more than 100 pages, while all twelve NMT judgments, which concerned 185 defendants, run a little more than 3,000 pages.

I will have more to say after I’ve had time to read (some of) the judgment in detail, but I have one concern worth mentioning now: namely, my worry that the length of the judgment will have a direct impact on the length of Taylor’s sentence — an impact unrelated to the facts found by the Trial Chamber, the nature of the crimes of Taylor was convicted, and the mode of participation on which his convictions are based (aiding and abetting and planning, both forms of accessorial liability).  My initial and somewhat impressionistic sense is that Taylor deserves a sentence between 30 and 35 years, given (1) that the SCSL’s longest sentences to date have been 50 and 52 years, and (2) that the defendants who received those sentences were convicted as principals, not accessories.  That assessment puts me squarely in the middle of the experts I’ve informally polled about what they think Taylor’s sentence should be — some have gone as high as 40, others have gone as low as 25.  All agree, however, that the 80-year sentence requested by the prosecution would be completely disproportionate in light of the SCSL’s previous sentences.  It is nevertheless difficult to imagine the Trial Chamber imposing such a “lenient” sentence on a defendant whose judgment — for him alone — is almost 2,500 pages long.  The sheer mass of the judgment would seem to require a longer sentence, even if that sentence would be inconsistent with the facts and law found by the Trial Chamber.  I hope I’m wrong about that; I hope the judges will be able to separate the amount of work that has gone into the judgment from their objective assessment of Taylor’s culpability.  But I fear the former will bleed into the latter.  After all, judges are not machines.

We’ll see.

[David Sloss is the Professor of Law and Director of the Center for Global Law and Policy at Santa Clara Law School]

In Samantar v. Yousuf (2010), the Supreme Court directed lower courts to apply common law rules to resolve immunity defenses raised by individual foreign government officers, except in cases where a treaty provides the controlling rule. The Court remanded Samantar to the lower court to decide, in the first instance, the proper content of the common law rule. The Fourth Circuit heard oral argument on this issue last week.

The defendant in Samantar raised both a status-based immunity defense and a conduct-based immunity defense. This post focuses on conduct-based immunity defenses in cases, like Samantar, where plaintiffs raise claims under the Alien Tort Statute (ATS) and/or the Torture Victim Protection Act (TVPA). I propose a simple, straightforward rule that courts can apply to resolve conduct-based immunity defenses in such cases—use the same rule that courts apply when federal, state, and local government defendants raise qualified immunity defenses to domestic constitutional claims. Under that rule, which I call the Harlow rule, a defendant is entitled to immunity unless he or she violated “clearly established . . . rights of which a reasonable person would have known.” Harlow v. Fitzgerald (1982).

There are three reasons for courts to adopt the Harlow rule as the controlling rule for conduct-based immunity defenses in ATS/TVPA cases. First, U.S. courts are very familiar with the Harlow rule: they apply it routinely in 1983 cases and in Bivens cases. Hence, application of a similar rule in ATS and TVPA cases is likely to produce a consistent and coherent body of case law.

Second, the Harlow rule is substantially similar to the “Sosa test” that courts apply to determine whether a plaintiff has a federal common law cause of action under the ATS. See Sosa v. Alvarez-Machain (2004) (holding that plaintiffs can bring federal common law claims under the ATS only for violations of a sub-set of international law norms that have “definite content and acceptance among civilized nations”). In essence, Sosa instructed the lower courts not to recognize a federal common law cause of action for violations of international law unless the plaintiff alleges violation of a “clearly established” international norm. Thus, application of the Harlow rule in ATS cases would promote judicial efficiency because courts could apply essentially the same test to determine whether the plaintiff has a cause of action and whether the defendant has a valid immunity defense.

Third, application of the Harlow rule in ATS and TVPA cases would promote U.S. foreign policy interests. For the past few decades, a key goal of U.S. foreign policy has been to promote universal adherence to fundamental human rights norms. If U.S. courts grant immunity to individual defendants who violate clearly established human rights norms, the courts would undermine the longstanding U.S. policy of promoting universal adherence to those norms.

My proposal to apply the Harlow rule in ATS and TVPA cases is likely to provoke three principal objections. First, one might argue that the Constitution grants the executive branch authority to make immunity determinations in individual cases, and that courts are required to defer absolutely to the executive branch on these issues. This argument is not persuasive. As Professor Wuerth has shown, careful analysis of constitutional text and structure refutes the claim that the Constitution grants the President final authority to decide whether an individual defendant in a particular lawsuit is entitled to conduct-based immunity. See Ingrid Wuerth, Foreign Official Immunity Determinations in U.S. Courts: The Case Against the State Department, 51 Va. J. Int’l L. 915 (2011). Moreover, Professor Keitner’s analysis of judicial decisions from the late eighteenth century shows that the Founding generation believed that resolution of immunity defenses in individual cases was a judicial function, not an executive function. See Chimène I. Keitner, The Forgotten History of Foreign Official Immunity, 87 N.Y.U. L. Rev. xxx (forthcoming 2012) (available on SSRN).

Even if the Constitution does not require judicial deference to the executive branch, one could argue that a judicial policy of case-by-case deference to the State Department is desirable because it is likely to advance U.S. foreign policy interests. I respectfully disagree. For various reasons, the State Department has a deeply rooted institutional bias that privileges expedient, short-term goals over the nation’s long-term interest in promoting universal adherence to fundamental human rights norms. There are compelling separation-of-powers reasons why the courts should act as a check on this unfortunate, short-sighted bias of the State Department bureaucracy. The United States needs one branch of the federal government to adopt a long-term view, rather than a short-term view. The courts are well positioned to serve this function because they are insulated from short-term political pressures.

The final objection to the proposed Harlow rule is that it is inconsistent with customary international law. Some scholars claim that customary international law requires the United States to grant immunity to foreign government officials for all acts performed in an official capacity. See Curtis A. Bradley & Laurence R. Helfer, International Law and the U.S. Common Law of Foreign Official Immunity, 2010 Sup. Ct. Rev. 213. In my view, the customary international law rule is more indeterminate than some scholars have claimed. It is clear that customary international law requires states to recognize some form of conduct-based immunity for acts performed in an official capacity by foreign government officers. Moreover, customary international law may not preclude states from granting conduct-based immunity to government officers who violate clearly established human rights norms. However, the argument that customary international law requires states to grant conduct-based immunity—even when officers violate clearly established norms—is not persuasive. There is not sufficient evidence of state practice to support a claim that customary international law requires immunity in these circumstances. Hence, application of the Harlow rule in ATS and TVPA cases would not be inconsistent with the nation’s international legal obligations.

[Laura Dickinson is the Oswald Symister Colclough Research Professor of Law at the George Washington University Law School in Washington DC.]

This is the fifth day in our discussion of Professor Dickinson’s book Outsourcing War and Peace: Preserving Public Values in a World of Privatized Foreign Affairs. Links to the related posts can be found below.

In my previous posts, I have identified three mechanisms of accountability and constraint.  In this final post, I focus on a fourth such mechanism, one that is often ignored by legal scholars but one that might actually be the most important of all:  the role that organizational structure and institutional culture play in creating a context where public values are likely to be internalized within groups.

To illustrate what I mean, consider one of the uniformed military lawyers I interviewed shortly after he returned from being embedded with a combat brigade.  This lawyer told me how important it is that “lawyers sit in the room” when combat decisions are made.   He emphasized that, “when there’s a military decision-making process in place, the lawyer should be there.  If you are involved, everyone can see the value added.  The staff and the commander see you as part of the team rather than a weenie lawyer.”  Another lawyer recounts, “My brigade commander was brilliant, and he expected alternative views … If an IED [improvised explosive device] went off, and we were going to respond, he wanted to know, ‘Is it a good shoot or a bad shoot? … [And if] I had concerns, he listened to me.”

These and other interviews I conducted with uniformed military lawyers illustrate the critical role that these lawyers play on the battlefield in supporting an organizational structure and institutional culture that fosters respect for core public values.  The existence of accountability agents, such as uniformed military lawyers, is important.   So too is the fact that these lawyers are integrated with operational employees (they comingle with troops and serve on the commander’s staff), they are committed to the core values at stake, they are at least somewhat independent within their own culture (a lawyer who doesn’t see eye to eye with a commander can seek “top cover” by talking to the lawyer assigned to that commander’s commander), and they can recommend that a commander invoke the military justice system in cases of abuse.

As I note in the book:
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