Archive for
February, 2005

US Government Ordered to Release Padilla or Charge Him

by Peggy McGuinness

In this opinion handed down today, Judge Henry Floyd of the US District Court in Charleston granted Jose Padilla’s habeas petition, explicitly rejecting the government’s position that the President has broad powers to detain US citizens as enemy combatants. The government has 45 days to charge Padilla with a crime, hold him as a material witness, or release him. Here’s a quote from the judge’s conclusions of law, which relies on Youngstown and Hamdi:

It is true that there may be times during which it is necessary to give the Executive Branch greater power than at other times. Such a granting of power, however, is in the province of the legislature and no one else — not the Court and not the President. “The Founders of this Nation entrusted the law making power to the Congress alone in both good and bad times.” Youngstown, 343 U.S. at 589. “[A] state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens.” Hamdi, 124 S.Ct. at 2650 (internal citation omitted). Simply stated, this is a law enforcement matter, not a military matter.

SCOTUS Considers Application of ADA to Foreign-Flagged Vessels

by Peggy McGuinness

In a case argued this morning at the Supreme Court, the Department of Justice has sided with a group of disabled cruise passengers who sued Norwegian Cruise Lines for failing to provide the kinds of accommodations required on public transportation under the Americans with Disabilities Act. NCL argues that, because their ships fly under the Bahamian flag, extraterritoriality doctrines should be applied, which would exempt them from ADA regulation in the same way that they are exempt from federal labor laws. (NCL’s brief is here.) DOJ and the plaintiffs’ argue that the ADA can be applied to foreign flagged vessels operating in US waters precisely because they come in and out of US jurisdiction and operate as a public accommodation. (Plaintiffs’ brief is here.)

This is a close and interesting question. Under international law, ships are generally only subject to the jurisdiction of the state under whose flag they sail. But NCL and other cruise lines routinely invoke US jurisdiction in contracts of adhesion (e.g., passenger tickets) for torts and other disputes that arise onboard their cruises. Further, it seems that NCL would have a tough time arguing that the US cannot insist, for example, that civil rights laws banning racial discrimination in public accommodations be extended to cruise ships embarking from US ports. On the other hand, cruiselines choose to register under foreign flags precisely to avoid certain regulatory restrictions and costs (i.e., taxation, labor and employment laws), and broad application of the ADA to foreign-flagged vessels might conceivably apply not only to cruise ships, but also to every merchant marine vessel that ever enters US waters. As was noted in this morning’s oral argument, compliance with the ADA in those circumstances would be extraordinarily expensive and a burden on trade.

Like earlier extraterritoriality cases (See, e.g, EEOC v. Aramco), whatever the Court decides –and it may confine its ruling to the narrow circumstance of ships that offer public accommodation — this one may prompt Congress to go back and define when and how it thinks the ADA should apply to foreign-flagged vessels.

Georgetown Law is hosting a panel discussion on the case tomorrow.

UN Human Rights Commission: Membership Not the Only Problem

by Peggy McGuinness

Looking beyond the very real problem of human rights abusers sitting as members of the UN Human Rights Commission, UN Watch Executive Director Hillel Neuer (a former colleague from my days in practice) has a cogent essay in last week’s TNR ($) criticizing the Commission’s 1503 procedure. The 1503 procedure was introduced in the 1970s to enable individuals to bring complaints against states directly to the Commission. In theory, it is a great idea. In practice, it has failed utterly. Why? Confidentiality of the procedure protects the perpetrators at the expense of the complainants, and the politicization of the process used to determine which complaints get through to the full commission has meant almost no real action at all. Neuer concludes that the confidential 1503 procedure does more harm than good; burying some problems (Darfur) in favor of repeatedly blasting favorite targets like Israel. The real action is in the public 1235 procedure of the Commission — “naming and shaming” of violators — which takes place at the plenary session in the Spring. Neuer describes the central challenge of reforming the system:

In many ways, the world’s foremost human-rights body is at its nadir. In December it was indicted by the United Nations. itself for “eroding credibility and professionalism” and for being dominated by states whose interest is “not to strengthen human rights but to protect themselves against criticism or to criticize others.” Kofi Annan, responding to proposals contained in the report that included this unusually candid diagnosis, is expected in March to announce a major attempt to fix the commission, while leading member states are expected to present their own visions for reform during the commission’s first week of ministerial speeches, also next month. Thus far, none of the suggestions (for instance, expanding membership to all 191 U.N. members) provides a solution to the core challenge: How can the objective enforcement of human rights, an apolitical task, be pursued by a body made up entirely of governments, which are inherently political? That is the crucial question confronting the U.N. Commission on Human Rights. And it’s much bigger than Cuba, Zimbabwe, and Saudi Arabia.

Mexico, Genocide, and the (Non)Supremacy of International Law

by Julian Ku

Central America expert David Holiday points me to this LA Times op-ed yesterday on the recent Mexican Supreme Court decision to bar an indictment for genocide against a former Mexican President. If correct, the article suggests that the recent fad for genocide indictments in Latin America are being driven almost completely by the requirements of international law. Thus, as I argued here, the Bolivian genocide indictment is probably an attempt to force the U.S. to extradite their former President. Similarly, the Mexican indictment (according to the article) was an attempt to circumvent domestic Mexican law, namely Mexico’s statute of limitations. As the article explains,

In Mexico, domestic laws still trump international treaties. Although many nations have surrendered their sovereignty to international norms on human rights, Mexico has not. So, because he had no other choice, the special prosecutor resorted to the charge of “genocide” against former President Luis Echeverria in the 1971 killings of student protesters. The prosecutor believed that perhaps crimes against humanity might be punished even if murder committed long ago could not. But the court ruled the Mexican Constitution establishes a 30-year statute of limitations that not even international treaties on genocide can void.

It is not clear to me whether the decision was based on Mexican constitutional law or not, but either way, it does appear that Mexico views international law in the same way as the United States does — that is to say, international law cannot supersede domestic law simply because it is international law (please correct me if I’m wrong about this Andreas).

There are all sorts of good reasons why domestic law, especially domestic constitutional law, should trump international law (even international human rights law) when the two kinds of law come into conflict. The U.S. has always had this rule (albeit with some permutations I won’t go into here) and it is interesting that Mexico has the same approach. If so, perhaps Mexico will be more understanding if the United States Supreme Court does not go out of its way to overrule U.S. domestic law based on a judgment won by Mexico in the International Court of Justice in Medellin. OK, they almost certainly won’t, but at the very least Mexico will have to recognize that all the U.S. court would be doing in Medellin, if it rules against the Mexican petitioner, would be what Mexico’s own Supreme Court just did, namely, give effect to domestic over international law.

Agent Orange and the Alien Tort Statute

by Julian Ku

Arguments will begin today in U.S. District Court for the Eastern District of New York in Brooklyn over a motion to dismiss an Alien Tort Statute lawsuit by Vietnamese nationals seeking damages from manufacturers of Agent Orange, an herbicide used by the U.S. during the Vietnam War. This remarkable suit is brought as a class action on behalf of every Vietnamese national who was exposed to Agent Orange. According to the complaint, this class consists of “not less than two to four million persons.” No dollar amount in damages is specified, probably any amount wouldn’t fit on a page of their brief.

The plaintiffs seem to face serious obstacles (as explained in the defendants here and here)(1) the 10-year statute of limitations for Alien Tort Statute claims would appear to bar this suit; (2) it seems highly doubtful that spraying herbicides was a violation of international law at the time of the Vietnam War (apparently, this has become a matter of dispute between two well known international law figures, George P. Fletcher and W. Michael Reisman); (3) any finding that such spraying was a violation of international law may create separation of powers problems because the President plainly authorized the spraying as part of his war powers; (4) it is also highly doubtful that defendant manufacturers are liable under international law for the actions of the U.S. government.

On the other hand, the plaintiffs wisely filed their lawsuit in the court of Judge Jack B. Weinstein who is a respected federal judge, but let’s face it, is hero of the plaintiffs’ bar. So even though I think the defendants appear to have the stronger arguments, I put the plaintiffs’ chances of success (in district court) at better than 50 percent.

The Relevance of Legality in War (Part III)

by Peggy McGuinness

I want to weigh in on what has been a fascinating discussion of war and legality in the context of Iraq and Kosovo and also the lingering issue of the gulf between the US and Europe on these fundamental questions.

First, on Julian’s and Chris’ comments about the rules governing the use of force and doctrines of interpretation: the problem for both sides is that the rules only really worked for a short period of time in the 1990s. At the time, it looked as though the end of the Cold War would bring about a Security Council that would more or less operate as originally intended by the drafters of the Charter. Today it looks more like a historical window that opened and is now, if not totally shut, only partially ajar. Reliance on these rules and doctrines of interpretation therefore becomes relatively meaningless when divorced from the liberal principles underlying the international system. This is precisely why I raised the issue of legitimacy in my earlier post on a NATO force for Darfur. I agree with Seth Weinberger’s comment to Julian’s post that question of legitimacy lies at the center of the multilateral rules governing the use of force, and should be at the heart of any discussion of how to revise or revamp the rules. The interplay between law and legitimacy is interesting in this context: 1) the rules themselves confer a kind of legitimacy (i.e. collective security through cooperative decision-making as a reflection of international liberalism); and 2) the use of force itself as an attempt to enforce liberal values (e.g., human dignity and security).

Because it was a case in which these two points conflicted, Kosovo was a challenge to a central orthodoxy in international law about the non-use of force except in self-defense. As Chris pointed out, plenty of international law scholars did and still do denounce Kosovo as an illegal intervention (in addition to Tom Franck, see, e.g., Mary Ellen O’Connell, The UN, NATO, and International Law, After Kosovo, Human Rights Quarterly 22, 2000). But Kosovo forced the UN and the international community to grapple with the fact that the UN mechanism created to enforce the rules may have been, gasp, an impediment to preserving and defending the very values for which it was created. The use of NATO is one way to carry out a collective use of force through an organization that is based on the same principles as the UN, save one: universal membership. (Indeed, the North Atlantic Treaty borrowed language on collective security almost wholesale from the UN Charter.) It is one reason why I support the use of NATO in Afghanistan and would support in Darfur.

Second, Julian hasn’t been paying enough attention when he asks “do you know anyone who wanted to go to war in Iraq but thought it was illegal, or opposed the war but thought it was legal? I don’t.” As one astute anonymous comment noted, one of the architects of the current Iraq war, Richard Perle, famously stated on the record that the war was illegal. (See the uproar his statement caused in the UK here). And the tone had certainly been set by the Bush’s statement that he didn’t need a “permission slip” to defend US interests. Attempts within the Bush administration at expressing legal justification for the war — based on either the emerging doctrine of pre-emptive war or on past UN Security Council resolutions — were clearly post hoc and (as Kevin Heller points out in his comment) shifted as the facts and political justifications changed over time. Ironically, these attempts to provide legal justifications put the administration where I don’t think it wanted to be (certainly not where Perle thought they should be) — arguing over doctrinal rules governing Security Council resolutions.

Julian raises an important point: the apparent irrelevancy of the international legality of the use of force in US political discourse — including throughout the mainstream media — and the centrality of it in European political discourse. Why does it not matter (to Democrats or Republicans) whether sending American troops into battle is unlawful in the eyes of the rest of the world? Why does it matter to Blair or Schroeder or Chiraq? I don’t think it is simply a question of ICC jurisdiction, but rather goes to the relationship between countermajoritarian international law and democracy. In an early post here, I discussed Jed Rubenfeld’s take on this issue, which I think gets it right. To grossly oversimplify his point: because of its history of nationalism Europe sees post-WWII international law as necessary to constrain majoritarian tendencies; the US sees post WWII international structures as a way of implementing majoritarian views. But this deep division on questions of international governance (with the exception of trade regulation) is the “elephant in the room” of US-European relations. And the elephant did not arrive when Bush was elected president; it has been there since the fall of the Berlin Wall. This is one reason why the Medellin case will be watched closely across the pond.

At our symposium on judging this weekend, Dan Farber made an observation about judging that applies equally to international law (certainly as reflected in a couple of the student comments posted in response to Julian’s and Chris’ posts). Most students, he noted, enter their first year of law school fascinated — and comforted — by the idea that the law is set of rules and exceptions that can be applied almost mechanically. They generally balk at the idea that two judges can look at the same set of rules and exceptions applied to the same set of facts and come up two different results. So they react in one of two ways: throw up their hand and conclude that all judging is either based on what the judge had for breakfast or raw political preference; or retreat into the rules and insist that their view of them is right. The hard slogging for us professors is getting them to the middle where principled decision making meets policy choices. As our discussion here shows, this is even more so when talking about the rules governing the use of force, which were always intended to meld law with politics.

War, Law, and Consistency

by Chris Borgen

In discussing the Iraq War, many apologists for the Administration have picked up and discarded doctrines, methods of interpretation, and justifications, with alarming speed and with little concern for consistency. At the end of the day, if international legal rules concerning warfare are something they consider important, then they will have to enunciate a coherent view of what those rules are and where they came from.

That hasn’t happened yet, although Julian’s most recent posts made some observations that I would like to consider further.

Julian’s opening points can be essentially boiled down to this: international law matters in places like the U.K. because of enforcement concerns (such as through the ICC) or in Germany because of domestic political concerns. He then continues:

But the legality question matters far less in the U.S. because the domestic legality of the Iraq War is essentially undisputed (Congress authorized it, etc. etc.). The international legality of the Iraq War appears to have absolutely zero political significance (just ask John Kerry). Obviously, many people oppose the war, but the legality of the war is far from the most important reason they oppose the war.

This conflates legality with political expediency. Sure, U.S. political leaders may not worry much about international legality because American voters largely do not, but that in no way makes the U.S. action legal. Moreover, simply because the President met domestic legal standards for invading Iraq does not absolve the U.S. from its responsibilities under international law, responsibilities that we largely drafted at the birth of the U.N.

The next part of Julian’s argument is interesting for the way that it is a double-edged sword. He writes:

I am always struck by how formalist international lawyers can get sometimes with respect to interpreting the law governing the use of force. I wish sometimes they would be just as formalist with domestic constitutional and statutory law (where is that right of abortion in the Constitution anyway?)

As my comments to Julian’s earlier post point out, I am shocked by how conservatives jettison any aspect of textualism, originalism, or formalism the minute they discuss issues of international law and the use of force. All of a sudden we need not be so concerned with what treaties say and what framers meant but instead we should accept that there are “new rules” that are somewhere out there (even though no one else but the lawyers from the Office of Legal Counsel seem to be able to perceive them).

That is not “purposive” interpretation or viewing the Charter as a “living” text; it is, rather, tortured interpretation.

Take the idea that resolutions from either 1990 or 1991 could somehow justify the current Iraq War. The key resolutions, Resolution 678 from 1990 and 687 from 1991 are instructive in what each does or does not say.

Where in the 1990 resolution, or in any of the resolutions it cites to, is there anything about the authorization of the use of force to sweep Iraq for WMDs? Where is there anything besides specific resolutions concerning ousting Iraq from Kuwait? What Resolution 678 does have, though, is a grant of the ability to use force (an authorization “to use all necessary means”) to uphold Resolution 660 (the ousting of Iraq from Kuwait).

As for Resolution 687 from 1991, there are mentions of WMDs and missile capabilities but there is no operative language that authorizes the use of force. Not only is there no “all necessary means” language, there is an explicit catalogue of the means of implementing the language on WMDs. The method of implementation? Weapons inspections. If there was a consensus for “all necessary means” language it would have been there; such consensus did not exist (as has been reiterated constantly by members of the Security Council in the run-up to the current war) and so the language wasn’t there. You can’t use the language from the 1990 resolution because it is explicitly tied to ousting Iraq from Kuwait.

If anyone thinks that we should read these resolutions as authorizing the current war, then I would pose to them the question as to whether they would use such loose interpretational standards in domestic statutory construction (I wouldn’t).

As for Kosovo, as I have written before, I do not think there is consensus on humanitarian intervention and I, personally, do not see the NATO bombing of Serbia as one that was legal under norms of international law. I think the most honest analysis of this came from Professor Tom Franck of NYU who said that while we may view the act as morally legitimate (protecting an oppressed population), we cannot say that under the current set of norms it was legal. That means one of two things—either going forward we chould change the rules, or states that continue to act in this way face potential state responsibility. (I would note that there was an ICJ case by Serbia against the NATO countries, but it was dismissed in the jurisdictional phase, without a finding on the merits.)

Why can’t those who support the Iraq War take a similar approach? Why can’t they say we are acting because we think this is something that we must do, even if it is illegal. We will act and we will face the legal repercussions of our actions squarely because we do not want to take the rules of armed conflict and interpret them away into absurdities. We will act in this way because the world is a better place with these rules than without these rules.

That is an argument that I could respect. I may disagree with factual issues concerning the threat of Iraq (no WMDs), but, legally (and morally) speaking, that would be a position that at least would be consistent.

But consistency is in short order these days in Washington.

The Relevance of the Iraq War’s Legality (cont’d)

by Julian Ku

Thanks everyone for commenting here. Although I have to run to class, I can’t resist a quick response.

I think international law matters, even for the use of force, but what is interesting is why it matters. It obviously matters more in the UK, where the PM felt he couldn’t act without legal authorization and where UK soldiers could be subject to the jurisdiction of the ICC.

Legality also matters because many foreign governments care a lot about legality. I would suggest that some of these foreign governments are selective about what kind of international legality they care about (France and Russia come to mind) but there are countries like Germany (that is to say, modern Germany) who can authentically claim to set their foreign policy on use of force within the framework of IL. They no doubt would have opposed the war whether or not it was “legal” but I don’t discount that countries like Germany really believe that the international legality matters.

But the legality question matters far less in the U.S. because the domestic legality of the Iraq War is essentially undisputed (Congress authorized it, etc. etc.). The international legality of the Iraq War appears to have absolutely zero political significance (just ask John Kerry). Obviously, many people oppose the war, but the legality of the war is far from the most important reason they oppose the war.

Because it hasn’t really mattered as a matter of U.S. law or policy, the discussion of the legality of the Iraq War is far less developed than it is in the UK. Specifically, the U.S. government ha not had to seriously defend the legality of the Iraq War.

I suppose most U.S. international lawyers would say it violates the UN Charter, but I do think there are real counterarguments. I am always struck by how formalist international lawyers can get sometimes with respect to interpreting the law governing the use of force. I wish sometimes they would be just as formalist with domestic constitutional and statutory law (where is that right of abortion in the Constitution anyway?) Is Chris absolutely sure what the intent of the Sec’y Council was at the various points during the Iraq crisis (in particular, with respect to the 1991 resolutions)? I suppose we can say: all parties now say they never authorized it, but what about at the time? If Iraq had breached any part of the 1991 resolutions ending the Gulf War, is Chris sure that no action could be taken in response?

In any case, there is that looming question of Kosovo. I just don’t buy the post-hoc rationalizations for the rather aggressive use of military force there (that would be bombing Serbia into submission, than occupying an entire province indefinitely). In that case, there wasn’t even a plausible claim of UN authorization and I am unsure why the use of NATO made everyone feel better. NATO openly stated it was not acting in self-defense. Sure, there was a humanitarian exception. Uh, where is that in the UN Charter exactly? Why isn’t that the product of “tortured interpretation”? So why can’t John Yoo and others say that there is the “suspected WMD” exception to the UN Charter? Sounds good to me and if you took a vote, I am sure it would get much more support.

Look, Kosovo may have been a good war and Iraq a bad one. But the “legality” is just not all that clear in either case. And international lawyers lose even more credibility among other lawyers and non-lawyers, I think, when they insist (like Sands does) that the Iraq War is obviously and blatantly illegal.

The Domestic Enforceability of ICJ Judgments (The WSJ Weighs In)

by Julian Ku

Today’s Wall Street Journal has an interesting, essentially right, but somewhat overbroad editorial ($) on the upcoming Medellin case before the Supreme Court. Medellin, most of you no doubt recall, will consider the domestic legal effect of an International Court of Justice judgment finding the U.S. in violation of its treaty obligations under the Vienna Convention on Consular Relations. In particular, the ICJ has ordered the U.S. to provide review and reconsideration for foreigners (particularly Mexicans) who were convicted of capital crimes and sentenced to death but whose initial arrest violated their treaty obligations.

The Journal rightly identifies the core issue, which is not whether the U.S. violated the treaty (it did) nor whether it is bound by the treaty (it is). Rather,

[t]he danger here lies in the remedy. Letting the ICJ tell Texas how to run its courts would move the U.S. in the direction of the European Union, which has a supernational legal system to which national courts must bow. Not far down the line would be an ICJ ruling declaring the death penalty illegal and ordering Texas to get rid of capital punishment.

I think there is some truth to this conclusion, but it is overbroad. Is the Journal arguing that the ICJ could never tell Texas”how to run its courts” because this would automatically turn us into the EU? Does the Journal believe this slow transformation is happening when U.S. courts conform their interpretations of treaties to comply with NAFTA rulings (which is arguably more analogous to how the EU system go started anyway)?

My own view coincides with the views set forth in an amicus brief in Medellin that will appear on Monday signed by a number of law professors (including me). Let me just say here (without giving away the argument) that the real question is not whether an international court could ever have direct authority over domestic courts (they might in some circumstances), but whether the treatymakers (the President and the Senate) intended for that to happen when the ratified the Vienna Convention and whether Congress has agreed to allow such direct judicial enforcement. As the brief on Monday will explain (drafted by the estimable Paul Stephan at UVA), for a variety of reasons, this is almost certainly not the case for Medellin or any other foreigners seeking enforcement of ICJ interpretations of the Vienna Convention.

The Journal editorial also reveals that there is a battle going on between the State Department and the Justice Department over whether the U.S. government should also file a brief in support of Texas. This is actually a more interesting question in many ways. The U.S. has said it has an obligation to comply with ICJ judgments (if for no other reason because it wants other countries to do the same). Although compliance does not necessarily mean judicial compliance, it would be odd for the U.S. executive to fulfill its international duty to comply with an ICJ judgment by filing a brief in support of Texas, which presumably does not want to comply with the ICJ judgment.

One way to square this circle would be for the U.S. government to file a brief saying: “We believe the ICJ judgment is valid, binding, and it is our duty (as the United States) to comply. But we (meaning the executive) will take care of compliance through non judicial mechanisms and we agree with Texas that there is no authority for this court to order compliance with the ICJ judgment here. ” I’ve explained in my past writings that the traditional mechanism for compliance would be for the President to call up the Governor of Texas and ask him to halt the execution or at least order a new hearing to consider whether the treaty violations made a difference in the conviction and/or sentence. Call me crazy, but I think this would do it and I don’t see why, at that point, foreign countries could continue to complain.

Will they? I’m not as well-plugged in as the Journal or other much better known law profs. We’ll have to see on Monday.

World Health Organization Watch: Today Tobacco, Tomorrow All Pharmas?

by Julian Ku

The World Health Organization is surely one international organization folks from all political stripes can support, no? Well, maybe…unless you are a fan of tobacco and/or the protection of IP rights for pharmaceutical companies.

On Monday, the WHO Framework Convention on Tobacco Control will go into effect. The Convention requires state parties to ensure tobacco sold in their countries have strong warnings and that advertising is limited or prohibited. The United States signed, not surprisingly, because it appears that the U.S. will have do very little to comply with this treaty given its already stringent controls on tobacco. Any non-smoker who has hung out in a Paris cafe, however, will wonder at France’s audacity in signing. Still, can a world ban on tobacco be far behind?

Meanwhile, a coalition of non-governmental groups formally petitioned WHO to initiate a treaty to create Kyoto-style regulation of pharmaceuticals. According to the FT,

Member states should pledge to invest a percentage of their gross domestic product in medical innovation, and would be allowed to trade “credits” with others through a mechanism similar to that in the Kyoto protocol designed to reduce environmental emissions.

They should also consider redirecting funding away from a traditional model based on intellectual property protection, and encourage the use of open sourcing to stimulate the sharing of information among medical researchers.

A working draft can be found here. The basic idea is to try to shift the way pharmaceuticals are developed away from large corporations who acquire IP rights and who are able to then extract huge profits toward an “open source” government supported system. I strongly doubt this could be more efficient or more effective than the current system at developing new drugs, although it may end up making drugs cheaper and more accessible. Still, this is a very ambitious treaty, but my guess is that it is yet another global governance initiative that the U.S. will not be signing up for anytime soon.

Missouri Law School Symposium on Judging: Blackmun’s Internationalist Legacy

by Peggy McGuinness

Out here at the University of Missouri-Columbia we are hosting a symposium this weekend (Feb. 25-26), “Reflections on Judging: A Discussion Following the Release of the Blackmun Papers.” The line-up of speakers includes judges (Duane Benton, 8th Circuit, Colleen McMahon, SDNY), scholars (Suzanna Sherry, Dan Farber, Ellen Deason, Ted Ruger, Greg Sisk, Larry Wrightsman, Joseph Kobylka, Chris Wells, Martha Dragich, Richard Reuben) and at least one Supreme Court watcher, Tony Mauro, discussing Blackmun’s legacy, what we mean by judging, and what makes for “good” or “bad” judges. Full details are here. For those interested in watching, the panel on Saturday morning is scheduled to be taped by C-Span.

One aspect of Blackmun’s legacy that goes largely overlooked — and about which yours truly will be commenting on Saturday morning — is the extent to which he was one of the Court’s strongest “internationalists.” In the context of judging, the term “internationalist” is generally applied to those who not only take seriously the need for efficiency in transnational business relations (See, e.g., Blackmun’s majority opinion in Mitsubishi v. Soler) and our treaty obligations (See Blackmun’s dissents in Alvarez-Machain and Sale v. Haitian Centers Council) , but also find space in constitutional jurisprudence for customary international law and the opinion of other courts on matters such as the death penalty. For a summary of how Blackmun thought the Court should treat international law and the “Opinions of Mankind,” see his short essay, The Supreme Court and the Law of Nations, reprinted in the 1994 Yale Law Journal. I will blog more on this following the symposium.

Hegemony and International Law

by Chris Borgen

Professor Geoff Manne of Lewis and Clark has written an interesting response to my previous post. The text of my post and his comment can be found here.

He begins by stating:
…hegemony IS internationalism, and thank god we’re the hegemon. I don’t say that out of some banal, jingoistic patriotism. I say that because in a (relatively) anarchical world, it ain’t “international law” calling the shots, it’s the guy with the big stick.

Professor Manne is correct in stating that hegemony is a form of internationalism. However, it sits on a continuity of many forms of internationalism ranging from empire, through multilateralism, and all the way to some sort of supranationalism where sovereignty is all but stripped away. Assuming for the sake of argument that globalization means that the U.S. needs some form of internationalist policy as opposed to isolationism, this leads to two questions: (a) is hegemony the form of internationalism that best suits our interests, and (b) if so, are we practicing hegemony in a manner that best suits our interests.

As I see it, (a) is academic because, for the time being, we are the hegemon: the U.S. sets the tone for international institutions and norms through its statements, its funding priorities, and through other state practice. So I want to go directly to (b): are we doing this in a strategically sound manner. And here, I would say that the answer as of late would be “No.” And my answer here relates to my caveat in (a), that we are the hegemon, for the time being.

Hegemony fades. Ask Venice; ask Spain; ask the United Kingdom. The overweening power that the U.S. has today will not last forever, and probably not for our lifetimes. This is not to relegate the future U.S. to minor power status or to claim that the U.S. is in absolute decline, but it recognizes that other powers—the E.U. and China and, to a lesser extent, Brazil, Iran, and Japan—will increasingly be rule makers as opposed to rule takers due to their increasing economic, political, and military strength relative to the U.S. And I deliberately put the strengths in that order, because in day to day affairs, it isn’t military strength that’s key, but economic power and political persuasion. We’re not going to bomb India into stopping software piracy or fire off some cruise missiles to open the EU to U.S. agricultural products.

So, if hegemony inevitably wanes, we should use our power now to define a system that will protect our interests in the long run. This is the difference between wise hegemony and predatory hegemony. Or, as Robert Keohane would ask, what type of institutions are we setting up for the period “After Hegemony?”

This is where many conservatives get it wrong. Due to knee-jerk anti-multilateralism, they miss the opportunities that we have in building institutions that ensconce our values in the international system. This was the genius of Dean Acheson and the other “wise men” architects of the UN and this is why Feith’s do-it-yourself attitude is poor strategic thinking. Wise hegemony uses multilateralism (and international institutions in particular) to secure the hegemon’s interests for the period after hegemony.

Professor Manne continues by stating that my

…argument rests on the assumption that the UN actually enforces, and that all other states follow, international law. It is the dream. But it isn’t reality. States do whatever they want whenever they can.

Here, he not only misconstrues my argument, but the logic of multilateralism as a whole. I argue for the wisdom of using international institutions precisely because “states do whatever they want whenever they can.” Multilateralism, properly constructed, winnows the leeway of states doing “whatever they want.” If we build the institutions in a manner that reflects our values and interests, then we constrain states from doing things we don’t like (proliferate nuclear weapons, stifle trade) and promote behavior that we value.

Some conservatives like to use the UN and the use of force as the example proving that multilateralism doesn’t work. This is a straw man argument and it is more than a bit tiresome. The UN is comprised of dozens of departments and agencies covering as many issue areas. Moreover, there is a wide variety of other international institutions, global and regional, covering a multitude of issues. Oft-times conservatives (and liberals) complain about these institutions—the IMF, the World Bank, and the WTO come to mind—being too powerful, not too weak.

But let’s get back to this “states do whatever they want” argument. The WTO, for example, is clearly effective in its enforcement and states generally follow its rules (we sure do). So the issue isn’t multilateralism per se, but institutional design.

But this focus on enforcement measures misses the greater power of international institutions—the ability to frame the terms of debate. Let’s take the hard case: matters of national security. At first blush one may say that compliance with the UN Charter on issues of non-aggression is low, but it is by no means nonexistent. Rather, the Charter sets terms of debate, the expectations of what is or is not acceptable, and plays a role in the shaming of states that don’t follow its rules. The norms of the UN were effectively used by the previous Bush Administration in 1991 to rally a large coalition to push Saddam Hussein out of Kuwait. If the UN really was irrelevant, then why did the current President spend so much time with Security Council debates? Note that in circumventing the UN process we now have a war that is perceived by much of the world as illegitimate and unnecessary (where are those WMDs?) and we are largely going it alone, spilling our blood and spending our treasure because our actions are viewed as being outside of acceptable norms.

Multilateralism matters. We can use it to our advantage or we can ignore it at our own risk. We can build or reform institutions that help us but we cannot simply act as if we can go it alone. As Dr. Thomas Barnett had put it, Dirty Harry has to come clean, set aside vigilatism, and build lasting institutions if he wants a sustainable peace. (See also here and here.)

Professor Manne’s closing point is instructive about how some conservatives miss the point:

But we need not fully despair for lost liberalism. As Robert Kagan points out, liberalism has two, sometimes competing elements: 1) a reliance on rules and 2) the promulgation of liberalism (which is to say, intolerance for illiberalism). … the US, liberal stalwart hegemon that it is, is actively engaging in the latter…

And if the liberals would just realize that number 1 is impossible, but 1 out of 2 ain’t bad — we’d all be on the same page.

Liberalism (in the classic sense that Prof. Manne uses it here) is inherently rule-based. It is meaningless to say we have liberalism without some reliance on rules. How else would we have fair trade or a respect for sovereignty or the protection of individual rights (to property, to life, to political freedoms) if you did not rely on mutually agreed upon rules? The U.S. can’t enforce these norms everywhere or even in enough places that would make the world a secure place, even if only secure enough for our own national interest.

If liberalism matters, then rules matter. You can’t get (2) in any long-term sense without building up a respect for the rules in (1). And if conservatives would just realize that (2) is impossible in the long run without (1), then we’d all be on the same page.

Mexico Genocide Indictment Barred by Statute of Limitations

by Julian Ku

Mexico’s highest court ruled yesterday that a 30 year statute of limitations nullified the indictment of one of its former presidents on charges of genocide. This appears to be another case (like the recent Bolivia indictment) raising the question of whether genocide can apply to a government’s attack on a group of protesters (this time 45 deaths occurred and its not obvious whether an ethnic group was involved) but I’m also struck by another interesting legal aspect of the case.

Apparently, Mexico’s prosecutors claimed that the ratification of the Genocide Convention in 2002 required Mexican courts to lift any statute of limitations on charges of genocide. But the Mexico court held that the “interpretation” attached by Mexico upon acceding to the convention allows Mexico to continue to apply the statute of limitations to genocide charges. This is a controversial practice in the U.S. as well because the U.S. has attached similar declarations (though not with respect to statute of limitations) to all of the major human rights treaties it has ratified (for a defense of this U.S. practice, see here). It is interesting that Mexican courts, like U.S. courts, have sided with the domestic lawmakers (the Mexican government) over the international ones on this tricky question.

Does the Legality of the Iraq War Matter?

by Julian Ku

Although the legality of the Iraq War under international law has been a subject of some interest among academic international lawyers, there is not much evidence that this question troubled American decisionmakers (does anyone remember John Kerry complaining about the legality of the Iraq War?). But the U.K. is another matter.

The “illegality” of the Iraq War has been used as a defense to criminal charges by protestors who broke into a UK military base. Moreover, the legality of the Iraq War could be important to UK soldiers charged by the new ICC (to which the UK is a party). For this reason Prof. Phillippe Sands’ new book, Lawless World, which its publisher describes as a “coruscating account of how the Bush and Blair administrations are breaking the law and trying to rewrite the rules ” governing the use of military force under international law is making waves in the UK.

This excerpt in the Guardian charges that the UK’s Attorney General, Lord Goldsmith, who is supposed to give independent legal advice to the UK Government, was leaned on by the U.S. and Tony Blair’s political advisors to deem the Iraq War legal under international law. Tory opposition leaders are already calling for a release of this legal advice and a parliamentary investigation.

This is a complicated issue. So I’m generally unpersuaded by polemics (like Sands’ book seems to be) suggesting the illegality of the Iraq War was such an easy question. (see this defense of the legality of the war here in the American Journal of International Law by the ubiquitous John Yoo). I’m similarly unsure about the Kosovo intervention, despite Peggy’s attempts to justify it here. I can’t help thinking that the only reason Kosovo is uncontroversial and the Iraq War remains controversial (among international lawyers) is that most international lawyers supported Kosovo but opposed Iraq on policy grounds. Put another way, do you know anyone who wanted to go to war in Iraq but thought it was illegal, or opposed the war but thought it was legal? I don’t.

Putting all this aside, for U.S. lawyers, the most interesting tidbit from Sands’ book is about future Legal Adviser of the State Department John Bellinger. Sands writes:

On February 11 2003, Lord Goldsmith met with John Bellinger III, legal adviser to the White House’s national security council. The meeting took place in the White House. An official told me later: “I met with Mr Bellinger and he said: ‘We had trouble with your attorney; we got him there eventually.'”

Sounds like a good guy.

Israel takes on the ICJ (Updated)

by Julian Ku

Israel’s State’s Attorney Office has issued a report rejecting the International Court of Justice’s advisory opinion that Israel’s construction of a wall dividing Israelis and Palestinians violated international law. The opinion held that:

The ruling last year by the International Court of Justice on the separation fence between Israel and the Palestinians was based on erroneous and outdated information…

The Israeli State Attorney’s Office concluded that:

The lack of a factual infrastructure and the superficiality of the analysis constitute a substantial blow to the legal validity of the international court’s adamant findings and the legitimacy of its conclusions.

I don’t have the 170 page report (nor do I plan to read it, even if it is in English) but if there really are factual errors in the ICJ’s analysis, this is yet another reason the ICJ should have avoided issuing an advisory opinion here, where the facts (e.g. where the wall went and who owns which territories) are enormously important.

UPDATE: The factual mistake in the ICJ’s decision, according to the Israeli Ministry of Foreign Affairs sounds substantial.

According to the state prosecution, the judges assumed that the fence would annex 16 percent of the West Bank to Israel, whereas the actual fence route authorized by Attorney General Menachem Mazuz only includes 3.3 percent of the West Bank. Furthermore, the state argued, Mazuz’s approved route did not include three enclaves that would have pushed the fence deep into West Bank territory in the areas of the Ariel, Ma’aleh Adumim, as well as around the Gush Etzion bloc, located south of Jerusalem.

Whoops!

Douglas Feith and the Law of the Jungle

by Chris Borgen

So Douglas Feith doesn’t mind setting aside sovereignty at times. Other countries’ sovereignty, that is. And when the U.S. decides it should be set aside, without having to resort to U.N. approval.

This is not internationalism, it’s just hegemony. By saying that Feith and the international law community may not have that many differences, Julian’s post makes a mole-hill out of a mountain.

Feith walks an impossibly fine line: he speaks of the “U.S. devotion to a well-ordered world of sovereign states” but also of the need to set aside sovereignty when there is a risk to international security. The problem is who gets to decide that a risk warranting such an extreme act exists.

Since sovereignty is at the core of the international system, the system is designed to protect state sovereignty and place the burden on those who wish to pierce it. Thus, while international law may have much to say about human rights, it is still reticent on the topic of military intervention in order to protect human rights. Such military excursions, riding roughshod over a state’s sovereignty, must be approved by the U.N. Security Council. That is the mechanism drawn up by the U.S. at the founding of the U.N. and it is still the consensus of the international community but it is not what Feith seemingly envisions as part of the new rules.

Perhaps Feith doesn’t want the U.S. to be burdened by having to get Security Council approval. While there may be extreme examples that may warrant intervening without U.N. authorization, he hasn’t shown that this has been a problem in the post-Cold War world (the Iraq example is not persuasive in this regards). Should we toss out the U.S. designed U.N. mechanism for Feith’s do-it-yourself approach in deciding when sovereignty should be set aside?

When assessing a proposed rule, it is usually a good idea to consider what would happen if someone else acts on the basis of this new rule. China, perhaps fearful of new Taiwanese military acquisitions upsetting the distribution of power in the Pacific, uses this new “rule of the road” to pre-emptively strike Taiwan (which to them isn’t even really a state anyway). India gets worried over Pakistani proliferation and, citing this new rule of the road, decides an immediate bombing campaign is in order. Perhaps Iran decides Israel’s nuclear capability, coupled with the intransigent “Palestinian Question” destabilizes the region too much. Pick a scenario. Under Feith’s rule, any of these actions could be justifiable, if not legal.

One may argue that, no, Feith meant only “good” states (human rights respecting, democratic) could employ this rule against “evil” states (terrorist supporting, rights abusing). But of course the problem is that one man’s terrorist is another man’s freedom fighter and each of these states sees itself as good and the other as evil. And, in Feith’s formulation, there is no recourse to the decision of the international community as a whole; there is no external check. (A coalition of the willing is no check.) In a do-it-yourself system everyone can claim to be good and argue that the other is evil and just do it.

The problem with Feith’s rule is that it fosters what he fears: a world of aggression and instability. Arguing that the U.S. can set aside another state’s sovereignty at will (regardless as to whether it has some allies on board) opens a Pandora’s Box for other states claiming the same right. This is not a rule of the road, it is the law of the jungle.

The U.N. isn’t perfect, but it’s definitely better than that.

Can Killing 60 People Constitute Genocide?

by Julian Ku

An email asks about the Bolivia genocide indictment:

“Why would you think that the repression of 60 people over natural gas would constitute genocide? You’re the lawyer — tell me.”

I take it that the email is skeptical that genocide could occur where only 60 people were killed and where the purpose of the repression was to promote natural gas development. These are both good points and I certainly didn’t mean to opine on the merits of the indictment. I am neither an expert on the Genocide Convention (Peggy, Chris, help??) nor am I familiar with the facts of the case in Bolivia, but, as the email points out, I am a lawyer.

So let’s go to Article II of the Genocide Convention:

[G]enocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group

Under the text of the Article II, by ordering the killing of 60 Bolivian Indians (as I believe the case in Bolivia charges), the ex-President’s actions could be found to meet Article II(a). But the real core of the Article is to prohibit actions with the intent to destroy a national, ethnic, racial, or religious group. No minimum number of deaths would be needed to constitute genocide, but, for obvious reasons, it would be easier to prove “intent to destroy, in whole or in part” a group if the alleged genocide was aimed at a large proportion of that group.

I suppose that the case in Bolivia might try to bring in the natural gas development plans as part of the intent to destroy the Indian group and the repression and killings as only one incident in a larger plan. This seems possible, but ultimately, it seems implausible to me that this could be proven with any certainty.

Still, while “genocide” is an international crime, countries like Bolivia may have defined the crime differently. The indictment here is brought in Bolivian court and there is no requirement under the Genocide Convention (I don’t think) to limit the strictness of the Genocide definition.

The real practical lawyering here will turn, as I suggested, on the question of extradition from the U.S. The U.S. has agreed in the Genocide Convention not to refuse extradition of individuals charged with genocide (as defined in the Convention). Presumably, the ex-President will try to argue that this whole indictment is simply a “political offense” for which the U.S. is not obligated to extradite. And here, he might usefully attack the Bolivia indictment on the grounds the email suggests: that this is not a plausible allegation of genocide under the Convention. This decision thus will ultimately be made by the U.S. government, which apparently has not even noticed this indictment has occurred (scroll down for the State Dept Spokesman’s non-response to the question).

Wyoming Meets International Law

by Julian Ku

One of the things I’ve grown to love about blogging are the random little stories you come across on the internet that you would have never found before. This amusing account of Wyoming Senator Mike Enzi’s town meeting back at home in Casper, Wyoming that should remind high-minded international lawyers that international institutions aren’t all that popular back (literally) on the ranch. Among the questions posed to Sen. Enzi by his constituents:

Judy McCullough of the Powder River Basin Resource Council asked if Congress would be voting to remain in the World Trade Organization, because she heard that the renewal comes up every five years.

The WTO, she said, overrides the U.S. Constitution.

Likewise Maureen Emrich asked about the Law of the Sea Treaty, which she said would turn over U.S. sovereignty to the United Nations.

Maybe this little exchange goes some of the way toward explaining to baffled foreigners some of the more anti-internationalist tendencies of U.S. foreign policy?

ICC Watch: A Delicate Situation in Uganda

by Julian Ku

Ugandan peace mediators are continuing to complain about the ICC’s interference in their efforts to broker a peace treaty. As Reuters reports:

Uganda has offered amnesty to Lord’s Resistance Army (LRA) rebels, but the prospect of indictments by the international court has stopped some top commanders surrendering, along with hundreds of children they have kidnapped during the conflict, mediators said on Tuesday.

“The International Criminal Court (ICC) just wants to prove itself at the cost of peace, and they seem not to care,” leading mediator Betty Bigombe told Reuters. “I have told the prosecutor that the moment they issue arrest warrants, I will stop the peace process.”


As I pointed out here, this is the first test of the ICC Prosecutor’s political judgment. Like it or not, an investigation here would have serious political consequences and needs a careful handling. As the U.S. has argued all along, the ICC needs to make political as well as legal decisions. Choosing between going forward with arrest warrants here and backing off to try to preserve a peace agreement is just such a decision.

Debating the Domestic Enforcement of ICJ Judgments

by Julian Ku

The Supreme Court is poised to consider the domestic legal effect of a decision of the International Court of Justice in Medellin v. Dretke (set for argument in March). The Columbia Law Federalist Society and the Columbia Journal on Transnational Law held a talk yesterday between Professors Curtis Bradley (of UVA and now Duke) and Lori Fisler Damrosch (of Columbia) which was live-blogged by a devoted (and unbelievably fast typing) law student. Prof. Bradley recently left the State Department’s Legal Adviser’s Office and Prof. Damrosch has filed an amicus brief in the case arguing that U.S. courts are required to enforce the ICJ’s judgment so both know as much about this topic as anyone.

This is a complicated issue and I have many, many thoughts on this topic, in fact way too many for this blog post. For now, let me point you to my work on this question here and here . Additionally, this brief summary by Prof. Bradley provides a good way of thinking about this question.

Douglas Feith Explains the "Rules of the Road"

by Julian Ku

Card-carrying “neocon” Douglas Feith, the Undersecretary of Defense for Policy (a position in some ways analogous to Stephen Krasner’s position), delivered an important address to the Council on Foreign Relations last week. In it, he offers a re-definition of sovereignty subordinated to liberal values that Krasner may or may not agree with. He stated:

As the enormities of genocide and other acts of gross inhumanity perturbed established ideas about international law, weapons of mass destruction now challenge statesmen of the civilized world. Even a small and poor state may now be in a position to produce the means to cause devastation to other people — damage far beyond the ability of such a state ever to remedy or recompense.

The world has decided that sovereignty shouldn’t protect a government perpetrating large-scale crimes against humanity within its own borders. Before us all now hangs the question of how long-standing ideas about sovereignty can be squared with the dangers of biological or nuclear weapons. Should governments with troubling records of aggression, support for terrorism, human rights abuses and the like be allowed to invoke sovereign rights to protect their development of catastrophic weapons that threaten the sovereign rights of others in the world? This is a question for which there is no simple, objective answer.

He then goes on:

To contemplate that question is to come to understand why the United States cannot possibly win the war on terrorism by military means alone — or by itself alone. The United States can win the war — it can defeat terrorist extremism as a threat to our way of life as a free and open society — only through cooperation with allies and partners around the world.

Finally, he sums up:

Our nation’s most basic interest is to protect the freedom of the American people–our ability to govern ourselves under the constitution. The sovereignty of the United States is another way of referring to this freedom. The United States strengthens its national security when it promotes a well-ordered world of sovereign states: a world in which states respect one another’s rights to choose how they want to live; a world in which states do not commit aggression and have governments that can and do control their own territory; a world in which states have governments that are responsible and obey, as it were, the rules of the road.

If you substitute “human rights” for “weapons of mass destruction” and “international law” for “the rules of the road”, I think you have a vision of global order not all that far from mainstream internationalists. Perhaps the biggest difference, which isn’t addressed in this speech, is that Feith does not see international institutions as the central or even basic mechanism for promoting this liberal vision. Rather, it will be the U.S. working as “partners” with other like-minded sovereign states. Still, as a matter of basic principles, this vision shares more with the Bush Administration’s critics in the international law / human rights community that those folks probably want to admit.

Conservatives and International Law

by Julian Ku

Last week, a U.N. committee adopted a resolution recommending the General Assembly adopt a declaration against human cloning. The resolution grew out of an earlier proposal by Italy (supported by the Bush Administration) for an international convention to ban human cloning. I don’t have anymore to say about the merits of banning human cloning by international treaty than I do about the merits of reducing global warming. But I do think this kind of conservative activism on the international scene reveals a tension in the modern American conservative movement over that movement’s attitude toward international law and institutions.

A number of conservative pro-life NGOs, using tactics pioneered by their liberal counterparts, worked hard to get the U.N. to support a ban, and although there is apparently little prospect of an international treaty, such a treaty was the logical and avowed goal of the NGOs’ advocacy at the UN. Contrary to Bradford Short’s implication, even a declaration of the U.N. General Assembly that human cloning should be prohibited could constitute evidence (maybe even strong evidence) of customary international law. So here is an example of conservatives trying to harness the international law and institutions for their particular policy goals.

The conservative NGOs’ activism sparked an interesting exchange at the Corner between those who takes the traditional, “we should not legitimize the U.N.” view, and those who take the “why not get the U.N. to do something right for a change” view And this reveals an important question for conservatives:

Should conservatives oppose all expansion of international law and institutions on principle (say because they threaten U.S. sovereignty) or should they simply oppose those particular international laws and institutions that they believe represent bad public or moral policy?

In other words, should conservatives adopt the flip side of the kneejerk “internationalism for internationalism’s” sake view that I criticized here? In my view, kneejerk “sovereignty for sovereignty’s sake” is no more persuasive than kneejerk internationalism. Conservatives might have some predispositions against certain international institutions, sort of in the way they might have suspicion of the federal government vs. the states. But even conservatives need to take international law and international institutions seriously and to consider endorsing particular international mechanisms on a case by case basis. This might mean yes to the WTO, but no to Kyoto. But it cannot mean “no” for no other reason than it involves joining an international institution or complying with international law.

The conservative movement’s recent mobilization against ratification of the Law of the Sea Treaty is beginning to show signs of this kneejerk sovereigntism. While I do think there are plausible policy arguments against the Law of the Sea, I do not believe “losing sovereignty” is one of them. This type of argument is Pat Buchananesque, and I would be disappointed if conservative publications like NR head down this same path.

Bolivia Indicts Ex-President for Genocide

by Julian Ku

Bolivia has indicted its ex-President Sanchez de Lozada for genocide, apparently due to his responsbility for the deaths of some 60 Bolivians protesting plans to develop and export natural gas. Lozoda is apparently living in the U.S. but there seems no basis for the U.S. to reject extradition under this 1996 extradition treaty with Bolivia. If these charges are for real, perhaps Illinois Wesleyan University will retract the honorary degree they conferred on Sanchez de Lozada?

US Troops in Iraq: Likely out of Reach of the ICC

by Peggy McGuinness

Julian asks the intriguing question, if the interim Iraqi government has joined the ICC, will that expose US troops to potential investigation and/or prosecution for past and future conduct? The short answer is probably not. There are several reasons. First, under the ICC statute, if Iraq is a state party (and it’s not clear from the brief statement reported in the press last week whether that is the case) the Court only has jurisdiction over conduct in Iraqi territory beginning on the date it becomes a party. The only exception would be if Iraq were to sign a “special declaration” agreeing to the jurisdiction of the Court beginning on July 1, 2002, the date the ICC came into force.

Second, the US may be de facto exempt as the result of a SOFA (Status of Forces Agreement) between it and the Iraqi government. At the time of the hand-over of sovereignty in June 2004, there was some discussion about the terms of such a SOFA, though I haven’t seen discussion that it was actually concluded. If there is a SOFA, under Art. 98(2) of the ICC statute, the Court would not be permitted to proceed with a request for surrendering US troops to the Court, as such a request would require Iraq to violate the terms of an international agreement. (This is why Julian referred to it as an “Art. 98 agreement”.)

Third, the US may also be protected from prosecution by the terms of the multinational force, which is currently operating in Iraq under Chapter VII authority of the Security Council. Art. 16 of the ICC statute prohibits the Court from proceeding in any matter where the Security Council has requested it (for up to 12 months) not to proceed. The Security Council has in the past adopted two blanket resolutions (Res. 1422 (2002) and Res. 1487 (2003)) calling on the ICC not to exercise jurisdiction in any UN operation under Chapter VII. The US withdrew its attempt to extend these resolutions last summer after it become clear other permanent members threatened a veto. However, the US might still be able to argue that the terms of the MNF deployment described in Res. 1546 and the letters from the US and Iraqi representatives accompanying that resolution (including the statement in the US letter that the MNF operate in a framework “in which the contributing states have responsibility for exercising jurisdiction over their personnel”) meet the requirement of Art. 16 and preclude ICC jurisdiction.

Finally, Art. 17 of the ICC statute requires “complementarity.” That means if a local or national investigation or prosecution of the conduct at issue is taking place, the Court is prohibited from exercising its jurisdiction. The only exception is where the state is “unwilling of unable” to exercise the jurisdiction. The US military investigations into and subsequent prosecutions of abuses at Abu Ghraib under the Uniform Code of Military Justice, for example, would likely trigger Art. 17 and halt effective jurisdiction of the ICC.

U.S. Concludes CAFTA Environmental Side Agreements

by Julian Ku

The U.S. announced Friday that it has concluded the Environmental Cooperation Agreement supplementing the environmental provisions of the Dominican Republic-Central American Free Trade Agreement (DR-CAFTA). Unlike other environmental side agreements, this agreement establishes a permanent Environmental Cooperation Commission composed of permanent representatives from the environmental agencies of each country. Moreover, in a nod toward criticisms of lack of transparency, the Commission will hold public hearings of its meetings and seek input from private businesses and organizations.

Is this all window-dressing? Maybe. But it does represent two important trends for these kinds of trade agreements: more and more public disclosure of internal decisionmaking and increased reliance on agency-to-agency administrative cooperation.

UN Refugee Chief Resignation: Accountability at Work?

by Peggy McGuinness

UN High Commissioner for Refugees Ruud Lubbers resigned his post over the weekend, after the London Independent (sub. req’d) last week released details of an internal UN investigation into allegations made by a senior female UN official that Lubbers had sexually harassed her. Lubbers continues to deny the allegations, but Kofi Annan appears to have accepted Lubbers’ resignation after conferring with legal counsel. Although Annan himself had rejected the findings of the internal report, completed in July 2004, it apparently includes detailed statements by other women who had claimed to be harassed and subject to intimidation and fear of retaliation by Lubbers. Just as troubling, the report also noted that Lubbers attempted to abuse his authority to influence the outcome of the investigation.

Given the details of the report, Lubbers’ resignation appears to be the right thing for the UN. But it shouldn’t end here. The UN should share the results of the investigation and take whatever disciplinary or legal steps are available to send a message that the international organization charged with upholding human dignity takes seriously the dignity of women in the workplace.

Spain Approves EU Constitution

by Peggy McGuinness

77% of Spanish voters approved the EU Constitution in a referendum yesterday, in the first of at several national referenda to be held across the continent to approve the new charter. The Constitution must be ratified by all 25 EU member states by November 2006 in order to go into effect. TransAtlantic Assembly has this post linking to domestic debates around Europe on the constitutional process.

Iraq Joins ICC: World Yawns

by Julian Ku

Am I the only person startled by Iraq’s apparent decision to adhere to the International Criminal Court? Apparently, I am because none of the U.S. papers or even the BBC are reporting this story. The only reports I have been able to find confirming this announcement by the outgoing provisional government in Iraq have been in French newspapers. My French is not great, but this excerpt from Le Monde appears to confirm my earlier post:

La République d’Irak a adhéré au statut de Rome créant la Cour pénale internationale signé le 17 juillet 1998″, indique le texte du décret-loi, soulignant que les dispositions de ce statut “représentent des valeurs communes à l’ensemble de l’humanité.

Maybe this was always going to happen. And maybe Iraq has already concluded an “Article 98” agreement that exempts U.S. or coalition forces from the jurisdiction of the ICC. But if not, this could be very important because U.S. soldiers who participated in the Abu Ghraib abuses or who are accused in the future of committing war crimes will be subject to the jurisdiction of the ICC. Even if U.S. soldiers do have an exemption, Iraq’s decision to adhere to the ICC is a blow to U.S. given the strength of U.S. opposition to the ICC.

Does the Bush Administration Read Anne Marie Slaughter?

by Julian Ku

As I explained here, Dean Anne Marie Slaughter of Princeton is widely known for her study of transnational networks of governmental agencies and institutions that complement and may even substitute for traditional, formal forms of international cooperation in the form of treaties and international organizations. Whether they know it or not, the Bush Administration often follows this approach in a variety of areas, in addition to the Methane to Markets plan I discussed earlier this week. A brief survey of U.S. government press releases from yesterday reveals:

  • The FAA Director speaking at an international conference about improving the existing system of international airline safety regulation, all conducted on an agency-to-agency level with few formal international agreements.
  • The U.S. State Department inviting nations and NGOs to study ways to eliminate landmines.
  • The U.S. Commerce Secretary pledging U.S. cooperation in an international conference designed to set up a global observation system (to improve, among other things, observation of hurricanes, earthquakes, and of course, tsunamis).
  • The U.S. Energy Secretary’s Global Threat Reduction Initiative , that works with various countries to secure nuclear waste.
  • The Proliferation Security Initiative, a partnership with 60 plus countries that allows U.S. navy ships to interdict shipments of nuclear materials on the high seas.

All of these initiatives may be window dressing, and all of these “partnerships” might be more effective as multilateral treaties involving the creation of an international institution or working with existing institutions. Or maybe not. These initiatives should also remind international lawyers that effective international cooperation can take many forms and that the “legal” one is not always the best.

Japan vs. China: Japan Agrees to Joint Taiwan Security Policy

by Julian Ku

According to reports, Japan has agreed to modify its U.S. security alliance to include Taiwan as a “common strategic objective.” This may sound innocuous enough, but it means that for the first time, Japan will publicly commit itself to support the U.S. in the event of a Chinese military invasion of Taiwan. What kind of support it will provide is admittedly murky, but as one influential Japanese leader puts it: “It would be wrong for us to send a signal to China that the United States and Japan will watch and tolerate China’s military invasion of Taiwan.”

The Taiwanese are thrilled to get even this tepid endorsement of support. The Chinese, already fuming over Japanese assertion of territorial claims over the Senkaku Islands, are going to go ballistic (maybe literally). For an example of a somewhat tempered reaction to earlier Japanese actions, see here.

Those not familiar with recent East Asian history might find this whole thing unsurprising and perhaps uninteresting. But consider. What is the only thing worse for global peace and security than rogue nations acquiring weapons of mass destruction?

Answer: A full-scale military battle between China and the United States over Taiwan

This scary possibility might make me pine for an Asian multilateral organization to mediate this coming conflict, as Fukuyama has suggested. But Asia is not Europe and Japan and China are nothing like Germany and France. So the world will have to rely less on international lawyers and institutions (whose value can be debated anyway) and hope that their diplomats will be able save the day.

Americans’ Support for UN is Falling

by Julian Ku

A new poll shows that the number of Americans who view the U.N. favorably has fallen from 44% to 37% since November, suggesting that the UN Oil-for-Food Scandal is having a negative effect (via Instapundit). Of course, only 54% of those polled were actually following the story but of those, 62% believe Kofi Annan should resign. These poll results are not exactly surprising, but they do reflect a much lower level of support for the U.N. than was suggested by this Chicago Council on Foreign Relations survey released last year. This survey suggested fairly strong support for the U.N. and international institutions generally coming up with a composite “temperature” support for the U.N. at 63%.

It is hard to gauge the American public’s opinion for anything, much less international institutions which seem rather obscure to many people. One possibility to explain these disparate poll results is that Americans support the idea of the U.N., but are increasingly unhappy with the actual U.N. and its current leadership.

Or it may just be another reflection of the ambivilance Americans have always had of their proper relationship with international institutions. I’ve been reading Margaret MacMillan’s Paris 1919: Six Months that Changed the World, an account of the 1919 Paris Peace Conference, and it is striking to read about Woodrow Wilson’s insistence on establishing a League of Nations, even before coming to terms with Germany, as well as his micro-management of the details of the League’s establishment. Having then pushed everyone else into accepting the League, he went home and found the Senate and the nation unwilling and uninterested.

Clear Skies and Kyoto: A Response

by Peggy McGuinness

Not surprisingly, some environmentalists are unhappy with Gregg Easterbrook’s op-ed piece in yesterday’s NY Times about the Bush administration’s so-called “Clear Skies” initiative. (Julian posted earlier on Easterbrook’s discussion of Methane-to-Markets in the TNR here, which Easterbrook views as complementary to Kyoto in terms of reducing greenhouse gases.) While we try to remain focused on international law here at Opinio Juris, the Clear Skies Initiative v. Clean Air Act debate has obvious implications on the value of the sort of “cap and trade” international environmental regulation which Kyoto represents, and on the value of voluntary v. mandatory rules more generally. The environmental community appears divided on whether a market-sensitive “cap and trade” system (Kyoto, Clear Skies) is preferable to the top-down approach of the 1970s era US regulations. With Kyoto, the central objection of the US government is not the “trades,” but the “caps,” which appear to impose a greater burden on the US as a developed nation, than on up-and-comers like India and China. With Clear Skies, the environmentalists are concerned with the caps, which they see as less stringent than the Clean Air Act, but also with the trades, which they see as compounding the problem of disparate impact of pollution on certain communities (a point about which environmentalists and states-rights advocates might find a point of agreement).

This comment submitted by Jessica Lawrence, a well-informed law student at the Univ. of Georgia (yes, we welcome submissions from students!), responds directly to the Easterbrook op-ed and summarizes the concerns of many environmentalists:

First, while the Clear Skies Act would establish cap-and-trade systems to limit the levels of Nitrous Oxides, Sulfur Dioxide, and Mercury, the Clear Skies Act’s average 70% reduction in emissions over the next 14 years is less than the amount already required under the Clean Air Act. (ed.: Compare the data on Clean Air Act here with the data on Clear Skies here.)

Second, Clear Skies is not an alternative to the Kyoto Protocol. Clear Skies contains no provisions for the regulation of CO2, the chief pollutant responsible for global climate change. This is despite Bush’s 2000 campaign promise that he would offer legislation to address those emissions. The only programs in place so far with respect to Carbon emissions are voluntary programs and research grants for the study of hydrogen and renewable power. While some of these programs are quite good as far as they go (the Energy Star program, for example, has received widespread approval from environmental agencies), they are by no means adequate. Consequently, contrary to what Easterbrook is trying to suggest, Clear Skies is not an effective alternative to Kyoto or to any other program that attempts to address carbon emissions (such as the Lieberman-McCain bill currently on the floor in congress).

Third, eliminating New Source Review (NSR) in favor of Clear Skies will likely allow higher emission levels at individual utility plants, according to the National Research Council (whom Easterbrook incorrectly cites in his favor, given that the NRC’s interim report was critical of the Clear Skies proposal). NSR provisions date from the 1977 amendments to the Clean Air Act. At that time, emissions limits overall were upgraded but old factories were exempt from compliance with the new rules. As a safeguard, the law included the NSR provision to require companies to employ the best available technology to update their older plants when they made changes that might increase emissions. This is important because it means that the standard updates are technology updates. Industry hates this rule. Bush has been consistently undermining these rules since he was first elected (he has, in fact, made overhauling it one of his top environmental priorities, and Clear Skies will completely hamstring the NSR –gutting the program as it relates to old coal-burning power plants. The administration bases its opposition to NSR primarily on the fact that the program has negatively affected energy projects, but Christine Todd Whitman (whom, Easterbrook also incorrectly cites in his favor) revealed in her new book It’s My Party, Too that “at one meeting, after hearing one person after another lay blame for our energy crisis squarely at EPA’s door, I asked them to prepare a list of energy projects that were being delayed because of environmental laws and regulations. Nobody ever did.”

Fourth, cap-and-trade systems are good in theory because they achieve the same pollution-reduction result as more command-and-control style legislation while allowing industry some flexibility in determining how to make the cuts. Many environmentalists are in favor of them, at least in the abstract. Some, however, remain concerned there are equity concerns, for example, regarding the disparities in emissions reductions that these systems create. All communities are not benefited equally when companies can choose where they want to reduce and where they don’t, and these systems may result in environmental injustice for those in areas with older plants that are more expensive to clean up. Also, because states are no longer able to form their own implementation plans, they cannot target specific areas are more in need of protection.

Fifth, Easterbrook’s argument that these Clear Skies cap-and-trade proposals are the first step on the way to imposing a cap-and-trade system for CO2 emissions is somewhat perplexing. He claims that the successful implementation of the Clear Skies program will somehow “prove that the power industry as a whole can be subjected to a sweeping cap-and-trade rule without suffering economic harm or high costs –even though, as he himself points out, cap-and-trade has already worked in the same industry when the EPA imposed such a system on coal-fired power plants. Does he really think that changing the implementation strategy of the NOx and SO2 rules — which are not additional to anything the power companies would not already have been subject to – will somehow convince industry and government to impose additional restrictions on a substance that is not yet regulated and whose impact (climate change) is questioned by the administration?

Sixth, Easterbrook’s use of 1970 statistics as comparative models is also quite misleading. 1970 was the year the Clean Air Act was passed , so when he says that SO2 and NOx will be nearly eliminated as compared with 1970 levels, he is really comparing the proposals for future achievements with a time before a national comprehensive reductions program existed. The vast majority of these reductions (which he seems to imply will be brought about solely through the Clear Skies program) were actually achieved during the past three decades of Clean Air Act compliance. The reductions from current levels are much lower – and, as previously mentioned, the future reductions from the Clean Air Act would be greater than those proposed by Clear Skies.

Finally, Easterbrook also claims that a benefit of Clear Skies is that it would eliminate the “complex set of rules” and “case-by-case drawing up of plans” mandated by the Clean Air Act. This is a reference to the fact that under the 1990 revisions to the Clean Air Act, the states were given broad enforcement and regulatory powers. This was done so implementation programs could be designed that would accommodate the different problems of each individual state. States were required to develop SIPs explaining how they would meet the minimum national Clean Air standards. States had to involve the public in creating these SIPs and had the power to set regulations that can be stricter than the national standards. So while it is true that the regulations are very complex, they were made that way in order to create the maximum amount of flexibility for local governments in determining how to implement these rules. Clear Skies will not allow state governments this control – under the cap-and-trade system, pollutant levels are looked at as national aggregates, and businesses will decide where the reductions will take place based on reduction costs for individual plants. In other words, it takes the control out of the hands of local governments and hands it over to industry.

Hotel Rwanda: The Opinio Juris Review

by Peggy McGuinness

I saw Hotel Rwanda the other day with students from my Human Rights class. (Yes, it finally has been released in the Midwest.) If you haven’t yet seen it, go. And take your students. Talk about it in class. It is rare when a Hollywood film addresses issues central to international law and human rights; rarer still when it goes to wide release and gets nominated for Academy Awards. My students have only vague memories of the events of the early 1990s, and the film medium is perfectly suited to bringing the tragedy of the Rwandan genocide to life. I will leave the acting and directing reviews to the professionals, but it is worth saying that you barely notice the acting (itself a good sign) in a film which immediately draws you in by the horrors about to unfold.

One thing left me intitially puzzled: the confusing and rather skimpy background on the Arusha peace process, the origins of the RPF and the assassination of President Habyarimana. I left the theater wondering if that would leave most viewers without the appropriate political context. It wasn’t until the next day — this is the kind of film that stays with you for a while — that I realized the historical fuzziness was likely intentional. Whatever the facts are about who fought whom or who had the most to gain politically or economically from the Arusha Accords, nothing can “explain” genocide. No background is really needed.

What is well developed — and helped with a haunting score that sounds the drumbeats of death — is the role of Radio Mille Collines, which used the airwaves as an efficient medium to communicate the commands to kill. The extent to which the radio enabled the Interhamwe to carry out the genocide in a country that did not have the kind of machinery of death of the Nazis was not widely recognized until well after the genocide. The role of the broadcasters as the “command and control” of the genocidaires was revealed in the trials and convictions of three RMC “journalists” before the International Criminal Tribunal for Rwanda.

I have not read Paul Rusesabagina’s autobiographical book on which the film is based, but understand from other sources that certain characters are composites (Nick Nolte as a Canadian Colonel in charge of the understaffed and doomed UN mission is based, loosely, on UNAMIR commander Romeo Dallaire). The extent to which the hotel, owned by the Belgian company Sabena, is spared from the killing because of its connection to powerful elites in the West is a bittersweet commentary on the utter failure of the West to intervene in any meaningful way to prevent or stop the slaughter outside the hotel gates. Rusesabagina is the main character, a decent, hardworking hotel manager who has bought into the product the Europeans and Americans have sold him: seamless customer service, a fine scotch, and a good Cuban cigar are the trappings civilization. He seems to suppress the misdeeds of the Belgian and German colonials (whose creation and exploitation of ethnic differences had left a scarred legacy on the region) And he doesn’t realize, until it is too late, that geopolitics matter, and that western indifference to Africa would leave him and his countrymen to fend for themselves. In a poignant scene, Joachin Phoenix’s character, a western tv cameraman who gets rare footage of some of the killing, cynically and, it turned out, accurately, predicts to Rusesabagina that outside help would not be coming: “If people see this footage, they’ll say, ‘Oh my God, that’s terrible,’ and they’ll go on eating their dinners.”

ICC Watch: Iraq Accepts Jurisdiction

by Julian Ku

According to this report from Agence France Press, Iraq’s interim government has accepted the jurisdiction of the International Criminal Court. There is no confirmation of this news from the ICC itself. This could be big news because depending on the nature of Iraq’s acceptance, U.S. soldiers operating in Iraq could become subject to the ICC’s jurisdiction (assuming that Iraq and the U.S. have not signed an agreement preventing such jurisdiction). Something to keep an eye on…

How to Sue the French Army

by Julian Ku

A group of Rwandans has filed a suit in France accusing French soldiers of complicity with the 1994 genocide of Tutsis. The French government probably bears the greatest responsibility (other than the Hutus themselves, obviously) for what happened in Rwanda given France’s longtime support for the Hutu government there and its relatively large military presence in the region. If any single foreign country could have intervened in time to make a difference in 1994, it was France. (The current Rwanda government would go farther, essentially accusing the French of enabling the genocide to occur and of allowing war criminals to escape.)

According to this report, the lawsuit was filed in a special court with jurisdiction over French soldiers. There are some ugly allegations of French soldiers tossing Tutsis out of French helicopters.

If the Rwandans don’t make any progress in this court, they probably should petition the International Criminal Tribunal for Rwanda. Additionally, they should have no serious problem coming to the U.S. to file a civil lawsuit under the Alien Tort Statute, which allows lawsuits by aliens against other aliens for violations of international law. I don’t think France has ever been sued in an Alien Tort case, but I doubt the Rwandan plaintiffs will have a difficult time finding a sympathetic jury.

Darfur Deadlock: The Climbdown Begins

by Julian Ku

The EU’s foreign policy chief Javier Solana may be conceding defeat on Europe’s effort to win a Security Council referral for Darfur. Apparently, winning U.S. support for a referral is a lost cause, although there is still some hope that the U.S. will abstain from vetoing the referral. Still, the UK government has suggested its position on an ICC referral is negotiable, a possible signal that it is ready to back off and this has already drawn criticism from human rights groups. Indeed, UN Human Rights Commissioner Louise Arbour spent yesterday testifying to the Security Council about the need for quick action and an ICC referral.

I agree it would be extraordinary for the U.S. to veto action over this question, just as it would be extraordinary for the ICC supporters to veto a resolution sending peacekeepers just because there is no ICC referral. I just don’t think the ICC is as important here as its supporters and critics make it out to be. It would be a ridiculous tragedy if the ICC debate undercut concrete action to stop the killing in Darfur.

The Ethics of International Lawyering and Judging

by Chris Borgen

Peggy’s post on ethical lawyering and the torture memos brings up some excellent points concerning the ethical responsibilities of all lawyers and government lawyers in particular. As she and David Luban point out, lawyers do not act in an ethical vacuum, but have certain responsibilities (most clearly exemplified in the ABA’s Model Rules) concerning how they act and the advice that they give. These rules are the province of domestic bar associations and domestic laws and, although we are applying them here in a case with international implications, they are rules concerning how the U.S. believes U.S. lawyers should act when doing their jobs. (For more on the ethical implications of the “torture memos”, I suggest a work-in-progress by my colleague Rob Vischer, a legal ethicist.)

A broader question though, is what, if any ethical guidelines should frame the work of lawyers who practice before international tribunals and the judges serving on these tribunals? Should each lawyer be governed by their home state’s ethical rules or should there be a common set of rules that would apply to lawyers litigating before such tribunals? Perhaps more importantly, what should be the ethical rules for international judges, especially those on the ICJ, the ICC, and other permanent international courts.

These questions have been garnering increasing attention by lawyers in recent years. In 1996 Professor Detlev Vagts of Harvard wrote “The International Legal Profession: A Need for More Governance?” (The American Journal of International Law, Vol. 90, No. 2. (Apr., 1996), pp. 250-261 available on JSTOR, registration required), probably the best starting point for wanyone interested in considering these issues. He notes that, whereas the ABA’s Model Rules were designed to end conflicts between the codes of conduct of the different different states of the U.S., the ABA stated that “[t]he choice of law provision is not intended to apply to transnational practice. Choice of law in this context should be the subject of agreements between jurisdictions or of appropriate international law.” The catch is determining if there even is any appropriate internaternational law. Vagts finds a variety of clauses or rules in domestic laws, rules of arbitral for a (such as the International Chamber of Commerce, the Statute of the International Criminal Court, and other sources. The result, though, is full of “problems and uncertainties”: a lack of uniformity, a lack of clarity, a lack of comprehensiveness, and lack of consistency makes this welter of rules amount to less than the sum of its parts.

Many of these rules are a combination of particular rules provided by an organization and informal professional norms. In international arbitral practice, for example, formal requirements based on the specific arbitral rules being used are supplemented by a relatively rich set of informal codes of conduct. Yves Dezalay and Bryant Garth have written a fascinating study of the how international arbitral practice fashions its“rules of the road” called Dealing in Virtue.

But this is not the same as the formal rules that we can turn to in domestic fora. Moreover, this begs the question with reagrds to the permanent international courts and to international judging.

While the ICJ has certain standards written out in its Statute, there is a need for serious consideration of a more comprehensive set of norms that would apply to international judges more generally. The Project on International Courts and Tribunals has a program devoted to assessing the questions of ethics, accountability, and independence of international judges (see also the Report of the First Meeting of the International Law Association’s Study Group on International Courts and Tribunals).

As would be no surprise to readers of this blog, I think that international tribunals can play a useful role in international relations. For a tribunal to be effective, though, it needs (among other things) to be perceived as fair. Comprehensive rules of judicial ethics that are enforced by member states would be a step in the right direction.

Krasner Appointed Director of Policy Planning for the State Department

by Julian Ku

Professor Stephen Krasner, of Stanford’s Poli-Sci Dept, has been appointed the new Director of Policy Planning for the State Department. Prof. Krasner is a well-respected scholar of international relations (his most recent book is Sovereignty: Organized Hypocrisy and an excerpt is published here) who will bring even more academic credibility to the post than usual, which has traditionally been held by the egghead-types like George Kennan and Paul Wolfowitz. The purpose of the job appears to be to develop “big-think” approaches to foreign policy like “containment” and “regime change.” Of course, whether anyone listens to the Director of Policy Planning is an open question and depends on the particular administration.

Krasner is not associated with any particular ideological group. He is certainly not, in any sense, a card-carrying neocon (whatever that might mean). His primary qualification for the job, in addition to his obvious and impeccable academic ones, appears to be that he is a former colleague and friend of Secretary of State Rice. Within the world of IR, he is best classified as a “realist” but one who has engaged the other IR schools in a way that has earned their respect. What might a realist perspective say about international institutions and international law? In an interview, Krasner reveals his thoughts about the ICC and international justice (emphasis added):

One problem with the ICC is that you have no democratic accountability. But the deepest problem with the ICC and with other efforts, like universal jurisdiction, is that international politics is not something that you can deal with adequately using judicial reasoning. Judicial reasoning has to be based essentially on absolute rules, or at least more or less on absolute rules. It has to be deontological or Kantian. You have to have a set of rules and you have to honor the rules. You don’t want the judge or a jury saying, “If I convict this guy, his family members or his gang members are going to be mad, so they’re going to go out and shoot ten other people.” No system of justice domestically that works well can work in that way. But in the international level, that kind of thinking is utterly irresponsible, because the critical issue at the international level is how you can maintain order, ideally have justice, and save lives. That requires utilitarian thinking. It requires thinking about the greatest good for the greatest number. I do not think there is any escape from this.

The Kyoto Experiment Begins

by Julian Ku

Today marks the entry into force of the Kyoto Protocol to the United Nations Framework Convention on Climate Change, one of the most ambitious international environmental treaties in world history. Whatever I might think of the merits of this project, the creation of a worldwide system of greenhouse gas emission regulation certainly is worthy of my interest as a scholar of international law.

For a list of events worldwide commemorating the day, see here. Japan kicked things off at 5:30 a.m. EDT in, of course, Kyoto. The conventional wisdom appears to be that U.S. companies will reduce greenhouse gas emissions anyway. Interestingly, as this neat graph shows, many countries that have signed Kyoto (like Spain and Portugal) have actually been heading in the wrong direction, increasing their GHG emissions since 1990 more than even the non-Kyoto U.S. has been doing.

Luban on the Ethical Implications of the Torture Memos

by Peggy McGuinness

In a brief essay on Slate, David Luban argues that the OLC lawyers who drafted the infamous “torture memos” (discussed in earlier posts, here, here and here) have something in common with Lynne Stewart, who was convicted last week of material support for her client, Sheik Omar Abdel Rahman, the Egyptian cleric serving a life sentence for his role in the 1993 World Trade Center attack. Luban argues they all crossed an important ethical line. In Stewart’s case, the jury concluded that her advocacy for her clients ran afoul of ABA Model Rule 1.2(d) — assisting a client in conduct the lawyer knows is “criminal or fraudulent” — as well as federal law prohibiting support for terrorism. In the case of the OLC lawyers, Luban argues that they ran afoul of the professional rules governing the role of legal advisers.

I have wondered about the scope of ethical obligations of legal advisers in government service since I first read the starkly conflicting memos to Alberto Gonzales written by the OLC lawyers and those written separately by William Taft and Colin Powell at State on the applicability of the Geneva Conventions to the Taliban and al Qaida detainees. The absence of alternative historical views and lack of policy context in the OLC memo struck me as rather glaring. (The strong disagreement on the law, history and policy interpretation between Taft and the State Dept lawyers on the one hand, and Yoo and the OLC on the other, is evident in this exchange of memos from early 2002.)

Luban, a leading scholar in professional responsibility provides an answer: ABA Model Rule 2.1, which provides that legal advisers “shall exercise independent professional judgment and render candid advice.” Luban continues:

Legal advisers must play it straight, even where the “[l]egal advice [may] involve[] unpleasant facts and alternatives that a client may be disinclined to confront.” Independence means saying what the law is — as mainstream lawyers and judges understand it –regardless of what the client wishes it to be. Candor requires lawyers with eccentric theories to warn their clients whenever their legal advice veers away from the mainstream. The torture lawyers betrayed both these principles with the advice they gave the White House.

In the “Bybee Memo,” for example, candid advice demands that when you discuss the “necessity defense” to the crime of torture, you mention that the defense has always been a loser in federal court. In the case of a later OLC memo by now-Harvard law professor Jack Goldsmith on the Geneva Conventions, candor means forthrightly reminding your client that Geneva forbids coercive interrogations, not burying this unwelcome point in a vaguely worded footnote.

Luban goes on to note, however, that no one has ever been disciplined for this kind ethical line-crossing when it comes to “candid advice-giving.” And, at least as regards the Geneva Conventions question, the client (President Bush, through his counsel, Alberto Gonzales) had access to the alternative view put forth by State. It nonetheless is an important discussion of slippery slope of ends-based advocacy, one which bears discussion with our students.

No doubt, there are strong views on where the ethical line is appropriately drawn. To promote open discussion of this issue, ASIL has placed it on the agenda for the Annual Meeting in Washington DC, with a panel entitled “Legal Ethics and the War on Terror: the Role of the Government Lawyer” scheduled for 2:15 pm on April 1. (The full Annual Meeting agenda is here.)

ICJ Watch: New Member of the Court Named

by Julian Ku

The General Assembly and Security Council approved the selection of Ronny Abraham to become a member of the International Court of Justice today. M. Abraham replaces Justice and former President of the Court Gilbert Guillaume, who resigned last Friday, and will serve out the rest of Guilliame’s term, which expires in 2009. M. Abraham, a widely-respected French international lawyer, takes over the “French” seat on the ICJ which doesn’t reserve seats for particular countries but, due to the requirement of Security Council approval, always seems to have judge from the permanent member countries of the Security Council.

Blogger Problems

by Julian Ku

As you can see, we have been having some technical difficulties. We hope to be back in business as soon as possible. Thanks for your patience.

Bob Jacobson on "Rule Sets" and Law

by Chris Borgen

Bob Jacobson, a partner in New Rule Sets Project, LLC (the consulting firm started by Tom Barnett) and the Managing Editor of “Rule Set Reset,” a journal that expands on the ideas of The Pentagon’s New Map, has written reacting to my post comparing and contrasting the idea of “rule sets” to the lawyer’s conception of international law. Bob writes that the post

…reminded me of an assertion by a former grad school chum, an aspiring writer, now a managing partner at one of the nation’s largest law firms: “Lawyers see all phenomena through the lens of the law, so they can only detect and deal with issues visible in the legal spectrum.” I’m not asserting that, but he did. In other words, to paraphrase my friend, we need to see law in the context of everything else…

In the competition between rule sets and laws, I believe that laws reign supreme because they got there first, not necessarily because they’re the best human method for dealing with natural and human phenomena. One of my discoveries as a policy analyst in the California legislature was how many important issues the law could not or chose not to deal with, or dealt with only partially (and usually inappropriately) — this, despite the publication of some 7,000 new bills each two-year session. Effective politics and the law are only loosely joined.

It’s no surprise to me that the broad sweep of Tom’s universe of rule sets is not always congruent with the law. It’s bigger than the law. The problem is that we haven’t invented alternative social tools equal to the task of dealing with phenomena in their totality, either individually or relationally. Instead, we’re left with the old standards-war, diplomacy, a volatile market/globalization, and the law-to solve closing the Gap…

The law is a collection of rule sets-but the law per se, as a category, is also a rule set. It works best under certain circumstances, less well under others. We may be reaching the limits of law as we know it.

I agree with Bob that the international law consists of a sub-set within the broadest conception of all possible rule sets. What I think is especially interesting though, is how non-lawyers approach the ideas of rules in general and how this may affect perceptions of international law. My main point is that international law is a bit different than other “non-law” rules sets because it includes the idea of individual right or entitlement and thus is not as easy to consider in a primarily instrumentalist manner.

Bush Plan Could Reduce Global Warming As Much as Kyoto

by Julian Ku

Gregg Easterbrook, no patsy for the Bush Administration, has a terrific column in this week’s New Republic Online ($) pointing out that amid all the hoopla tomorrow over the entry into force of the Kyoto Protocol, the Bush EPA has quietly stitched together an international plan to reduce potential global warming gases in roughly the same amounts as Kyoto.

According to Easterbrook, the Bush “Methane to Markets” plan aims to reduce global methane emissions by 50 million metric tons of “carbon equivalent”, which he says would result in about a 1% reduction in greenhouse gases (about the same as Kyoto). Even better, 16 leading industrialized countries, including China, have joined the initiative as well. Methane emissions are much more cheaply reduced and yet contribute much more to global warming (if it is happening) then regular CO2 emissions.

Easterbrook may be overstating the benefits of reducing methane, and he himself points out that if global warming is really happening, eventually CO2 gases like those targeted by Kyoto will have to be reduced. But reducing methane is still worth doing and could buy the world several decades while it figures out a cheaper and more effective way to solve the global warming problem. (He defends Kyoto on the same grounds).

From an international lawyer’s perspective, the Bush methane plan is also interesting because it takes the form of an informal, voluntary international agreement between EPA Chief Michael Leavitt and the environmental ministers of the other countries. As such, the agreement probably doesn’t have the status of a treaty under international law or even binding force under domestic law. But, as Dean Anne Marie Slaughter of Princeton has pointed out (in zillions of publications, here is just one example), such informal government networks constitute an important, and in some cases, primary form of international cooperation.

As Easterbrook notes, the utter and complete lack of coverage of this plan by the major media since it was announced last year is shocking, but not exactly surprising because it undercuts the easy story the media wants to tell: Bush Administration – Bad, European Union – Good. (To bloggers like Daniel Drezner, however, this is all very old news.)

I would simply add that the international lawyers often uncritically accept the same narrative about international relations. They then reflexively support of grand, fancy, global treaties like the Kyoto Protocol while overlooking the policy goals that are the whole point of the treaty in the first place (a point I was trying to make last week). If an informal voluntary agreement between administrative agencies can achieve just as much reduction in greenhouse gases as Kyoto at much lower cost, then it deserves our attention and (perhaps) our support as well.

U.S. Proposes UN Peacekeeping Force for Sudan

by Julian Ku

While the NYT and Samantha Power have been fretting about the U.S. opposition to an ICC referral for Sudan, the U.S. (apparently listening to the wise counsel of Peggy and/or Hillary Clinton) has moved ahead with a draft Security Council Resolution calling for a 10,000-man peacekeeping force for Sudan as well as various other measures. This will not solve everything and splits remain on whether to impose sanctions and how to punish various war crimes. But the U.S. decision to propose this resolution wisely avoids letting those issues prevent the UN from taking the crucial first step in doing something about the ongoing violence in Sudan.

Senate May Investigate CIA Detention, Interrogation and Rendition Practices

by Peggy McGuinness

Is the Senate finally entering the fray on the torture debate? It is being reported that the Senate intelligence committee may be moving toward opening an investigation of CIA detention and interrogation techniques, as well as the CIA practice of rendition, whereby detainees are sent to third countries. If a formal investigation happens (which will only come about if there is strong Republican support for it), it may provide additional facts and a boost for plaintiffs lawyers representing detainees in pending habeas and civil actions. But even an informal review from the committee will be a welcome change from the silence we have heard to date.

Hillary Clinton calls for a NATO force in Darfur: But is it Legal?

by Peggy McGuinness

With the NATO summit only 8 days away, in a speech in Germany yesterday, Senator Hillary Clinton called for a direct role for NATO to stop the killing in Darfur. (For the foreign policy wonks out there, it is interesting to note that she made public the fact that she got help on the speech from Richard Holbrooke, Sandy Berger and Jeffrey Smith, who each held senior foreign policy jobs under her husband’s administration, and Brent Scowcroft, who was national security advisor to Bush 41.) I am, of course, relieved that a prominent US politician has finally said what needs to be said about Darfur, particularly as she seems to agree with positions I have laid out previously here and here.

But that leaves us with Julian’s question to me last week: Is it lawful for a regional organization like NATO to use force without Security Council authority? The answer, I believe, is yes — with certain qualifications. The UN Charter specifically contemplated the existence and necessity of regional organizations and defense alliances in carrying out collective security. This was due, in part, to the initial unavailability of the military committee that envisioned member states contributing troops to a permanent US force. Article 53 of the Charter, therefore, states that regional organizations can undertake any enforcement actions of the UN and also engage in collective self-defense of that organizations members. This has traditionally been interpreted as requiring prior Security Council authorization for any mission that is not self defense. The question raised by Darfur is one of a purely humanitarian mission, outside NATO (or the EU), and which is not yet authorized by the Security Council. In short, it is the NATO intervention in Kosovo all over again.

In Kosovo there was no Security Council resolution prior to the intervention, but after the intervention the SC passed Resolution 1244 that arguably legitimized/legalized the operation. Indeed, the commission that was tasked with investigating the Kosovo operations concluded:

[T]he NATO military intervention was illegal but legitimate. It was illegal because it did not receive prior approval from the United Nations Security Council. However the Commission considers that the intervention was justified because all diplomatic avenues had been exhausted and because the intervention had the effect of liberating the majority population of Kosovo from a long period of oppression under Serbian rule.

Some international law scholars have subsequently argued that, in light of the Kosovo Commission’s conclusion, it is consistent with international law (through the emergence of a new”custom”) to intervene on behalf of protecting human rights, so long as certain other elements are present (exhaustion of other avenues, legitimation through broader “internationalization” of the intervention after it occurs, etc.). For a helpful discussion, see Christine Gray’s treatise, International Law and the Use of Force, and Antonio Cassese’s 1999 comment in the EJIL.

Julian’s other question was whether the conclusion by the UN that “crimes against humanity,” but not genocide, have been committed in Darfur should have any effect on the decision to intervene on humanitarian grounds. Applying the humanitarian intervention principles derived from the Kosovo example, the answer is no. Genocide is a unique and important construct in international law, but it cannot be said to offer the sole justification for humanitarian intervention.

Humanitarian intervention is a rich subject that, in addition to having profound impact on international law, touches on theories of moral philosophy and international relations, and I feel somewhat constrained by the format here. (For those interested in delving further, I recommend Nick Wheeler’s book, Saving Strangers.) We will no doubt be returning to the subject often in the months ahead.

Japan, China, and the Law of the Sea

by Julian Ku

Japan announced today that it would allow fishing expeditions to Okinotorishima, an obscure island 1000 miles southeast of Japan. For Law of the Sea aficionados, this sets up a pending battle over the size of Japan’s “exclusive economic zone” because if Okinotorishima is merely some “rocks” (as China says), Japan’s EEZ is substantially smaller than it currently claims. Countries have certain exclusive rights to exploitation of, among other things, undersea minerals in their EEZ’s, so this is no small dispute.

Additionally, Japan’s action comes on the heels of its decision to take over a lighthouse on the Senkaku, or Diaoyu islands, a separate Japan-controlled island that is also claimed by China and Taiwan. China’s angry response is described here and protests against Japan have already occurred in Hong Kong. Although it all sounds rather petty, this is very highly explosive stuff in China these days. For China’s view on these disputes, see here. For a more nuanced and balanced view, see here.

Both countries are parties to the Law of the Sea Convention and although neither has accepted compulsory jurisdiction, either could at any time request a special arbitral panel be formed under Article 287. But don’t hold your breath.

UN Peacekeepers and the ICC

by Julian Ku

As further reports of UN peacekeeper atrocities continue to flow out of the D.R. Congo, an interesting legal puzzle arises: Can those peacekeepers be prosecuted for war crimes by the ICC? The answer is probably yes, no thanks to the U.S., which has been introducing annual resolutions in the Security Council granting immunity to UN peacekeepers since 2002, but which withdrew its proposal last summer in face of opposition. Given that the UN itself has no power to discipline peacekeepers and they often have immunity from prosecution in the countries that where they are deployed, it would be odd for the ICC to have no role here. Yet putting them before the ICC is likely to discourage much needed contributions by countries like the U.S. Maybe a case-by-case exemption is needed here?

The ICC’s First Test: Uganda

by Julian Ku

As the ICC gears up to issue its first arrest warrants against rebel leaders in Uganda, church leaders there are warning that the warrants could upset already fraying peace negotiations. I don’t know anything about the Ugandan situation except that the Ugandan government was the one that referred the case to the ICC, has been trying to withdraw the referral and may be using the ICC as tool to pressure rebel leaders (as the article suggests). It sounds like the Ugandan rebels deserve whatever punishment the ICC can give out, and more, but this whole situation could easily backfire…

NAFTA Watch: Chp. 19 Panel Remands U.S. Antidumping Decision

by Julian Ku

The NAFTA Secretariat posted this decision on Friday remanding to the U.S. Department of Commerce a decision by Commerce to impose anti-dumping penalties on Oil Country Tubular Goods from Mexico. This decision is authorized by Chapter 19 of NAFTA, which authorizes the formation of Binational Arbitration Panels to review antidumping determinations made by domestic authorities (in this case, the U.S. Dept of Commerce).

Article 1904.1 of NAFTA requires each member state “to replace judicial review of final antidumping and countervailing duty determinations with binational panel review.” So, in a way, the Panel replaces judicial review of the U.S. government’s administrative decisions with an international tribunal. Similar NAFTA Panels under Chp. 11 have drawn criticism from the sovereigntist left (see also William Greider’s “expose” here) but not from the sovereigntist right.

(Having tweaked the ICJ’s slowness here, I should in all fairness point out that this Binational Panel was hardly a model of arbitral efficiency. The original claim was filed on April 6, 2001!)

John Bellinger Nominated to be State Department Legal Adviser

by Chris Borgen

In a nomination that has been widely-expected, John B. Bellinger, III, formerly the legal adviser for the National Security Council under Condoleezza Rice, has been nominated to be the new Legal Adviser of the State Department, succeeding William Taft, IV.

According to a short bio available online, prior to joining the NSC, Bellinger was a counsel for national security matters in the criminal division of the Department of Justice from 1997 to 2001. Prior to that, he served as counsel to the Senate Select Committee on Intelligence (1996), as general counsel of the Commission on the Roles and Capabilities of the U.S. Intelligence Community (1995-96), and as special assistant to Central Intelligence Agency Director William H. Webster (1988-91). Before his government service, Bellinger practiced law with Wilmer, Cutler & Pickering in Washington, D.C. from 1991 to 1995.

Is Internationalism an End in Itself?

by Julian Ku

I should first thank Prof. Heller for adding his insightful comments to our blog. I hope to return the favor at his blog-home at the Yin Blog. Both he and Peggy have useful comments, although I think both are reading much more into my post than I myself intended (but I suppose that is my own fault).

In particular, I didn’t mean to argue, as Peggy suggested, that “you cannot nonetheless argue ex ante that participation in a particular multilateral regime …. is on balance a good thing for the US . . .” Nor did I mean to argue, as Prof. Heller suggests, that “newspapers like the LAT don’t have an equal right to criticize the U.S. for not doing so.”

Let me try to explain. I am agnostic on whether global warming is a real problem (who to believe, Cato or the NRDC?) and I am also agnostic on whether Kyoto is the right mechanism for solving global warming, if global warming is as serious a problem as many believe. I do think that Peggy makes a far more persuasive case for international regulation of global warming than the LA Times piece, which seems to rely heavily on the notion that the Bush Administration and Republicans are in the pocket of the energy industry. That might be true to some degree, but I doubt it is any more true than the Democratic Party being merely the tools of teacher’s unions and trial lawyers (maybe less).

In any event, my point is that the claim that we should join Kyoto because everyone else is joining it (and we should join the ICC because everyone else is joining it), etc, etc. is simply not very persuasive to me. My empirical claim is that this type of argument is also not very persuasive to those people who make decisions (including many on both sides of the partisan divide) or to those people who vote. Maybe I’m wrong, but I doubt it.

I think Prof. Heller’s point is an interesting one. If you take as a given U.S. intransigience, then U.S. supporters of a particular international regime should actually push foreign countries and international institutions to take a tougher line with the U.S. I agree this is perfectly logical, but I doubt this is the best strategy. There is U.S. public support for certain kinds of international institutions, as Peggy points out in her WTO example. While there are pockets of “nationalists for nationalists’ sake” folks (Prof. Heller’s colleague Peter Spiro might call these people “sovereigntists”), I really believe most folks can be persuaded based on the merits of a particular international regime. Again, this is an empirical claim, but a very plausible one I think.

There is a deeper question lurking here. Why is the U.S. so reluctant to sign on to international regimes and to subject itself to international rules that really hurt? (1) Is it because of an influential and hawkish group of elite intellectuals (sometimes called neo-cons) has managed to achieve an iron grip on U.S. foreign policy? (2) Or is it because the majority of voters disapprove of such internationalist policies and elect officials who will represent that view? (3) Or is it simply the rational choice of U.S. decisionmakers that reflects the current power imbalance between the U.S. and the rest of the world? I have to say that I don’t know what the answer is (except I’m pretty sure the first answer is not correct). But it is something worth exploring.

Internationalism, Multilateralism and Kyoto

by Peggy McGuinness

Julian admits that he may be inferring too much when he criticizes the LA Times op-ed written by the NRDC in opposition to the Bush administration’s decision to remain outside the Kyoto Protocol as a wrong-headed rejection of US national interest in favor of internationalism. I agree that Julian inferred too much. I am no expert on global warming, but it seems to me quite reasonable for the NRDC (which has some expertise on the subject) to take on Bush, Crichton and all the others questioning the science upon which the Koyoto Protocol is based. (The full text of the Kyoto treaty can be found here.)

But Julian raises the interesting question of whether it is useful to promote “internationalism” as a valuable in and of itself. Part of the problem is defining what we mean by internationalism. If by internationalism we simply mean reaping the benefits of participation in the international system (e.g., free trade, convertibility of currency, respect for nationality, predictability in the use of force, etc.) in exchange for, more or less, agreeing to certain obligations, than the US is by all accounts “internationalist.” The enormous number of bilateral treaties in which the US participates are evidence of this “internationalism.” And the best evidence of “internationalism” in the area of multilateral treaties is our participation in the WTO, in which the US voluntarily has signed up for multilateral regulation of vast areas of its own economy in exchange for the benefits of the free trade regime. Of course, the decision to do continue to participate in the WTO will be debated as a national political matter, and there may come a time when we decide — through our own political process, subject to all its mechanisms for accountability — to withdraw from the WTO and not participate. That is our right within the international system.

But to say that you cannot nonetheless argue ex ante that participation in a particular multilateral regime (such as the WTO or Kyoto) is on balance a good thing for the US seems unfair. We know from economic theory what the benefits of participating in free trade are, and we can make the case that being “internationalist” on trade is a good thing, without going through all the pluses and minuses of each individual food safety regulation or worker protection statute. Similarly, it is fair to argue that the science behind global warming demonstrates that cooperative, multilateral approaches will be most effective in solving the problem. The only thing lacking in this kind of ex ante analysis, as Julian implies, is the democratic accountability within the participating state. (This is why free trade internationalists have to take seriously the critiques of Ralph Nader, Pat Buchanan and, indeed, the NRDC.) In fact, NRDC knows this; the point of an op-ed in the LA Times, as opposed the the London Times, is to influence opinion in the US to put pressure on the corporations and politicians standing in opposition to Kyoto.

Kevin Heller is correct in his comment noting that the US has, historically, not concerned itself with how many other states have signed on to an agreement when debating the pros and cons of US participation (see, e.g., the League of Nations, the ICESCR). I don’t think that is central to the argument the NRDC is trying to make here. (Although tossing in inaccurate statements that the US has taken the position the “Geneva Convention” [sic] should not bind the US was gratuitous and sloppy.) However inartfully, the NRDC is trying to make the argument that Kyoto is a set of rules that the US should sign onto because:
1) the problem of global warming is scientific fact;
2) reduction of greenhouse gases through Kyoto will help alleviate the problem;
3) the US is the largest producer of greenhouse gases;
4) a multilateral regime without the participation of the US will be ineffectual; and
5) by staying outside the regime, the US is angering the rest of the world, including close allies like the UK.

The fourth point is what makes a unilateral decision of the US not to participate in one or another international agreement different from, say, the decision of Luxembourg not to join. Our failure to participate can doom the agreement. It is the fifth point that, I think, sets up the false internationalist v. non-internationalist dichotomy. I happen to agree that our long-term foreign policy interests should take the views of the rest of the world into account for a host of practical reasons. It doesn’t mean, however, that those views should be determinative of our action.

Why Internationalism Is Not Enough

by Julian Ku

Today’s Los Angeles Times contains a predictable op-ed condemning the U.S. for failing to join the Kyoto treaty to reduce global warming, which will go into effect next Wednesday. In addition to attacking Bush, the Republicans, and Michael Crichton for being the stooges of the energy industry, the writer throws in this line, which is fast congealing into elite consensus:

The rules that apply to the rest of the world, the administration in effect is saying, need not apply to us. International agreements — whether they involve the International Criminal Court, the Kyoto Protocol or the Geneva Convention — should not be allowed to bind the hands of the most powerful nation on Earth. On that point, at least, the U.S. is consistent.

This argument suggests that the U.S. has a responsibility to join international organizations and submit to international law irrespective of (1) what it believes its national interests to be; and (2) what its democratically elected political institutions want it to do.

Maybe I am unfairly inferring too much from this line (as Chris suggested I did yesterday with respect to Samantha Power’s piece), but I do think that this view of how the U.S. should conduct its foreign policy is endemic to many influential advocates, academics, and policymakers. Perhaps the better gloss is that U.S. interests are generally served by joining international organizations and legal systems.

Even in this new and improved form, I think this approach is either naive or unproven (or both). Even though I might agree with the author about joining a particular treaty system (say, the Geneva Convention and maybe Kyoto), I don’t believe that it is always or even usually the case that the U.S (or any country) must do so. Is it always a good idea to create more domestic law and regulation on any subject regardless of the policy consequences? Why shouldn’t such decisions be made on a case-by-case basis (through our normal democratic and constitutional processes)?

All of this suggests that lines about the U.S. “standing alone” and refusing to join the “rules that apply to the rest of the world” are a waste of time. If you want the U.S. to join the Kyoto Treaty, then stick to the policy arguments for doing so. But it is simply unpersuasive to me (and I think to many other people) to argue for that we should join because other countries have joined, an “Internationalism for Internationalism’s Sake.”

Tortuous Definitions of Torture

by Peggy McGuinness

Over at Slate, Peter Brooks (who holds a joint appointment in Law and English at UVA) has this post on the August 2002 Bybee torture memo . Brooks sees Bybee’s failure to follow the “plain meaning” statutory interpretation guidelines reaffirmed by Chief Justice Rehnquist in LEOCAL v. Ashcroft, in which the Court noted that we construe statutory language “in its context and in light of the terms surrounding it,” as:

[A] remarkable example of textual interpretation run amok—less “‘lawyering as usual” than the work of some bizarre literary deconstructionist. And it’s virtually impossible to read without wondering whether another casualty of this war on terror is the doctrine that words indeed mean what they say.

Of course, DoJ conceded the point that Bybee’s statutory interpretation was flawed in the December 2004 memo to James Comey “withdrawing” the Bybee memo.

I wanted to respond to Julian’s question that, if the allegations of torture at Gitmo are credible, why hasn’t there been a serious call by leading politicians for investigations? The answer is undoubtedly complex — and must surely include, in part, the political tone set by a President who refused to acknowledge that any senior officials should be held accountable for abuses that we do know took place. But the absence of outcry does not disprove that abuse tantamount to torture has taken place. Andrew Sullivan, in his recent essay that I mentioned here, raised the disturbing implications of the silence on the Hill and among the broader polity much more eloquently than I ever could:

But in a democracy, the responsibility is also wider. Did those of us who fought so passionately for a ruthless war against terrorists give an unwitting green light to these abuses? Were we naïve in believing that characterizing complex conflicts from Afghanistan to Iraq as a single simple war against ”evil” might not filter down and lead to decisions that could dehumanize the enemy and lead to abuse? Did our conviction of our own rightness in this struggle make it hard for us to acknowledge when that good cause had become endangered? I fear the answer to each of these questions is yes.



American political polarization also contributed. Most of those who made the most fuss about these incidents – like Mark Danner or Seymour Hersh – were dedicated opponents of the war in the first place, and were eager to use this scandal to promote their agendas. Advocates of the war, especially those allied with the administration, kept relatively quiet, or attempted to belittle what had gone on, or made facile arguments that such things always occur in wartime. But it seems to me that those of us who are most committed to the Iraq intervention should be the most vociferous in highlighting these excrescences. Getting rid of this cancer within the system is essential to winning this war. I’m not saying that those who unwittingly made this torture possible are as guilty as those who inflicted it. I am saying that when the results are this horrifying, it’s worth a thorough reassessment of rhetoric and war methods.




Perhaps the saddest evidence of our communal denial in this respect was the election campaign. The fact that American soldiers were guilty of torturing inmates to death barely came up. It went unmentioned in every one of the three presidential debates. John F. Kerry, the ”heroic” protester of Vietnam, ducked the issue out of what? Fear? Ignorance? Or a belief that the American public ultimately did not care, that the consequences of seeming to criticize the conduct of troops would be more of an electoral liability than holding a president accountable for enabling the torture of innocents? I fear it was the last of these. Worse, I fear he may have been right.

ICJ Watch: Germany Prevails Over Liechtenstein

by Julian Ku

From the department of obscure court decisions, the ICJ ruled today that it has no jurisdiction over a dispute between Liechtenstein and Germany over

decisions of Germany, in and after 1998, to treat certain property of Liechtenstein nationals as German assets having been ‘seized for the purposes of reparation or restitution, or as a result of the state of war’ – i.e., as a consequence of World War II -, without ensuring any compensation for the loss of that property to its owners, and to the detriment of Liechtenstein itself.

All courts have their obscure and tedious cases, and this appears to be one of ICJ’s less exciting decisions ( although one of the assets was a Pieter van Laer painting and the total claim may have totalled a billion dollars).

The ICJ essentially dismissed the case for lack of jurisdiction. I have no opinion on whether that is correct, but I do wonder why it took the ICJ three-and-half years from the filing of the Application in June 2001 to reach what seems like a preliminary decision. Imagine if they had decided to go on to the merits!

Protesting Too Much About Samantha Power and the ICC

by Chris Borgen

I think Julian doth protest too much about Samantha Power’s opinion piece in today’s New York Times.

First, a point of logic. Saying someone doesn’t know which they dislike more, A or B, is not the same as saying that person condones A or B. At no point in the piece would it be fair to say that Power even implied that the Bush Administration condoned genocide. To the contrary, she gives the Administration credit where credit is due:

“The Bush administration has been more forthright than any of the United Nations’ 191 member states in denouncing the atrocities in Sudan – a fact that should shame European nations that pride themselves on their human rights pedigrees. The United States was the first to characterize the violence as genocide and the first, way back in June, to name potential perpetrators and call for punishment. It has also dismissed offers by the Sudanese government to conduct the trials at home, rightly recognizing that Khartoum is unlikely to prosecute crimes that it has ordered and committed.”

However, she also takes it to task for where its actions do not match its rhetoric over the Sudan. There’s nothing wrong with that. I’m sympathetic to it since I made a similar point in an earlier post. The fact is, although there is consensus building for an ICC referral, the U.S. does not want to do that because, in the words of War Crimes Ambassador Pierre-Richard Prosper, “We don’t want to be party to legitimizing the ICC.” So, according to an Administration official, a main reason for not sending the Darfur issue to the ICC is not because an ad hoc would do a better job (an argument that Power does an excellent job in debunking) but because, essentially, we don’t like the ICC.

Moreover, regarding the torture in Abu Ghraib and the (ever increasing) allegations about Guantanamo, one should note that the reason the ICC prosecutor isn’t investigating is because the prosecutor himself does not believe the ICC has jurisdcition over any of these claims. If the ICC actually was some out-of-control international tribunal, as the over-heated rhetoric of some of the its detractors suggests, the result would have been different.

The ICC, like any institution, is flawed. Moreover, as I’ve said before, I don’t think any international tribunal will stop the genocide (see also Peggy’s post). Nonethleless, a competent international tribunal can play an important part in securing the peace. It is important that the population in a transitional society believes that justice is being served (such as by a truth commission, an international tribunal, or the domestic courts). According to Power there is a hope in Darfur that those responsible for the killing will be put on the dock in the Hague. We could make that closer to becoming a reality as soon as we stop impeding a referral to the ICC. Doing so would be a step on the road to a sustainable peace. For the moment, though, the Bush Administration isn’t walking that road.

Germany Wisely Won’t Prosecute Rumsfeld (Updated)

by Julian Ku

Common sense triumphed today when Germany announced it would not investigate allegations that Donald Rumsfeld committed war crimes. The NY-based Center for Constitutional Rights had filed a petition asking Germany to investigate on the theory that the U.S. authorities were incapable of investigating such claims due to a “continuing scheme of corruption”. This remarkable (and dare I say it, wild) claim was supported by an affidavit from respected NY lawyer Scott Horton. But, if accepted, it would have been tantamount to saying that, because Bush won the election and still controls the government, the U.S. is incapable investigating alleged war crimes by its own officials. Germany wisely rejected this claim.

If CCR believes there is a torture coverup, why haven’t they called on Congress to investigate or for the DOJ to investigate? Do they think that, for instance, Senators Richard Lugar and Joseph Biden, the leaders of the Foreign Relations Committee, are part of this “continuing scheme of corruption”?

UPDATE: CCR, not surprisingly, blasts this decision (in German) as politically motivated and vows to fight on.

Opposition to the ICC Equals Condoning Genocide?

by Julian Ku

Samantha Power, a tireless Pulitzer-Prize-winning advocate of more aggressive action by the United States to stop genocide and war crimes, offers her take on why the ICC would be more effective than an ad hoc tribunal (a topic we’ve been batting about here) in today’s NYT. Count me as a skeptic of her claim that the ICC will deter war crimes appreciably more than an ad hoc tribunal, but then again, unlike Power, I haven’t spent years reporting on conflicts in Bosnia, Rwanda, and now Sudan. But the most interesting aspect of her article is Power’s obvious contempt for the Bush Administration, which undercuts her otherwise very persuasive piece.

In a very unfair (but effective) phrase, she accuses the Bush Administration of not being able to decide whether it dislikes “genocide” more than the ICC. This is unfair because she is equating opposition to the ICC with condoning genocide. The ICC may be great, but surely Power must concede there are some reasonable objections to the ICC and that one can still want to prosecute genocide while still opposing the ICC, even in Darfur.

Power also notes that the ICC has not “begun investigating the torture and murder carried out by American soldiers and contractors in Iraq or Guantanamo Bay” as an argument that the ICC doesn’t threaten the U.S. The missing word here: “alleged.” Like many in the human rights community, she takes as a given that U.S. policy in Guantanamo Bay has consisted of torture and abuse, but I think, at least with respect to Guantanamo Bay, that cannot be so lightly assumed just yet. The info trickling out of Gitmo has come from allegations in lawsuits that have not yet been confirmed, and from some info from FOIA requests that are piecemeal and incomplete. But Power’s attitude that such allegations are enough for her to conclude that crimes of torture and abuse rising to the level of the ICC’s consideration is more evidence of how quickly she will is willing to assume the worst of motives and intentions of this Administration.

In doing so, Power is playing to her audience of elite opinion and Bush-haters, but she is not convincing anyone else.

The Many Methods of International Legal Scholarship

by Chris Borgen

The increasing use of empirical research in international legal scholarship is a good thing, as Julian noted. Empiricism (or at least an attempt at empiricism) brushes away the cobwebs of musty “givens” and unpacks old assumptions that have been tucked away. By bringing in new data to test academic doctrines, empiricism can do a good job helping theory be more descriptive of (and useful to) practice.

Rational choice theory, however, is merely one menu option among many theoretical world views on how to interpret the data that is generated. I think it is also a good thing that international lawyers are deploying the techniques of rational choice theory, but, as with other theories, it is only one particular approach, with its own set of assumptions and flaws.

For example, prior to publishing The Limits of International Law, Eric Posner and Jack Goldsmith wrote an article entitled A Theory of Customary International Law, which provided a game theoretic appraisal of customary international law. They found that much of what may has been considered customary international law may be no more than the opportunistic actions of states. In his article “Game Theory and International Law: A Response to Professors Goldsmith and Posner” (23 Michigan Journal of Int’l Law 143 (2001)), Mark Chinen, also applying game theory, came to a different set of conclusions, arguing, among other things, that although game theory can be used to explain why states do or do not cooperate, “game theory has nothing to say about whether customary international law is a valid theory of law.” Both articles used rational choice theory, yet in the hands of different authors, the results are quite different.

Similarly, Eric Posner and John Yoo used rational choice arguments as a basis for a critique of Anne-Marie Slaughter and Larry Helfer’s “Toward a Theory of Effective Supranational Adjudication.” Some of their results, though interesting, are counter-intuitive, such as their conclusion that it is preferable to have single arbitrators rather than the standard three-person panel. Their reasoning is that a single arbitrator is more susceptible to retaliation or sanction by the parties in the arbitration, therefore the arbitrator is incentivized to give a neutral judgment.

Perhaps this conclusion holds water theoretically; it flies in the face of the result of the choices of actors in the actual “arbitration market,” though. High-stakes commercial and public international arbitrations are usually multi-person panels. If we place a certain faith in the choices of actors in the market for arbitrations, then why do the rational choices of the actual market clash with Posner and Yoo’s prescription? Clearly, something else is at play, perhaps in the way in which rational choice theory is being deployed.

This is the crux of Slaughter and Helfer’s rejoinder. Among a wide variety of theoretical, methodological, and empirical critiques of Posner and Yoo’s article, they note a “selection bias” in which certain types of tribunals were under-represented, “omitted variable bias” in which crucial factors such as the subject matter that tribunals were able to hear and the power differential among states, were not taken into account.

And these criticisms don’t even consider the broader questions as to whether game theoretic models adequately model decision-making or whether they under-value key variables (ideology, emotion, misperception, among others). See William Poundstone’s The Prisoner’s Dilemma for a fascinating history of the uses and abuses of game theory in foreign policy decision-making.

All this debate over how rational choice theory may be applied to international law is, I think, quite healthy for international legal scholarship, but we should not let it obscure the variety of different analytic methods that exist. The Symposium on Method in International Law, published in 93 American Journal of International Law 291 (1999), and following, is an excellent survey of different methodological schools. (Available at JSTOR, subscription required). Theories from each school are then applied to a common problem so that readers can see how the different assumptions and foci of each methodology plays out over the course of analysis. Similarly, Oona Hathaway and Harold Koh’s new reader Foundations of International Law and Politics is a great place to explore the multiple intersections of international law and international relations theory. Selections include major articles on realism, institutionalism, and liberal theory, as well as on constructivism, legitimacy theory, and legal process theory. These perspectives are then applied to a series of topics ranging from international trade to human rights, environmental policy to humanitarian intervention, to name a few.

Taken together, the theoretical options and challenges to the academic international lawyer are broad and varied. Rational choice theory is a relatively new entrant and it has much promise and is exciting. It is another tool in the theoretical toolbox. With time, we will get a better sense of where it is useful and where it is less successful than other theories in analyzing international law. The Hathaway and Koh book and the AJIL Symposium are good places to survey some of the many other theoretical approaches.

Hussein’s Trial Moving Forward

by Chris Borgen

As an addendum to our previous discussion prosecutions and transitional societies (here and here), I note that the New York Times is reporting that the investigating judges of the Iraqi Special Tribunal will refer to the trial charges against Saddam and/or some of his senior aides in the coming weeks. The article gives a good overview of the process to come. The actual trials, which will follow procedures of civil law (as opposed to common law), will be before five judge panels and are expected to take a couple of months.

The statute of the Iraqi Special Tribunal can be found here.

Oil-for-Food Investigation: Lifting Diplomatic Immunity

by Peggy McGuinness

Kofi Annan announced yesterday that he has suspended the two senior UN diplomats at the center of the Volcker Commission’s Report on misconduct in the Iraq Oil-for-Food Program. The suspension appears to be the first step toward lifting diplomatic immunity, which Annan said he would do if facts support the bringing of criminal charges. Apart from the importance this investigation has to the issue of real accountability within the UN, which we have discussed previously here, here and here, it raises some interesting questions about diplomatic immunity. Why do UN diplomats have diplomatic immunity? And why does the Secretary General have sole discretion to lift it?

The notion that diplomatic emissaries representing foreign states should not be subject to the laws of the state to which they have been sent is one of the oldest and most central tenets of international law. The rationale is pretty obvious: allowing foreign diplomats to carry out their duties requires protection from political harassment through criminal prosecution or civil suits in foreign states. While the scope and terms of diplomatic immunity developed as part of of customary practice, it was codified in the Vienna Convention on Diplomatic Relations of 1961.

Like many international treaties and customs, the rules governing diplomatic and consular immunity are perfectly suited to enforcement through reciprocity. Thus, when state X decides for any reason to declare a diplomat from state Y “persona non grata” and expel her according to the terms of the Convention, state Y will often respond by a retaliatory declaration of “persona non grata” of a state X diplomat posted in state Y. This is usually enough to prevent undue harassment of diplomats who are simply doing their jobs. Real problems arise when diplomats are accused of crimes that even the sending state recognizes are outside the scope of one’s diplomatic duties and the host state wants to prosecute, rather than let the diplomat return home. Fortunately, the protections of diplomatic and consular immunity are not entirely absolute, as this guidebook from the State Department explains. At the end of the day, the immunity belongs not to the individual diplomat, but to the state the diplomat represents. If the sending state has no interest in protecting the diplomat from prosecution, it may lift the immunity and let the diplomat fend for himself. (This is precisely what happened in 1997 when the government of Georgia lifted the immunity for a Georgian diplomat who was subsequently prosecuted and convicted of negligent homicide of a pedestrian in Washington DC.)

Applying the same rationale of diplomatic immunity to the United Nations, i.e., that UN diplomats need protection from arbitrary application of local law to do their jobs, certain designated employees of the UN operate with the protection of immunity under the Convention on Privileges and Immunities of the United Nations. The Convention specifically provides that:

The Secretary-General shall have the right and the duty to waive the immunity of any official in any case where, in his opinion, the immunity would impede the course of Justice and can be waived without prejudice to the interests of the United Nations. In the case of the Secretary-General, the Security Council shall have the right to waive immunity.

If additional facts emerge that warrant crminal prosecution of the two officials (the current report only cites misconduct, not criminality), only the Secretary General is in a position to lift their diplomatic immunity. Here, Annan appears to be under sufficient pressure from UN member states that he is likely to live up to his word and lift immunity if it comes to that. Indeed, it would be hard to argue that keeping immunity in place would not prejudice the interests of the United Nations. Because the Secretary General’s term is limited and depends on the nomination of the Security Council and the vote of the General Assembly, it seems to me sufficient that he has sole discretion to designate those protected by immunity and to lift that immunity when the facts warrant.

The broader issue of immunity for criminal acts by UN representatives– particularly in conflict and post-conflict situations — has prompted some debate. Military personnel assigned as peacekeepers generally remain under the jurisdiction of their sending state for any crimes committed while on duty (or, for war crimes and crimes against humanity, under the jurisdiction of the ICC). Other officials, for example UNIMIK and KFOR officials in Kosovo, generally have been granted immunity under the terms of their UN mandate, much to the consternation of certain human rights groups, who view immunity as an obstacle to prosecuting any “bad apples” assigned to these international missions.

Truth, Justice, and the Pragmatic Way

by Chris Borgen

Julian describes the East Timorese decision to have a “Truth and Friendship Commission” as “another country’s decision (like South Africa) to avoid ‘justice’ in favor of ‘peace’ (some might say ‘impunity’).” This characterization (at least of South Africa’s Truth Commission) is off the mark. The South African Truth and Reconciliation process did allow for prosecutions; essentially people who did bad acts could come clean before the Commission by a certain date or afterwards face prosecution. The potential indictees also knew that the Commission would be compiling more and more evidence from other people coming forward so, if they did not immunize themselves by confessing, they would be facing a prosecutor flush with evidence.

This is not impunity because there was politcal consensus in South Africa that getting as much of the truth out as possible (who was killed when and where) and having fewer, but more effective prosecutions, was a just result. It was not just about political peace but about the former oppressors having to sit there and, in public, confess to what they did. Given that this was what the majority of the public wanted, that is not impunity.

But what about East Timor? I didn’t immediately say that Julian’s characterization was on or off the mark in that case because we need to see the actual design of the Truth Commission. There has been interesting work on the comparative design of truth commissions and you just can’t lump them all together, especially when trying to assess whether one decreased “justice” and increased “impunity.” The political climate, the desires of the public, and the structure and power of the Commission are all key variables. South Africa’s Commission is considered very successful and very difficult to replicate (due to the widespread public support); Haiti’s, by contrast, was almost completely dysfunctional (underfunded, underutilized, no real power at all).

The other point that Julian made that I wanted to point out was his argument that “in future conflicts, countries like East Timor probably won’t have the option to forego prosecutions like it is choosing to here because it would be subject to the demands for prosecution by the International Criminal Court.” First of all, Article 17 does not need to be read to require domestic prosecution; at issue is whether the state in undertaking an “investigation or prosecution.” (The rest of the Article refers simply to domestic proceedings.)The ICC may step in if “[t]he proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court.” Thus, the ICC could only seek jurisdiction if the domestic proceeding is just an attempt to shield one or more persons from prosecution. That does not describe the South African truth commission.

Actually, ICC deference to truth commissions is an issue that is being carefully considered. (See here, here, and here.) Unsurprisingly, the issue of deference relates to assessing issues of the design of the commission and whether it is an actual attempt at conflict resolution or merely a sham undertaken to shield a criminal. As Professor James Crawford of the University of Cambridge has said in relation to Article 17:

I think there is a question about truth commissions, because you can’t say a priori which ones are a reasonable response to the situation, and which ones are a cover-up. It’s going to require extreme care by the prosecutor. There may be some problem there with the capacity to subvert those processes if they are reasonable, and we’ll just have to hope that the institutions within the court take a sensible view about it. But complementarity extends to covering internal processes which don’t necessarily involve prosecutions of individuals, so there’s no reason why the principle of complementarity ought not to cover an appropriately constituted truth commission.

Professor Crawford said that he expected that over time the ICC would develop criteria for deference. So, rather than Julian’s concern that the ICC will stifle Truth Commissions or his concerns that such Commissions just sign off on impunity, the ICC may play a role in the development of a set of “best practices” for truth commissions.

Fool proof? Of course not. But not as dire as Julian fears. And, pragmatically, not a bad idea.

East Timor Spurns an International Court

by Julian Ku

East Timor announced today that it has reached a tentative agreement with Indonesia to set up a Commission of Truth and Friendship to investigate human rights abuses and crimes committed during Indonesia’s occupation of East Timor. While somewhat controversial among human rights groups who sought a Rwanda or Yugoslav-style ad hoc tribunal, the East Timorese foreign minister explained that:

We believe that the best form of justice for the victims is that the truth be acknowledged and that the perpetrators — whether as individuals or collectively — acknowledge their responsibility and fully cooperate with the commission.



If it sticks, this will mark another country’s decision (like South Africa) to avoid “justice” in favor of “peace” (some might say “impunity”). Whether it is, as Chris might argue, a “sustainable peace” is another question. Interestingly, in future conflicts, countries like East Timor probably won’t have the option to forego prosecutions like it is choosing to here because it would be subject to the demands for prosecution by the International Criminal Court, to which it is a party (the ICC doesn’t have jurisdiction here because the war crimes occurred prior to its establishment).

Dirty Harry II: New Problems, New Rules

by Chris Borgen

Comparing and contrasting the perils and opportunities that international lawyers see in the world with those of non-lawyer foreign policy specialists can be enlightening. At the very least, it can help keep international lawyers from entering into a cul-de-sac where they are more concerned with doctrinal paring than problem solving.

In an earlier post, I mentioned a recent article (“What Dirty Harry Can Teach the New Geneva Conventions”) by Dr. Thomas Barnett, author of The Pentagon’s New Map. In this and in one or two subsequent posts, I want to unpack some of Barnett’s theories concerning emergent threats to national security and the “new rule sets” needed to respond to them in comparison to some concerns of international lawyers. I’ll begin here by comparing and contrasting how Barnett defines and considers “rules” with the practices of international lawyers (broadly speaking).

First and foremost, Barnett’s conception of “rule sets” is much broader than the legal rules that are the primary (though not only) concern of international lawyers. In The Pentagon’s New Map, he begins by simply calling rule sets “a collection of rules that delineates how some activity normally unfolds.” (p.9) He later defines rules as: “[a]ll the procedures, laws, treaties, rules of thumb, and conventional wisdom that seem to guide the actions of individuals, corporations, governments, and the international community at large.” (p.22)

Barnett is thus concerned with a very broad range of sources ranging from what would be more traditionally considered law (treaties, customary international law, etc.) to that which would not (strategic doctrines, standard operating procedures, etc.). Although broader than older definitions of “international law” as the law governing the relations between states, his conception of rules is similar in some respects to Phillip Jessup’s definition of transnational law (“[A]ll law which regulates actions or events that transcend national frontiers. Both public and private international law are included as are other rules which do not wholly fit into such standard categories.”) with some non-binding “soft law” added on.

Within this set of possible rules, though, Barnett’s focus may be a little different that that of an international lawyer. Although non-binding elements such as “soft law” are gaining increased attention, international lawyers still spend the majority of their efforts on drafting, analyzing and (hopefully) elucidating more traditional sources of law such as treaties, customary international law, and caselaw. Barnett, though definitely interested in treaties and (without using the formal term) customary international law, seems particularly concerned with strategic doctrine. The “legal” rules of most interest to him are the laws of armed conflict concerning the ability of a state to use military force (jus ad bellum).

Barnett’s strategic priorities are intertwined with the idea of certain rule sets being of national interest: “our strategic vision for national security needs to focus on growing the community of states that recognize a stable set of rules regarding war and peace.” (p.25) He further contends that “the emerging global conflict lies between those who want to see the world grow ever more connected and rule-bound and those who want to isolate large chunks of humanity from the globalization process so as to pursue very particular paths to ‘happiness.’” (p.32) He calls the set of like-minded states that have signed on to these rule sets the “Core” and the states that are the rogues, the revanchists, and the disconnected, the “Gap.” Barnett’s project is largely concerned with how to bring states out of the Gap and into the Core.

On one hand, international lawyers would be heartened that the assessment of this foreign policy analyst is that U.S. national security can be best enhanced by getting an ever-increasing number of states to sign on to certain “rule sets” (including, but not limited to, the sources of international law itself). What could be a source of interesting debate and discussion between international lawyers and foreign policy specialists is the process by which this transition from the Gap to the Core takes place.

Barnett argues that

America is not going back on any of [its] ideals. They all still apply in shades—inside the Core. Inside the Core we have achieved something awfully close to Kant’s perpetual peace—not just inside the Old Core [the U.S., Europe] but likewise inside the New Core of Russia and China. (p.169)

He later continues:

It’s not that America wants one rule for itself and another for the rest of the world, just that America needs special consideration for the security roles it undertakes inside the Gap. In effect, we don’t want fellow Core members applying their Kantian rule sets to our behavior inside the Hobbesian Gap.

He further explains the need for one set of rules to apply within the Core and another within the Gap.

This concern—how we get from the Core to the Gap will be the subject of my later posts. For now, a few notes concerning how some international lawyers may react to Barnett’s thesis as I’ve described it thus far:

Barnett’s conception of rule sets is more instrumentalist—ends driven—than how many international lawyers may talk about “law.” While “rule sets” and laws are both means to one or more ends (peace, stability, justice, etc.), the idea of law carries with it also the idea of “rights.” That is, choosing to follow or not follow a rule may be a strategic choice but for lawyers, breaking a law (such as, for example, the prohibition of torture) also involves denying a right that is intrinsic to an individual’s personhood. States also have certain rights, such as non-interference in domestic affairs except in certain extreme cases (genocide, etc.).

If Barnett does not distinguish between some rules (that are actually laws) and others (that are not) then his theory will be dissonant at various points with international law. (It is unclear whether or not he would separate his rule sets into such categories.) These divergences with accepted international law would particularly arise if there is one set of rules that apply within the Gap and another in the Core. While Barnett has stated that there needs to be laws that address problems such as torture, he has also written that the U.S. needs to have leeway in invading other countries in prosecuting the War on Terror. Which laws are worth saving (the proscription on torture) and which are not (some of the jus ad bellum rules) is an open question.

Moreover, explicit in Barnett’s analysis is the leadership role of the United States and the special treatment that it deserves. The relationship of hegemony to international law is one that has been of much interest to international lawyers and I will also consider that in a later post.

Barnett’s essay in Wired and his book provide a road-map for using “rule sets” to increase the zone of peace. Depending on how his theory is applied, though, one may inadvertently jettison law in favor of “rule sets.”

For another take on whether there need to be new rules for the evolving startegic landscape,, see the joint American Sociaty of International Law/ Council on Foreign Relations Roundtable on “Old Rules, New Threats.”

I’ll return to these issues in later posts.

Pres. Bush’s Budget and the WTO

by Julian Ku

Who says President Bush doesn’t respect the judgments of international tribunals? While President Bush’s “austerity” budget full of sweeping cuts is mostly a domestic story, two of his proposed cuts can be explained as an effort to bring the U.S. into compliance with WTO decisions.

First, and more obscurely, the budget calls for eliminating the so-called Byrd Amendment, a provision much hated by foreign companies because it transferred fees collected from foreign companies to their U.S. competitors. This provision had been declared a violation of WTO rules and President Bush’s budget proposal is intended to bring the U.S. into compliance with that decision (as a bonus, the plan would also save the U.S. Treasury about $1.6 billion). Interestingly, President Bush is the one who wants to comply with the WTO ruling while Senator Byrd (a Democrat) is the one who is proposing that the U.S. refuse to comply.

Second, the budget plans serious cuts to U.S. agricultural subsidies, which would likely have been the target of negative WTO rulings in the future and certainly a major obstacle to the next round of WTO negotiations. President Bush’s proposed cuts not only are drawing praise from abroad and from NGOs like Oxfam, but it also lays down the gauntlet for the E.U. to do the same.

International Legal Theory Gets Rational and Empirical

by Julian Ku

At first glance, the last thing international law scholarship needs is more theory. Yet, while there is plenty of IL theory, in some ways IL theory is relatively undeveloped. Most importantly, until recently, IL theory was unaffected by the rational-choice juggernaut that swept almost every other discipline, including IL’s sister discipline of international relations.

But rational choice has arrived with a vengeance, as Eric Posner and Jack Goldsmith’s recent book, The Limits of International Law, demonstrates in developing a rational choice approach to explaining both customary international law and treaties. Oona Hathaway, who comes to quite different conclusions about IL compliance than Eric Posner, also draws on rational choice assumptions in her most recent article Between Power and Principle: An Integrated Theory of International Law, although her theory “disaggregates” the state to focus on the importance of domestic institutions (a point Chris argued here).

Hathaway is also known for her reliance on empirical studies to buttress her claims, as Peggy explained here. The increasing importance of empirical methodologies can be illustrated in Andrew Guzman and Beth Simmons’s recent article Power Plays & Capacity Constraints: The Selection of Defendants in WTO Disputes, which conducts an empirical study of WTO disputes to conclude that the “capacity” (e.g. the ability of a country to develop the trade litigation expertise) is more important than the relative poverty of the country in determining whether it will bring claims against more powerful and wealthy states in the WTO system.

In any event, it is hard to resist concluding that IL theory (at least in the U.S.) is trending inexorably toward rational choice assumptions, game theory models, and sophisticated empirical research.

Afghan War Crimes Survey

by Peggy McGuinness

A report published last week by the Afghanistan Independent Human Rights Commission paints a bleak picture of the challenges facing post-conflict justice in that country. According to the report, 70 percent of survey respondents said they had been victims of what could be called a crime against humanity. Interestingly, however, only 40 percent of survey respondents favored prosecution of war criminals. Long-term peace and stability in Afghanistan require some form of justice. The question is what form it should take. The full text of the report can be found here.

Darfur, Rwanda and the Limits of International Human Rights Law

by Peggy McGuinness

I wanted to return, briefly, to last week’s discussion of Darfur. As Julian noted, the UN report concluded that, while crimes against humanity have occurred and should be referred to the ICC, the atrocities do not meet the definition of genocide under international law. Lay observers are scratching their heads over the legal distinction between certain criminal “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group” (from the Genocide Convention) and criminal acts “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack,” (from the definition of crimes against humanity in the Rome Statute of the ICC) and how, as many international lawyers maintain, that distinction can possibly make a difference in terms of what the international community should do about it.

This technical distinction and the current squabbling over the ICC reference demonstrate the real limits of international law in the context of mass atrocities. Indeed, on the question of the Sudanese government’s own obligations, the UN report tends to underscore the skeptical view that international law makes no difference in the behavior of bad regimes:



The Sudan is bound by a number of international treaties on human rights.

These include the International Covenant on Civil and Political Rights

(ICCPR), the International Covenant on Economic, Social and Cultural Rights

(ICESCR), the Convention on the Elimination of All Forms of Racial Discrimination (ICERD), and the Convention on the Rights of the Child (CRC). The Sudan has signed, but not yet ratified, the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict. In contrast, the Sudan has not ratified the Convention on the Prevention and Punishment of the Crime of Genocide, the Convention on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, or the Convention on the Elimination of Discrimination Against Women. At regional level, the Sudan has ratified the African Charter on Human and Peoples’ Rights. As a State party to these various treaties, the Sudan is legally bound to respect, protect and fulfill the human rights of those within its jurisdiction.

So why, if Sudan is a party to all these treaties and the UN has concluded that violations of these obligations have taken place, is there any debate about what the rest of the international community should do? The international system is, at bottom, voluntary, and Sudan has voluntarily agreed to the most basic of human rights obligations. (And, on the question of genocide, most scholars agree that the illegality of genocide is one of the jus cogens norms in international law, i.e., an obligation which rises to the level of universality and can never be abrogated.) The simple answer to why bad regimes sign onto obligations they have no intention of meeting is that they can. Oona Hathaway in her excellent empirical examination of human rights treaties, Do Human Rights Treaties Make a Difference?, presents a framework for understanding why states sign, but do not comply with, human rights treaties, including the fact that rights abusive regimes may reap gains from the international community through mere accession to a treaty by appearing to “do the right thing.” The harder question to answer is why the rest of the world lets them get away with it.

Rwanda, which was supposed to be the last “never again” moment for the African continent, offers some important lessons about this question. The central lessons of Rwanda have little to do with criminal prosecutions and everything to do with effective monitoring of warning signs of extreme social hatred, making sound international political decisions that apply coercive measures to perpetrators, and understanding the appropriate use of military interventions — including effective rules of engagement in the midst of ongoing atrocities. In fact, Human Rights Watch, a great supporter of the ICC, published this list of the ten lessons learned about Rwanda; not one of them mentions prosecutions. The UN Report evaluating the Rwanda genocide was even more blunt: with a couple of thousand additional troops on the ground, and clearer rules of engagement, hundreds of thousands of lives could have been saved.

Viewed in light of the lessons of Rwanda, the ICC discussion about Darfur seems so clearly beside the point at this time. Darfur needs military intervention with teeth. There may be important legal reasons to preserve the distinction between genocide and other crimes against humanity. But it should not affect political responses to Darfur. As long as the Security Council is hamstrung because of obstacles thrown up by Russia and China — both of whom have much to gain from their close relationships with the Khartoum regime — the US and the EU should work together to bring about an effective non-UN-based military intervention.

WTO Watch: Japan "Sues" U.S.; S. Korea "Sues" Japan

by Julian Ku

Japan has officially requested the creation of a WTO dispute settlement panel claiming that U.S. anti-dumping laws violate WTO rules. Meanwhile, South Korea has requested a panel to challenge Japan’s administration of a seaweed import quota that results in strict limits on seaweed imports from South Korea. My American-centric worldview suggests that the challenge to U.S. anti-dumping rules is likely to be more significant, since it is the cornerstone of latent U.S. protectionism, but then again, the Great Korean-Japanese Seaweed Struggle may be more important than I realize.

The Problem with Torts Over Torture

by Julian Ku

A quick response to Peggy’s very thoughtful post taking me to task for criticizing the Guantanamo Alien Tort Statute lawsuits. I think most of our disagreement is simply due to sloppy language on my part. I do think it is strange that enemy combatants will sue the U.S. in its own courts for violations committed during a period of military hostilities. For this reason, I think the lawsuits are not only remarkable, but will also have lots of problems succeeding because of various legal obstacles (particularly sovereign immunity).

I obviously agree that whether the Gitmo detainees were innocent or not, they could not legally be tortured under U.S. laws. But I also believe that the Gitmo detainees will, by filing these suits, expose themselves to discovery requests about their own behavior and association with the Taliban or Al Qaeda. Unless they are “innocent” by which I should have said “unassociated” with the groups to which Congress authorized the President’s use of military force, I just can’t imagine a U.S. jury awarding damages, even if they should.

Finally, I think these suits may have a greater effect on U.S. government policy than the Acree suits will have on foreign countries because the Gitmo suits are against the U.S. government and officials in U.S. courts. The Acree suits are against a foreign government and it is harder to imagine a foreign government in the future, probably a different government, being deterred by the threat of lawsuits in U.S. courts.

Of course, it is hard to say for sure what the effects of these lawsuits will be, and the use of foreign courts to go after U.S. officials is another interesting legal front in the war on terror.

Maybe Some Accountability for Abu Ghraib?

by Julian Ku

Defense Secretary Rumsfeld tried to resign (twice) over the Abu Ghraib scandals last year, but President Bush refused both times to accept his resignation. As I explained here, I think someone, probably Rumsfeld, should take responsibility for Abu Ghraib and I almost thought his attempt to resign reflected a similar feeling. But then, he makes this boneheaded statement:

What was going on in the midnight shift in Abu Ghraib prison halfway across the world is something that clearly someone in Washington, D.C., can’t manage or deal with . . . I have no regrets.



Rumsfeld is not responsible for Abu Ghraib because he intended for it to happen. He is responsible (in my mind) because he failed to create policies and procedures that would have prevented the abuses from occurring. For all the yelling about Gonzales (update: see this NYT editorial today), if any cabinet officer is responsible for Abu Ghraib, it is undoubtedly Rumsfeld.

Update (2/4): I should also have noted this account suggests Rumsfeld will avoid going to Germany because of a lawsuit filed there by the Center for Constitutional Rights accusing him of responsibility for the Abu Ghraib abuses (note, unlike U.S. lawsuits, this is essentially an individual request for a criminal prosecution that German prosecutors have an obligation to investigate). I don’t approve of this sort of lawsuit in general, because I think Rumsfeld was guilty of negligence for which he should have resigned, but not “war crimes” and, in any case, a German court is unlikely to be a good forum to hash this stuff out. In fact, as Professor Bainbridge’s semi-facetious reaction here illustrates, it is likely to spur a rather unhelpful reaction from the U.S.

And I am a little bit shocked that CCR has added to their German filing an expert affidavit by Scott Horton, a partner at Patterson Belknap in New York and an adjunct prof at Columbia, who apparently concludes that no criminal investigation of the Abu Ghraib abuses could occur here in the U.S. because the “criminal and investigative functions are controlled by the individuals who are involved in the conspiracy to commit war crimes.” This is strong stuff and I am curious how Horton backs up his Chomsky-like claim that the U.S. government, and its Justice Department, have become dominated by war criminals.

Judge Sentelle and the Guantanamo Cases

by Julian Ku

Publius passes along this “liveblogged” account ofJudge David Sentelle’s talk at Columbia Law School on Tuesday. His views matter more than usual because he sits on the court that will hear the appeal of the Guantanamo detainee decision we have been blogging about.

Unfortunately for anyone hoping to get a preview of the outcome, Judge Sentelle is an experienced and savvy judge, which means he did not reveal anything specific about how he might rule in the case if it comes before him. I’m guessing he is sympathetic to the dissenters in Rasul, but it is hard to tell for sure. But maybe I’m missing something….

Update (2/4): Sorry I’ve been having some problems with Blogger, but the link to the Sentelle talk should be up now.

Oil for Food: Volcker Finally Delivers (or Does He)?

by Julian Ku

The Interim Report from Paul Volcker’s Independent Inquiry Commission investigating the UN Oil-for-Food scandal has been out for barely two hours, and already the blogosphere is on the case (via instapundit) declaring it at once damning and a whitewash. Of course, it’s one thing to react to the report, it’s another to actually read through the (unbelievably boring) 246 page report.

Here is Annan’s statement, and here are some pre-release complaints about the Volcker Commission from Heritage suggesting it is likely to try to whitewash or downplay the scandal.

Dirty Harry and International Law

by Chris Borgen

Thomas P.M. Barnett, formerly of the the U.S. Naval War College and author of The Pentagon’s New Map (a much talked-about book concerning the future of U.S. foreign policy) has an essay entitled “The New Magnum Force: What Dirty Harry Can Teach the New Geneva Conventions” in the current issue of Wired. (See also his blog.) His article is on the need draft new rules that address the new security threats in the changing international system.

He writes:

So many suspects, so little time. No wonder we bend the rules here and there, declaring terrorists unworthy of protection under the Geneva conventions. It might work for a while – until the photos from Abu Ghraib are posted on the Web, and you have to explain to your kids why that sort of stuff is OK when the bad guys are really, really bad. And if you’re the president? Well, maybe the doubts creep in when your own White House counsel warns you about possible war crimes charges over Guantanamo.

The Geneva conventions, as it turns out, served a few purposes: They created an international order, separated the civilized nations from the outlaws, and protected Americans. The 1949 convention was designed to prevent a rerun of the atrocities of the last great global war – a struggle between sovereign states. Today, we’re waging a new type of war (for us, at least) against a new type of enemy (the Man With No State).

Unless we want to spend the rest of this conflict trying to rationalize police brutality and torture, the US needs to acknowledge (1) that it’s not above the law; and (2) that it needs a new set of rules for capturing, processing, detaining, and prosecuting such nonstate actors as transnational terrorists. In short, we need Dirty Harry to come clean. Frontier justice must be replaced by a real justice system. And there’s nothing wrong with figuring this out as we go along.

The rest of the essay develops his ideas on how “Dirty Harry” can “come clean.” In short, he argues that the U.S. and its allies in the War on Terrorism should continue taking the initiaitve on fighting terrorism but in the long-run, the national interest of the U.S. will be best served by fostering the construction of new norms and international insitutions that guard against the threa of state-sponsored and non-state terrorism. These rules will need to be written by the U.S. and like-minded states engaged in the struggle against terrorism. Consequently, Barnett argues, the UN would not be the best forum for developing these new norms. As he puts it, an organization where Libya can chair the Human Rights Committee lets bad actors off too easily. Instead, the U.S. and its allies should focus on the construction of a new organization, a World Counterterrorism Organization or “WCO.” Thus current state practice by the U.S. and its allies would lead to a new normative structure more conducive to combatting the new threats of failed states, powerful non-state terrorism, etc. These norms, in turn, would then be institutionalized in a WCO.

Although not explicitly about international law, his essay is full of interesting observations and ideas about the relationship of international law to national security and also about the process of international law making. Many of his points are implicit in his argument. For starters: the need to transform from vigilantism to norm-creation; the process of making a new security system by first (arguably) breaking the rules of the current system; the need for international organization;building effective international organizations by not letting all states come around the table; like minded-states writing new norms and then inviting others to join and/or imposing the norms on them.

It is too much to cover in a single post, so I will be returning to these ideas in subsequent posts in the next couple of days. In any case his essay, his book, and his blog make for thought-provoking reading.

Sorting through the Torture Debate: Lederman in a Split Decision

by Julian Ku

Marty Lederman of Balkinization has been kind enough to leave a comment below wondering why I only give him a “split” decision in his debate with Heather Macdonald over U.S. interrogation tactics. They have recently continued their debate here. I agree with Mickey Kaus that the Macdonald-Lederman debate usefully clarifies a lot of the confusion (some of it intentional) by partisans on both sides. So here’s my scoring of the debate, so delayed in blogosphere terms that no one can remember what the original discussion was about.

(1) MacDonald is certainly on strong legal ground when she argues that Al-Qaeda members, irregular Taliban fighters, and (I would argue maybe Iraqi insurgents) do not deserve the full protection of the Geneva Conventions in the same way that, say, Iraqi soldiers in the Saddam regime deserved. Round goes to Macdonald

(2) But Lederman rightly points out that laws other than the Geneva Convention are at stake here. The U.S. is obligated by treaty and statute to abide by the Convention against Torture and U.S. soldiers are bound by the Uniform Code of Military Justice. These laws apply whether or not the “terrorists” are “lawful or unlawful combatants.” Round goes to Lederman

(3) Lederman goes on to blast DOJ and DOD lawyers for coming up with such narrow interpretations of these laws as to be completely implausible. Here, I think he is on less solid ground. The U.S. may receive the opprobrium of the international community, or it may not, but I am not convinced that the traditional methods of statutory interpretation here require a different result. Nothing in the plain text, legislative history, or case law of the Torture Implementing Statute leads me to say Lederman is wrong, but nothing leads me to say he is right either. For instance, both the widely decried August 1, 2002 memo and the recent December 2004 retraction seem persuasive as a matter of statutory interpretation to me. Both attempt to interpret the text, in light of its common meaning, its legislative history and intent, relevant caselaw, etc. etc.

Surely, Lederman agrees that the executive branch has some discretion, partially derived from its Commander-in-Chief power, to adopt narrow interpretations of laws governing their conduct of military and foreign policy. I probably would have drawn the line differently here, but I can’t fault lawyers for trying to come up with an interpretation of the law that narrowly gives the executive discretion over interrogations. Given that most people agree that there are extreme circumstances where extremely coercive techniques are at least morally justified (the ticking time bomb scenario), wouldn’t we prefer to give the executive the discretion to determine when to use extreme coercive interrogations?

Don’t get me wrong. The abuse of this discretion at Abu Ghraib, Guantanamo and probably by the CIA overseas is wrong and, if the facts that are coming out are true, they are horrendous. But I’m not convinced that some of the coercive techniques approved (say waterboarding or sleep deprivation) could never be legal and I do think the executive needs some discretion to determine when such extreme measures are necessary. No winner here.

(4) Having endorsed giving the executive discretion under the law, it is crucial that we can hold those executive branch officials for abuse of that discretion. Macdonald and other defenders of the Administration harp on the fact that the Administration never approved the abuses at Abu Ghraib and even Lederman agrees there is no “smoking gun” linking high officials to the abuses. Instead, he relies on the legal analysis creating a culture of tolerance for abuse. I’m not convinced that legal analysis exploring the limits of legal discretion in extreme circumstances inexorably leads to abuses, but in this case, there was obviously some severe and horrendously damaging abuse of discretion here.

If the Administration has a policy to treat detainees “humanely” but nonetheless prisoners are not being treated “humanely” as well as (possibly) in violation of certain laws, the Administration is responsible for not preventing these abuses, even if they were not technically illegal. In order for the Administration to use coercive interrogations skirting the lines of legality, they must demonstrate the judgment and the credibility that they would wield such power judiciously. Their record thus far is not very reassuring, to say the least.

No one in the Administration is defending the abuses, but no one in the administration is taking responsibility for the abuses either. Macdonald’s defense would be a lot stronger if she would at least concede that serious mistakes were made by the Administration and someone has to take responsibility for it. Round and decision goes to Lederman

I certainly admire Lederman’s analysis of the so-called “Torture Memos” and their effect on U.S. interrogation policies. He has certainly provided the most comprehensive blend of legal analysis and factual investigation of the various interrogation controversies that I’ve seen anywhere in the blogosphere. But while he is rightly outraged by the abuses in the interrogation policy, I think his focus on the legal memos misses the mark. The scandal is not that lawyers explored the outer limits of the law. The scandal is that the Administration could not prevent abuses that may have been torture even when it said they wanted to, and has not pledged to take any serious measures to prevent this from happening again. That’s bad enough.

International Law Prof Nominated for Nobel Peace Prize

by Julian Ku

Michael Scharf, a professor of international law at Case Western Reserve University Law School, was nominated for a Nobel Peace Prize yesterday by six foreign governments for his work “significantly contributing to the promotion of peace throughout the globe by providing crucial pro bono legal assistance to states and nonstate entities involved in peace negotiations and in bringing war criminals to justice.” Professor Scharf’s work mainly occurs through the group he co-founded, the Public International Law Policy Group which provides “free legal assistance in areas such as peace negotiations, human rights and constitution drafting” to countries emerging from civil strife such as Bosnia.

Distinguishing Guantanamo

by Julian Ku

David Glazier, a former naval officer and current research fellow at UVA’s Center for National Security Law takes issue with my claim that due process rights in Guantanamo may lead to due process rights at other U.S. military bases overseas. He writes:

Having spent extensive time at overseas naval bases (I was stationed at Yokosuka, Japan for 20 months and have visited Guantanamo (GITMO) three times, most recently as the commandingofficer of a frigate in early 2001), I can tell you there are MAJOR differences between our use of GITMO and other leased bases. Under most base agreements the host nation exercises significant practical controls,particularly in areas such as immigration and customs. We cannot host athird country national, for example, at Yokosuka w/o Japanese approval. Andservicemen reporting for duty in Japan clear Japanese customs andimmigration. In Cuba we do as we please in terms of having people come and go.



Something the administration has overlooked is that had the courtsadopted their view that Cuba still enjoyed sovereignty over GITMO, we would then logically have had to secure their consent to any third countrynationals’ presence; i.e. they should be able to veto detentions there; notonly of the current terror suspects but also such previous use as the largescale detention of Haitian refugees. And it surely would have called into question the legality of past detentions of Cuban refugees as well.



Since the U.S. has given up our naval base at Roosevelt Roads, P.R., GITMOis essentially our only base in the Caribbean, and is thus key to supporting a variety of national security concerns including interdiction of illegalmigration, drug smuggling, etc., not just detention of suspected enemycombatants. So I’d argue the court decisions finding federal jurisdiction over GITMO have actually served our longer term national security interests better than the single-issue preoccupation of the administration.The Navy’s longstanding interpretation was that “ultimate” Cuban sovereignty referred to in treaty language meant the literal dictionary definition ofultimate — last in time, not the common connotation of ultimate as meaningsuperior. That is, Cuba would be sovereign when the U.S. finally decided to end the lease. Of course no one currently in the Navy would want to incurthe wrath of the administration by making this point very forcefully.

I think Dave makes a very good point and I of course defer to his superior knowledge of how the military bases work, and that factually, Guantanamo may be sui generis. Only one quibble: you can imagine countries that are very deferential to the U.S. (Afghanistan and Iraq under occupation come to mind) on hosting third party nationals. Or to take an historical example, U.S. bases in occupied Germany and Japan at the end of WWII were probably similar to Guantanamo – we were there until we chose to leave.

At one point does that deference by the host country suggest that we are essentially exercising sovereignty such that the base falls within federal habeas jurisdiction and requires giving alien combatants there due process rights?

Darfur, the ICC, and a Sustainable Peace

by Chris Borgen

Julian correctly notes that international tribunals aren’t very effective at stopping ongoing killings. He misses the point that they (a) are effective in helping define post-conflict legal order in transitional states and consequently (b) play an important part in saving lives in the long run. Kristof understands this. He understands that in order to get some type of stability in the Sudan and a sustainable peace, there needs to be credible justice.

The Bush Administration, for its own political reasons, would like an ad hoc tribunal to hear these cases. It has not been able to get the support of the Europeans to fund such a tribunal as they view that there is already a competent tribunal in existence, the ICC. The point of the ICC was to put an end to the relatively inefficient funding of ad hoc tribunals (each needing its own infrastructure and staff) and put all such claims before a single court that would build expertise in the area.

So, in the absence of political consensus, what should the Bush Administration do? They seem to be choosing that it would be preferable to have no tribunal hear these claims over having the ICC hear the claims. This is unwise and it does place the concerns of the victims of violence (I would say genocide) in Darfur secondary to the Bush Administration making a point about its dislike of the ICC.

An ad hoc tribunal is unlikely to do as good a job as the ICC. Not having any tribunal at all puts long-term peace in the region on shakier ground than if there was a tribunal to hear these claims. While the Bush Administration should be commended for pushing the international community to recognize the horrors of Darfur, it is nowhere near where it should be in terms of actually securing a peace.

Customary International Law and Judge Green’s Guantanamo Opinion

by Chris Borgen

Scott Sullivan at the Transatlantic Assembly has picked up an interesting point on Judge Green’s Guantanamo opinion. He notes that Judge’s Green opinion states that it is “unnecessary” to look to the detainees’ customary international law claims as they were found to have Fifth Amendment and the Geneva Convention claims. Sullivan argues that this is unsatisfying and concludes “This seems to be the prototypical circumstance where CIL was envisioned to “fill the crack” of the treaty-based legal scheme.”

Darfur Deadlock – Whose Fault? (The NYT weighs in)

by Julian Ku

Following up my Darfur post , I note that Nicholas Kristof of the NYT weighs in and, predictably, lays all the blame here on the U.S. opposition to the ICC. He quotes Kenneth Roth of Human Rights Watch: “The I.C.C. could start tomorrow saving lives . . . [w]ith the [ad hoc] tribunal route, you’re talking about another year of killing.”

This is ridiculous. Kristof of all people should realize that (1) the U.S. has been the primary reason why the world is paying any attention to Darfur in the first place when it declared the atrocities “genocide” back in Sept. 2004; (2) the atrocities in Darfur may have begun prior to 1 July 2002 thereby excluded from the ICC’s jurisdiction, and most importantly (3) neither the ICC nor an ad hoc tribunal will stop the atrocities, as Peggy argued here.

International criminal courts are good at punishing war criminals and providing retribution for victims, but they cannot save lives in an ongoing conflict. Just ask the Bosnians, Kosovars, and Tutsis whether they would have preferred ICC indictments or the U.S. Air Force.

ICJ Watch: Peru Will Sue Japan for Fujimori

by Julian Ku

Peru has announced it will bring an application to the International Court of Justice seeking to force Japan to turn over former Peruvian President Alberto Fujimori to face corruption charges. I’ve heard rumors about Peru bringing such a case for years but I never figured out what the legal basis would be because Peru and Japan do not have an extradition treaty and Fujimori is certainly not accused of anything rising to the level of serious war crimes and/or human rights violations. Still, I wonder if this case will result in yet another major power (Japan) withdrawing its acceptance of the ICJ’s compulsory jurisdiction.

Allan Farnsworth and Private International Law

by Chris Borgen

Professor E. Allan Farnsworth of Columbia Law School passed away yesterday. Although best known as the dean of contract scholars, a Reporter of the Restatement (Second) of the Law of Contracts, and the author of influential treatise and casebook on contracts, Professor Farnsworth also had a profound influence on private international law. Not only was he a central figure in the development of both the Convention on Contracts for the International Sale of Goods (CISG) and the UNIDROIT Principles of International Commercial Contracts, but his scholarship on these instruments and on comparative contract law is a benchmark for academics writing in private international law and comparative law. Consider just three short pieces available on the Internet on international aspects of contract interpretation, good faith in the law of contracts, and the use of standard forms. Moreover, his casebook on Contract law, co-written with William Young and Carol Sanger, asks students to compare and contrast U.S. domestic law to examples from other countries, the CISG, and the UNIDROIT Principles, thus introducing first-year students to international and comparative law.

Allan Farnsworth was a great scholar and teacher. He will be missed.

Assigning Blame for the Darfur Deadlock

by Julian Ku

I’ve blogged before suggesting that the U.N. was being an obstacle to more action to stop the atrocities in Darfur, but perhaps I was unfair to the UN. Its report on Darfur (which can be found here) found plenty of horrible atrocities (though not genocide) that it believes rises to the level of war crimes. More to the point, the report calls for the Security Council to refer the case to the ICC. In this way, the U.S. insistence on opposing an ICC referral seems to be the real obstacle to progress. That is certainly how media coverage from Reuters, the NYT and the BBC are portraying it. And there’s some truth to this. But even putting aside the U.S.’s opposition to the ICC (unreasonable here I believe), it has offered plausible arguments that an ad hoc tribunal would be better here. One of the best arguments is put forth by State Department spokesman Richard Boucher here (via Jurist):

The [UN Panel] in its reporting on these atrocities, details crimes that took place in 2001 and 2002. Those crimes predate the establishment of the International Criminal Court and therefore predate — that therefore the court wouldn’t have jurisdiction over those crimes. So you have all the crimes of 2001 and 2002 that couldn’t be handled by the International Criminal Court because of the way its statute reads, whereas a tribunal in Africa could deal with all the crimes that have been committed in Darfur from the beginning.

This makes sense to me and makes me wonder why the UN Panel recommended the ICC. But then, turning to the UN Panel report section explaining why it supports the ICC and not an ad hoc tribunal.

581. Furthermore, and importantly, the situation of Sudan is distinguishable in at least one respect from most situations where a special court has been created in the past. The impugned crimes are within the jurisdiction rationae temporis of the ICC, i.e. the crimes discussed in this Report were committed after 1 July 2002.

That’s not precisely true, as the UN’s own report details some alleged war crimes involving hundreds of people that occurred prior to 1 July 2002. It is true the majority of the crimes occurred after the 1 July 2002 date, but technically speaking, the UN Panel’s claim about its own findings is less accurate than the State Department’s. All of this suggests the UN Panel was playing a little politics, trying to force the U.S. to work with the ICC on a matter the U.S. obviously cares about more than other members of the Security Council.

What’s the lesson from all of this? None of the key actors here — not the U.S, not Europe, not even the UN’s Panel of experts — are above playing ICC politics with the Darfur question.

Judicial Second Guessing and the Guantanamo Detainee Decision

by Julian Ku

I can’t resist weighing in on the Guantanamo decision again, although I agree with Peggy’s analysis yesterday. I think the decision is a defeat for the government (per Andreas) and that it moves beyond existing precedent and certainly beyond past practice. That does not mean it will be reversed, but it is certainly pushing the envelope of judicial review of military activities overseas a great deal farther than one could have imagined just 3 years ago.

Under the court’s decision, a non-citizen on any U.S. military base or property worldwide could go to U.S. federal court to claim Fifth Amendment and/or Geneva Conventions rights to challenge the President’s factual determinations made pursuant to a statutory delegation by Congress.

Perhaps U.S. abuses in the war on terrorism require this shift from past practice, but we should recognize that we are indeed moving into a different world here.

The bulk of the decision relies on the due process clause of the Constitution (in the Fifth Amendment) to analyze and ultimately reject the adequacy of the Combatant Status Review Tribunals (CSRTs) created by the Defense Department after the Supreme Court’s decisions last year. The decision also relies, to a lesser degree, on the Geneva Convention’s requirement of a neutral tribunal for determining POW status. But, as Peggy points out, the rest of the claims, including violations under customary international law, were dumped. Which reminds us that judges will always prefer constitutional or treaty arguments to fuzzier customary international law arguments.

The Due Process analysis requires a couple of steps that may be attacked on appeal. First, it extends Due Process constitutional protections to Guantanamo Bay, whereas the Rasul decision last year in the Supreme Court relied on statutory interpretation to extend habeas jurisdiction. The question of what constitutional rights are provided to non-citizens outside of the U.S. is a murky and complicated one and the district court moved farther than previous doctrine has provided. The judge relies heavily on the idea that Guantanamo is essentially U.S. territory, but I’m not sure I see an easy distinction between Guantanamo and, say, Bagram Air Base in Afghanistan or any U.S. military base leased overseas. In any event, if I represented an Afghan or Iraqi detainee held on a U.S. military base anywhere in the world, this court’s reading of Rasul will permit me to claim, quite credibly, that I have due process rights. This may very well be a good idea, but it is also unprecedented. It is a sign of how far we have come that German detainees in Johnson v. Eisentrager were essentially laughed out of the Supreme Court, even after the war ended, whereas detainees in this ongoing conflict will get due process.

Second, although I am sympathetic to the Judge’s view that the CSRTs are fundamentally unfair because they fail to allow a detainee access to classified information to challenge their status, I’m not sure how to solve this problem. Obviously, there are reasons to classify such information, just as obviously, the detainee needs access. I’m not sure the judge’s solution (give it to the lawyers) is such a great one.

In any event, the judge also found that the definition of “enemy combatant” was overly broad because it was not limited to individuals “engaged in armed conflict” against the U.S. but included anyone associated with Al Qaeda and/or the Taliban. Again, this is a reasonable determination, but it is also a remarkable departure from past practice. FDR had no problem (and neither the WWII Supreme Court) with hanging 6 enemy combatants in 1944 (see Ex Parte Quirin) who had allegedly plotted to bomb the Long Island Railroad and no one even really bothered to define enemy combatant in those cases.

One more note: the court found that the Geneva Conventions are self-executing and required the President to provide a neutral and case-specific decisionmaker to allow Taliban individuals to seek POW status. No blanket declaration by the President as to the Taliban’s status sufficed. This sounds sensible, but usually courts give the President some deference in his interpretation of the Geneva Conventions. No deference was provided here. Moreover, the Court did not really grapple with the important question of self-execution. No doubt the Geneva Conventions are “self-executing” in the sense that they did not require any implementing legislation. But it is plausible, even likely, that the President and Senate believed that the treaty would be implemented entirely by the President and the military without any private right of action in the courts. No serious analysis of this question was undertaken here. And there might be good policy reasons for leaving that implementation to the President. One possibility: Country X, our opponent in the war and Geneva Convention signatory, declares that all U.S. soldiers are not POWs. Is it necessarily true that the President continues to be bound by the Geneva Convention and cannot issue a reciprocal blanket declaration?

In the end, I agree with Andreas that this is a defeat for the government. And I think the court revealed some damning evidence about possible torture and unfair treatment of Gitmo detainees. So I think the result in these cases are not the end of the world for the war on terrorism and quite possibly a necessary check on executive abuses. On the other hand, this decision shows us that we are heading toward a world of judicial review of presidential military determinations, even determinations made pursuant to a resolution by Congress authorizing him to use all necessary and appropriate military force. The fact that this delegation by Congress to the President involves the military and foreign affairs doesn’t matter as much as it would have to courts in the past.

This is a brave new world and I wonder if we are ready for its consequences.