Archive for
April, 2005

William Taft IV: Neocon Bully

by Julian Ku

Chris and I had a nice little exchange a few weeks ago about a speech made by former State Department Legal Adviser William Taft IV that criticized the U.S. detention policy in Guantanamo Bay. Today’s Guardian has a long expose alleging that Taft, and other U.S. lawyers, were involved in pressuring the UK’s attorney general to change his mind over his view of the legality of the Iraq War.

According to the Guardian, during the run-up to the Iraq War vote in the UK, the UK’s Attorney General Lord Goldsmith made a “secret visit” to the U.S. to meet with various “neocon U.S. lawyers” including Taft and his soon-to-be-successor John Bellinger (then with the National Security Adviser). After a series of “grueling” meetings, especially with Taft, Goldsmith returned to the UK with new confidence on the legality of the Iraq War.

The Guardian portrays this as nefarious, somehow, and brings in the reliable Prof. Phillipe Sands, Q.C. to sarcastically dismiss the involvement of U.S. lawyers:

How delightful that a Labour government should seek assistance from US lawyers so closely associated with neo-con efforts to destroy the international legal order.

I still think that this UK brouhaha over the Iraq War’s international legality is a bit overdone, and even the Guardian suggests that the political damage to Blair may be relatively slight. All that really happened is that Goldsmith had doubts about the international legality of the Iraq War, but that he ultimately concluded that there is a plausible argument for legality. He then went to DC, where U.S. lawyers, Taft most of all, apparently, convinced him that his initial conclusion was right and stronger than he had initially thought. This is hardly the stuff of neo-con conspiracy. After all, the U.S. had drafted the original version of the Security Council Resolution 1441 on which the U.S. was basing its legal authority.

Moreover, Sands (who appears to have contempt for all U.S. international lawyers who are to the right of, say, Harold Koh) is simply wrong to classify Taft as one of the “neo-con” lawyers seeking to “destroy the international legal order.” As I pointed out here, Taft was a leading voice against the U.S. policy on detentions at Guantanamo. Yet Taft still maintains today that the Iraq War was legal under the existing Security Council Resolutions. This suggests that Taft’s view is a good faith legal interpretation which cannot be simply dismissed as right-wing ravings by international lawyers simply because they disagree with it.

Finally, the Guardian blithely ignores the larger evidence of Goldsmith’s independence. The U.S. administration plainly believed that it had the legal authority under a theory of “pre-emptive” self defense to invade Iraq. Yet Goldsmith did not subscribe to this view and, despite his “grueling” sessions in Washington, he never did.

More on Getting Fired for Doing Your Job

by Chris Borgen

Scott Sullivan of Trans-Atlantic Assembly has a thoughtful post on the Bassiouni Affair, including a kicker on Taliban detainees in Guantanamo.

See also this BBC report, forwarded by Greg Fox.

Curtiss-Wright is Back: The President as the "Sole Organ of Foreign Affairs"

by Julian Ku

Why should an otherwise boring Supreme Court opinion Tuesday in Pasquantino v. U.S. on the applicability of federal “wire fraud” statute to activities involving avoidance of foreign tax laws (via SCOTUSBlog) affect our understanding of the President’s foreign relations powers?

Because Justice Thomas’ opinion for the Court casually cites the legendary United States v. Curtiss-Wright case for the proposition that the President is “sole organ of the federal government in the field of international relations”.

Although it may seem obvious, the Curtiss-Wright citation is actually quite controversial because it is often used to imply Presidential supremacy over all matters related to foreign affairs ranging from the interpretation of treaties and customary international law to, as we have seen recently, the intersection between state law and foreign policy.

As scholars have pointed out, the original source of the Curtiss-Wright “sole organ” language is John Marshall, but not when Marshall was Chief Justice and well after the Constitution was ratified. As such, it doesn’t actually reflect any evidence of the original intent of the Constitution’s framers. So by citing it as he does here, Justice Thomas is, to some degree, resurrected this broad view of Executive power, which hasn’t been cited in a majority opinion by the Court since the early 1980s.

In this case, Justice Thomas uses this citation to justify ignoring the traditional common law revenue rule that courts would adopt to avoid enforcing the foreign revenue laws. Because the executive branch has brought this prosecution, Justice Thomas argues, the Court can assume that “the Executive has assessed this prosecution’s impact on this Nation’s relationship with Canada, and concluded that it poses little danger of causing international friction.”

This seems right to me, but isn’t that always the case whenever a court considers a prosecution involving a foreign revenue law? Such a prosecution is always brought by some part of the executive branch. Does that automatically mean all foreign policy issues are solved?

In any case, Justice Thomas’ casual citation of the “sole organ” language suggests that there is still broad support on the Court for strong deference to the President for all matters involving foreign affairs. We’ve certainly seen this in deference to the President’s ability to preempt state law. We’ll see if this deference extends to, say Presidential orders implementing international court judgments (a la Medellin) or Presidential conduct of military commission trials (Hamdan v. Rumsfeld). I’m sure I’m reading too much into this, but the revival of Curtiss-Wright may be a clue of how these other cases will turn out.

WTO Watch: Just What We Need, Cheaper Sugar

by Julian Ku

The WTO Appellate Body confirmed a lower panel ruling that the EU’s system of subsidies for sugar producers violates WTO rules. The U.S. sugar subsidy system was similarly found in violation by a separate lower panel and this ruling suggests the U.S. will lose its appeal as well. Although it is unclear whether reducing the cost of say, Krispy Kremes, is really a good thing for America, see this release by Oxfam, the leading NGO critic of agricultural subsidies, for why this is very good for the developing world.

Will the U.S. and E.U. comply? These rulings really will test whether the WTO can overcome the opposition of very powerful domestic special interests.

Even More on the Legality of the Iraq War: A UK Lawyer’s Perspective

by Julian Ku

Euan Macdonald of the Transatlantic Assembly has a much more detailed discussion of the Goldsmith memo discussed below. He usefully notes that (1) Goldsmith plainly rejects the U.S. doctrine of preemptive self-defense, at least as articulated by the Bush Administration; and (2) the Goldsmith opinion supports Blair’s claim that he did have legal advice assuring him that the Iraq War would not violate international law. He also has a very interesting analysis on the possible political consequences of this memo’s release.

The Legality of the Iraq War (Part V): UK Govt’s Pre-War Legal Opinion Leaked

by Julian Ku

The Iraq War, and its legality (which I previously discussed here), continue to excite participants in the UK election campaign. Today, the long-sought legal opinion (or at least parts of it) from Lord Goldsmith, the UK Govt’s chief legal advisor, was leaked to the press. (UPDATE: the UK administration has released the full opinion here.)

From this side of the pond, it doesn’t look all that damaging. It reasonably suggests that the international legality of the Iraq War was plausible without a second Security Council Resolution but that seeking such a resolution was the most prudent course. Moreover, Lord Goldsmith further argues today that he received new facts of Iraqi breaches after he issued his preliminary memo. A court may have disagreed, but this advice was hardly irresponsible. (UPDATE: Some leading figures in the UK seem to feel differently, see this article in today’s Guardian calling Tony Blair a war criminal (via normblog)). Still, I’m not a Brit and it will be interesting to see what role the “legality” of the Iraq War, as opposed to those generally dissatisfied over the war itself, will play in the UK elections, which will be held next week.

Forget "The Interpreter," Sesame Street is Where It’s At

by Chris Borgen

With all due respect to the hand-wringing over whether “The Interpreter” is too pro-UN (an impossibility in America’s current political climate, but I digress), you guys have missed the boat. Witness this: I’m watching Sesame Street with my daughter this morning and the muppets are in a furor. They can’t agree on who should start singing the Alphabet Song. Zoe is angry because Elmo always wants to start it himself. (I think this is because Elmo has gotten arrogant with his riches from Tickle-Me-Elmo a few years ago. This wouldn’t have happened if Kermit was still around.)

Anyway, who steps in? Kofi Annan. Yes, I’m serious.

“Who are you,” some random muppet asks. “I am Kofi Annan, the Secretary General of the United Nations,” he explains. (My daughter just kept staring. Nobody said public diplomacy would be easy.)

After they tell Kofi what was up, he explains that “There is no problem; you simply need to cooperate. You can all sing the Alphabet Song together.” At which point the muppets do. They are so happy, they all want to congratulate each other and Kofi. More strife as they jostle to get to be the first to congratulate each other. (Note this sophisticated comment on the fact that institutional cooperation can lead to meta-conflicts arising from the very success of the institution. Robert Keohane and Stephen Krasner have each written about this. I bet they had a part in scripting the muppet exchange. Or maybe not.)

Then Telly Monster says “I know! Let’s do this the United Nations way!” (Conflict resolution via shared norms propagated by a common institution.)

And Elmo cries: “Yeah! Group hug!!!!” And all the muppets and Kofi Annan hug each other at the same time. (I assume any similarities to the Teletubbies’ use of “Big Hug” and/or to the Abu Ghraib “pile on” pictures was purely coincidental.)

So, guys, get with it. Sidney Pollack is fine but, really, you gotta catch’em in pre-school. But I might be reading too much into this…

Careers and Internships in International Law

by Chris Borgen

Jeff V., an incoming law student, posted a series of questions to a post of Julian’s which can be boiled down as follows (a) does the ICJ have U.S.-styled clerkships and (b) how can someone learn more about careers in international law? Here are some general responses.

First, concerning clerkships at the ICJ: the ICJ has not traditionally had U.S.-styled clerkships although they have begun experimenting with the idea in the last few years, in part spurred by NYU Law School. I think the clerks tended to be assigned to the ICJ as a whole (rather than to specific judges) and then particular judges could use clerks or not, to their own liking. As far as I understand it, this has meant in practice that judges from common law countries (particularly the U.S. and the U.K.) have used clerks a good amount but other judges less so. Although I don’t see anything currently listed on the ICJ website, anyone interested in clerking for the ICJ should check the site frequently as it does announce, at times, internships that are available. If I get more info on this, I will pass it along.

Besides the ICJ, you may want to think about clerking at the Iran-U.S. Claims Tribunal. Although the work of the tribunals winding down, it has used U.S. law clerks, usually after they have completed a federal court clerkship in the U.S.

As for criminal courts, the International Criminal Court has an internship/clerkship program. Similarly, both the Yugoslav and Rwandan Tribunals have employed recent law school graduates in a variety of capacities.

As for international law jobs more generally: the American Society of International Law has just published a new edition of its Guide to Careers in International Law. It is excellent. It has essays on different career paths and a list of organizations providing internships in international law. You can find more info on it at the ASIL’s website. By the way, a section of that website is also devoted to careers, so check it out. (Truth in advertising: I used to be the Director of Research and Outreach for the ASIL.)

The American Bar Association also has an excellent guide to careers in international law. Moreover, see the ABA’s international internship program.

Generally, I would advise getting involved in groups like the ASIL, the ABA Section on International Law and the American Branch of the International Law Association. (Of course, to answer a specific question of Jeff’s, you can also get involved with the American Constitution Society, the Federalist Society or whatever other interest groups you want.) The ASIL, the ABA, and the American Branch, however, are professional associations that include (relatively) broad ranges of views. I do think that of these the ASIL is particularly important, especially if your interest is public international law. In any case though, it is important to get involved and all of these organizations are enthusiastic about law students joining their ranks.

We’ll probably have further posts on advice for aspiring public and private international lawyers. I invite readers of Opinio Juris to post comments with any helpful thoughts they might have for anyone seeking employment in the field.

ICC Watch: An Ugandan NGO Tells the ICC to Butt Out

by Julian Ku

This interview with a local Ugandan NGO suggests the ICC should back out of its Ugandan investigation (an issue Peggy discussed in more detail here). Here’s a key exchange between a reporter from the East African and David Kaiza:

Does the ICC risk escalating the [Ugandan] war?

The LRA [the Ugandan rebel forces -ed.] are not the kind of people who will take threats lightly. They invariably take revenge on civilians. The impact of the ICC has been to heighten the violence. The problem with the ICC is that it has arrogated itself the responsibility to judge the process of the peace talks.
There have been accusations that although atrocities have also been committed by the UPDF, the ICC is going to investigate only the LRA.

Based on the field work we have done, there are those who want Kony forgiven. There are those who say that justice is when all the people who are in the LRA are brought to justice irrespective of whether they are at the top or not. They make reservations for the children who were abducted into the group. And they also think that those UPDF [Ugandan army] officers who committed crimes should be tried.

Sadly, the ICC is silent on what it would do with the UPDF. To make it worse, the ICC jurisdiction starts with July 2002, which means crimes committed before them cannot be investigated. People ask about the Mukura massacre. Who is going to try those NRA officers who committed that crime? [In 1989, NRA soldiers allegedly locked 69 people into a train wagon in Kumi district and set the wagon on fire].

This conflict has spanned two decades and a whole generation has been lost. I am not sure this is not the use of Africa as a guinea pig for the ICC.

I have no idea whether this is right, but I do know that the ICC may or may not have the legal authority to back out of this investigation. This means that, if the ICC really is preventing a peace, they may also have no way of backing out once they’ve gone in.

Maybe the ICJ is Useful After All

by Julian Ku

After bashing the ICJ a bit here, I thought it is only fair that I pass along ways that the ICJ can serve a useful though limited role in the settlement of international disputes.

First, Malaysia and Indonesia, last seen sending out naval ships to confront each other over disputed islands, appear willing to consider sending this dispute as well to the ICJ.

Second, Pakistan has suggested it will send one of its less nasty disputes with India over the Bagilar dam to the ICJ, although the World Bank is supposed to have appointed a neutral arbitrator. Later, Pakistan backed off this plan, but it still might happen.

Finally, Japan has suggested it might ask China to agree to resolution of some of its territorial disputes by the ICJ. This would be remarkable since neither Japan nor China have ever had a case before the ICJ.

One thing to keep in mind, though. If the ICJ gets involved in settling any of these disputes, it will almost certainly occur because the state parties agree to get the ICJ involved rather than as part of the ICJ’s compulsory jurisdiction (to which only Japan and Pakistan, I believe, have assented). So the ICJ’s usefulness, at least in these instances, really results from its operation as a “glorified arbitration tribunal” as Eric Posner has put it rather than as an independent free-standing international court.

Truth and Consequences in Afghanistan

by Chris Borgen

In a comment to Julian’s post on “The Interpreter,” Yuval Rubinstein provided a link to this article on Prof. Cherif Bassiouni of De Paul University Law School being pushed out of his job as the UN’s chief human rights investigator in Afghanistan by the U.S. government. (Thanks also to Greg Fox for separately e-mailing this article as well as the Newsday article quoted below.)

What did Bassiouni do? For one, he asked repeatedly to speak to detainees in Afghanistan, since he is, after all, supposed to assess (among other things) how they are being treated. He “lambasted” coalition nations for not allowing independent human rights monitors to come to their bases.

According to another report in Newsday, “Washington moved to scrap Bassiouni’s post partly because the human rights situation in Afghanistan is no longer troubling enough to require it, said a U.S. official who asked not to be named.”

Human rights are so good in Afghanistan that we don’t need to monitor them? You’d think that such a turn of events is something the Administration would want to trumpet. The reality, of course, is a bit different. Consider that even the Afghan government, the government that we’re supposedly trying to help with its human rights compliance, is being left in the dark. As Newsday reports:

“[T]he Afghan [government’s human rights] commission has cited U.S. forces as the frequent obstacle to its work. Afghan officials say they have trouble even getting appointments with U.S. officers to discuss human rights cases. Also, U.S. forces bar the Afghan commission from visiting their prisons. They admit only the International Committee of the Red Cross, which doesn’t publish its findings.

Human rights advocates say the U.S. policies seem to come primarily from the military rather than the State Department. The Pentagon has withheld the results of its own investigation into human rights violations at its bases in Afghanistan, despite an initial promise to reveal them.”

Once again: if the Washington official is correct that we wanted Bassiouni out because he’s not needed, then why are we keeping secret even our own reports we promised to release? The Newsday article continues:

“In countries with human rights problems as deep as Afghanistan’s, ‘the commission normally passes a resolution to condemn the abuses and names a ‘special rapporteur’ to keep investigating them,’ said Brad Adams, Asia director of the monitoring group Human Rights Watch. ‘But in Afghanistan, the U.S. has not wanted these mechanisms to come into play.’
Last year, Washington pressed the UN body to downgrade the post of rapporteur on Afghanistan to the lesser status of ‘independent expert.'”

The real issue, of course, is not human rights in Afghanistan, broadly speaking. The Independent article linked to above states that the US’s main gripe was not with human rights monitoring in Afghanistan in general, but rather the monitoring of US forces in regards to human rights. (Supposedly the US could support further UN monitoring as long as it didn’t apply to the US.)

So the Administration wants to give itself a pass until the situation is stabilized. This leaves a couple of questions: when was Afghanistan last stable and when do we think it will be? Assuming your answers are “a long time ago” and “not soon” then just what kind of message is the US sending with regards to the duties of occupying forces? Recall William Taft’s warning about going down this road.

And, more generally, the Administration needs to think seriously about its hostility towards the very institutions that can help stabilize Afghanistan, in this case the UN and the Afghan government’s own monitoring organs.

U.S. POWs Suit Against Iraq Denied Cert

by Julian Ku

According to the always reliable SCOTUSBlog, the Supreme Court denied certiorari today in Acree v. Iraq, a petition brought by U.S. POWs who had won a judgment against the Government of Iraq for mistreatment during the Gulf War. I blogged about this case, and Prof. John Norton Moore’s vehement appeal for Supreme Court cert, here.

Is Nicole Kidman a Flack for the U.N.?

by Julian Ku

According to this (admittedly right-wing) opinion piece, Nicole Kidman’s latest movie “The Interpreter” is a piece of shameless pro-UN, pro-ICC propaganda. Now that seems perfectly all right to me, as long as it’s a good movie. After all, movies like “Top Gun” and “Behind Enemy Lines” are basically advertisements for the U.S. Navy, so why can’t the U.N. give it a shot? The key question: is The Interpreter a good movie (I welcome comments)? It appears to be doing well, although I am fairly confident its success will have little to do with the American public’s feelings about the U.N. or ICC.

Can Money Trump Article II?

by Julian Ku

Although the U.S. has signed the Law of the Sea Treaty, the U.S. Senate has not yet ratified it and substantial conservative opposition to the treaty continues to loom (as I noted here). Interestingly, the Bush Administration is seeking congressional appropriations for the International Tribunal for the Law of the Sea and the Seabed Disputes Chamber of that Tribunal, even though the U.S. does not have any obligations to support those tribunals until the U.S. ratifies and accedes to the treaty. In other words, the Bush Administration is asking Congress to spend U.S. taxpayer money on international oganizations to which the U.S. does not even belong.

There are two possible explanations for this, one which is interesting as a political matter and the other which is interesting as a legal matter.

(1) The Bush Administration is confident that it will get Senate ratification of the treaty this year, and is prudently seeking appropriations to fund tribunals to which the U.S. will soon belong.

(2) The Bush Administration is prepared to act and participate in the Law of the Sea Treaty system, including its dispute resolution systems, even without Senate ratification. After all, any appropriations for the Law of the Sea tribunals would have to be approved, pursuant to Article I, by both houses of Congress and signed by the President into law. Would appropriating the funds for the tribunal qualify as Congressional approval for the U.S. to participate in the Law of the Sea, whether or not the Senate ever ratifies the treaty?

There is some precedent for bypassing the Senate in the approval of trade agreements, but never in the case of a treaty which has already been submitted to the Senate. Still, as a practical matter, if the Senate does not ever consider the Law of the Sea treaty, the Bush Administration has the constitutional authority to commit the U.S. to adhere to the Law of the Sea Treaty as a matter of presidential policy. Moreover, if Congress approved funding for the various international tribunals, the Administration could probably claim authority to submit to the jurisdiction of those tribunals. In which case most of the point of Article II’s requirement of advice and consent by 2/3 of the Senate could be avoided.

Now I think this is almost certainly not the plan of the Bush administration, but it is an interesting legal question that I had never thought of before, and which might be exploited by future presidents.

UN Reform: How about the ICJ?

by Julian Ku

While we are thinking about U.N. reform, maybe we should think about reforming or even gutting the U.N.’s chief judicial organ: the International Court of Justice.

The ICJ announced this week that it has undertaken certain re-shuffling of its chambers. This appears to be pretty minor stuff (I never even knew they had a chamber for “summary procedure”), but it does make me wonder whether the ICJ has considered more aggressive reorganization to make themselves a bit more efficient and effective. The measures the ICJ announced last July seem almost hilariously minor because they are all directed at state-parties rather than the Court itself.

After all, the ICJ has 15 judges and they hear a ridiculously few number of cases a year. If you look at their docket, for instance, there are currently 12 cases pending or under deliberation. But this way overstates the amount of work they are doing. Last year, they issued exactly three judgments, and one was an advisory judgment. They held public hearings in four cases. Whew! What a busy year!

And not all the blame goes to the states for not filing cases. A number of the ICJ’s pending decisions have been “pending” for over 5 years! (See here and here for examples). Now maybe the states themselves have held up the resolution of those cases, but this means that the ICJ’s current workload is even lighter than it appears. It appears, in fact, that there is a job out there with better hours than being a law professor. Where do I apply?

All of this suggests that the ICJ (like the UN Human Rights Commission (thanks to Peggy for pointing out my original post’s acronym of UNHCR is inaccurate)) is one of those fancy-sounding international institution that doesn’t really matter very much. As Prof. Eric Posner argues here, it mattered little in the past, and even less today. Trends in U.S. legal scholarship, especially the Anne-Marie Slaughter inspired movement to shift attention away from formal international institutions to “networks of global governance” reinforce this feeling that formal internationalism is increasingly irrelevant today, even among international legal scholars.

I suppose if this is true, then perhaps UN reform should focus on those institutions that appear to matter more (I trust Kenneth Anderson or Peggy will tell me which ones) and junk the ones that don’t seem to serve much useful purpose. Now that would be ambitious reform.

Ken Anderson on UN Reform

by Peggy McGuinness

Ken Anderson has a series of posts on UN reform here that are well worth reading and considering. (Kofi Annan lays out his “in Larger Freedom” agenda in the current Foreign Affairs here.) I plan to post some thoughts of my own later.

U.S. Defeats UN Human Rights Commission Resolution on Guantanamo

by Julian Ku

In a little noticed vote, the U.S. defeated a resolution (8-22) that would have required the U.N. Human Rights Commission to request the U.S. government establish and impartial and independent fact-finding investigation into the treatment of detainees at Guantanamo Bay (an account of the vote can be found here at the bottom of the release). China, Cuba, Sudan, and Zimbabwe were among the 8 countries voting for the resolution.

These sorts of silly votes reveal, I think, that the UNHCR is seen by most countries merely as a forum for diplomatic showmanship without any serious commitment to neutral legal principles of human rights. (which is why, as Peggy noted here, Kofi Annan has proposed scrapping its current form.) Even if you think the U.S. deserves some international condemnation for Guantanamo, it would be galling to join governments like China, Cuba, and Sudan in condemning the U.S. Those same countries had, at the very same session, blocked a resolution that would have condemned the Sudanese government over the atrocities in Darfur and forced through a milder resolution assigning no blame.

U.N. Committee Reviews International Anti-Terrorist Legal Framework

by Julian Ku

Committee II of the Eleventh United Nations Congress on Crime Prevention and Criminal Justice held a workshop yesterday to review the international anti-terrorist legal framework. As I’ve discussed here and here, this is a surprisingly underdeveloped area of international law given the fairly widespread consensus on the subject among most states.

Yoo and Waldron Debate Legal War on Terror

by Julian Ku

Columbia University’s American Constitution Society hosted a discussion between Professors John Yoo (a leading constitutional and foreign relations scholar) and Jeremy Waldron (a distinguished Kantian legal philosopher) on legal aspects of the war on terrorism today, especially torture. As usual, tireless bloggers from Ex Post have “liveblogged” the debate here.

Here are some of the highlights. The hardest question for Professor Waldron:

Question: Let’s assume a nuclear device is set to go off in an American city. Are we justified in using torture on 20 suspected terrorists to find out where it is before it kills thousands of people?

Waldron: It’s a bad and corrupt question, but I said I would answer it and I will. The answer that law and morality and religion requires that in no circumstances is torture to be used. The law is unambiguous, it’s a total prohibition. And for some of us, our morality dictates the same. We would take responsibility for the consequences of the bomb’s explosion, for the consequences of our morality.

The question is corrupt for a number of reasons. It is designed to bring the opponent of torture down to the level of the defenders of torture for a single case. The question is corrupt factually; it supposes that torture is capable of getting accurate information. The war on terror is a war of information and intelligence. To think primarily in terms of TV scenarios of massively important pieces of information that we know are there is not realistic. The nature of the relationship between torturer and victim means that the victim will tell the torturer what the torturer thinks he wants to know. Also, the question assumes that somehow we have the people who are trained to torture, yet who will do it only in this one case. There will be a cadre of torturers sitting around looking for work. There will be a culture of torture developed, changing the politics, training and discipline of the CIA and FBI. Everything we know about torture from the 20th century is that it grows out of control. We unleash everything depraved and sadistic in human affairs. We need to think about the trauma to the legal system, of having it be known that we have concocted room for torture. Everything that’s had its reference on respect for human dignity begins to totter and crumble under this response of torture.

The hardest question for Prof. Yoo (OK, he didn’t get any hard questions, but here is his most interesting response):

Question: Prof. Yoo, you stated that Congress has chosen not to take an absolutist position on torture, because the statute applies only overseas and to extreme and unusual cruelty. Could Congress regulate torture, and to what extent does the executive have un-reviewable authority?

Yoo: Congress made a distinction between torture and things short of torture, and Congress criminalized only the former. As an academic matter, Congress cannot criminalize the legitimate exercise of the president’s power. If the president ordered coercive interrogation, can Congress prohibit that? Congress cannot say that it’s a crime for the president to use a nuclear weapon or send armies to Europe. In extreme circumstances, the commander in chief power does extend so far as to be unreviewable. But the administration is not ordering or authorizing torture so this has not arisen yet.

Question by T. More: You didn’t engage Waldron’s discussion of morality.

Yoo: I view the function of a lawyer not to interject my own moral views into what the government should do. So I had to answer whether the GC applies, a distinct question from what we should do as a matter of policy. Applying the GC to detainees isn’t legally compelled. I don’t think limits on presidential power are compelled by treaty. A lot of these arguments you and Waldron make, I don’t disagree with them, but they should be considered separate from the legal analysis.

Japanophobia Strikes Shanghai: It’s Very Real

by Julian Ku

I plan to post quite a bit more on the continuing China-Japan row later this week, but I couldn’t resist passing along these remarkable pictures from a Chinese “BBS” list with pictures of the some recent anti-Japanese protests in Shanghai. Just keep scrolling down, even if you don’t read Chinese, you should easily get a sense of the rather intense nationalist atmosphere in China these days as might be seen in signs declaring FUCK YOU 狗日 (which I think means “Fuck You Japanese Dogs”).

The Bolton Nomination: Why Personality Matters in Diplomacy

by Peggy McGuinness

I have held back from blogging on the Bolton nomination in part because we learned precious little (as Julian noted here) at his confirmation hearing about what, precisely, Bush II plans to do at, with, or through the United Nations. I think there is plenty in Bolton’s prior writings and statements to demonstrate that he is a bad fit for the UN, but without knowing his marching orders from Bush or Secretary Rice, it is difficult to judge it on the merits. (For some observations on the marked absence of any substantive articulation of the direction of Bush II foreign policy, see this Washington Post op ed by Derek Chollet over at Democracy Arsenal.) At first, the allegations of Bolton’s imperious attitude and his “kiss up, kick down” approach to management struck me as pretty typical behavior of politically ambitious Washington functionaries of both parties, not necessarily grounds for disqualification of a presidential nominee, per se, and certainly not the kind of behavior your typical US Senator would recognize as problematic (uh, “glass houses” anyone?). But the latest round of allegations about Bolton’s poor personality and behavior has made even a few Republican Senators queasy and has prompted a two-week delay in the Senate vote. Whether it will ultimately doom his nomination remains to be seen, but it is starting to look like Bolton’s personality alone might make him the wrong man for the UN job.

Personality and character matter in diplomacy. Bolton wasn’t nominated to be Deputy Secretary of Agriculture; he is nominated to be the our country’s representative to the United Nations. Only the President and Secretary of State have a higher profile as the face and voice of US foreign policy around the world. Just as we worry about personal character (or at least should) in federal judges, we should worry about personal character in our high-profile diplomats.

I do not mean to suggest that blunt, aggressive behavior — or even behavior that other states perceive to be “obnoxious” — is alone a disqualifier. Indeed, recent history suggests that such traits can actual serve US interests well at the UN (see, e.g., Moynihan, Kirkpatrick, Albright, Holbrooke). My guess is that the Bush team recognized these traits in Bolton and the potential utility in deploying them to shake things up on the East River. But these current allegations go beyond blunt talk and gruff outbursts. Harassment of subordinates and opposite numbers is not only personally offensive, but also counterproductive to good policy. Alienating the internal team cuts off internal debate and discussion of policy options; alienating your counterparts limits options for cooperation. Both can lead to isolation of the principal, which leads to bad outcomes.

Consider the old adage that describes diplomacy as “the art of telling someone to go to hell in such a way that he looks forward to the trip.” Bolton seems to have mastered only the first part.

Weeramantry v. Goldsmith on International Law

by Julian Ku

Readers of this blog might be interested in this radio debate between Prof. Jack Goldsmith of Harvard and Judge Christopher Weeramantry, a former ICJ judge, on WBUR-Radio in Boston.

Spanish Court Convicts Argentine under Universal Jurisdiction

by Chris Borgen

Adolfo Scilingo, a former Argentine Naval officer, was convicted by a Spanish court for crimes against humanity. This is the first such conviction under universal jurisdicition is Spain (that is, at issue here is not any croime against Spansih citizens or against the laws of Spain, per se, but rather acts that any country should be able to prosecute under international law). A CNN report about the case is here. For more on universal jurisdiction, see this post.

Scilingo had taken part in activities conducted by the military junta that ruled Argentina in the 1970’s and early 1980’s; in particular, Scilingo admitted to taking about 30 opponents of the regime and tossing them to their deaths from airplanes. He had come to Spain willingly to testify and was subsequently held on the basis of his testimony. He has been sentenced to 640 years although, under Spansih law, he will serve no more than 30.

The investigating judge in this case is Baltazar Garzon, the same judge who investigated Chilean ex-President Augusto Pinochet. Garzon has indicted approximately 40 other memebers of the Argentine military; one, Ricardo Miguel Cavallo, is in Spansih custody.

ICC Watch: More Details on ICC-Uganda Understanding

by Julian Ku

This report gives a bit more detail to the non-agreement agreement between the ICC Prosecutor and the Ugandan leaders who visited the Hague last week. The statements by the ICC Prosecutor shows the limits of his discretion under the ICC Statute and, perhaps, why the ICC will always be a potential obstacle to settlement of an ongoing conflict. The ICC Prosecutor

As soon as there is a solution to end the violence and if the prosecution is not serving the interest of justice, then my duty is to stop investigation and prosecution…I will stop but I will not close…Timing is possible but immunity is not possible.

As a legal matter, I’m not so sure that the ICC Statute prohibits grants of immunity. Article 53(2)(c) appears to give the ICC Prosecutor a fair amount of discretion. It states that the ICC prosecutor may conclude there is not sufficient basis for a prosecution because:

A prosecution is not in the interests of justice, taking into account all the circumstances, including the gravity of the crime, the interests of victims and the age or infirmity of the alleged perpetrator, and his or her role in the alleged crime;

I’m no expert on the ICC Statute but interpreting this provision somewhat narrowly to exclude immunity seems about right. But such an interpretation is not obviously helpful toward settling the ongoing Ugandan civil war with the Lord’s Resistance Army because no matter what the Ugandan government does, the LRA leaders are going to be exposed to prosecution.

Japan v. China (cont’d): Japanese High Court Rejects Chinese Compensation Lawsuit

by Julian Ku

In a piece of terrible timing, the Tokyo High Court has denied the appeal of a group of 10 Chinese plaintiffs seeking compensation for Japanese WWII atrocities. This decision comes just as the Japanese Foreign Minister left China without having resolved rising tensions and as the stocks of Japanese companies doing business in China plummet. Although I can’t get access to the case (and can’t read Japanese anyway), reports suggest the Tokyo High Court held that China may have waived the rights of its nationals to seek damages in domestic courts through its peace treaty with Japan. If this is the correct reading of the Sino-Japanese Peace treaties, then the Chinese protestors might also direct a little bit of their anger toward their own government, which may have been complicit in letting the Japanese off the hook, and which is now cynically manipulating their anti-Japanese sentiment for their own purposes.

A Win for International Labor Rights? Nike Discloses Overseas Factories

by Peggy McGuinness

Last week, Nike disclosed a list of all 700 of its overseas production facilities — including factories in China, Thailand, Mexico and Turkey. It has also admitted that abusive working conditions have been uncovered in several Nike facilities. All of this comes as part of Nike’s settlement of the 1998 Kasky case alleging that Nike’s earlier defenses of its labor practices amounted to misrepresentation.

This is an important first in the struggle for transparency in international labor practices. Multinational corporations have generally been reluctant to disclose specific contracts with producers in the developing world under the guise of protecting trade secrets. What corporations really want to avoid is the harsh light of publicity about working conditions in their factories (health and safety problems, child labor, physical abuse, long working hours, less than subsistence wages) from trade unions and human rights NGOs. Nike, itself the subject of negative publicity campaigns and product boycotts in the 1990s because of conditions in its Asian factories (see, e.g., here and here), worked alongside union representatives and human rights activists in reaching the decision to disclose their supply chain.

Labor rights is an area corporations have typically preferred to keep “self-regulated” or subject only to guidelines, as opposed to binding treaties (see, e.g., the OECD Guidelines for MNEs here), on the ground that less regulation promotes competition and helps grow the economies of the labor-providing countries. The move by Nike, which alone employs over 650,000 contract workers around the world, may demonstrate that self-regulation, when combined with the pressure of litigation and far-reaching publicity campaigns, can work. Nike is clearly staking out the high ground among socially conscious consumers and interest groups in the US and Europe with this move; other corporations should follow. Transparency is good for everyone. Let’s see if conditions improve as a result.

Forgiveness: An Alternative to ICC Prosecution for Atrocities

by Peggy McGuinness

Among the many criticisms of the ICC, is the idea that prosecution is not always the appropriate means through which to address atrocities and heal the societal wounds imposed by conflict. The Milosevic case, which Julian discussed earlier here, is but one example of how prosecution — mired in technicalities, delayed for years and removed from the site of the crimes — plays, at best, only a small role in the reconciliation needed for reconstruction after war, and at worst, actually interferes with reconciliation. This article in today’s NY Times discusses efforts in Uganda to use traditional methods of forgiveness and reconciliation to welcome back into the community people who committed crimes (in some cases, were coerced to commit crimes at a young age) in the rebel war against the Museveni government. As Julian notes, the ICC has been consulting with the leaders in the northern region of Uganda, but is also on the verge of issuing arrest warrants against some of the rebels — a move which many in Uganda oppose. (Read this earlier joint statement by the Acholi leaders and the ICC carefully; the ICC has not agreed to recognize locally conferred “amnesties” — that’s where the two processes clash.) This excerpt from the NYT describes the Acholi forgiveness ceremony:

The other day, an assembly of Acholi chiefs put the notion of forgiveness into action. As they looked on, 28 young men and women who had recently defected from the rebels lined up according to rank on a hilltop overlooking this war-scared regional capital, with a one-legged lieutenant colonel in the lead and some adolescent privates bringing up the rear. They had killed and maimed together. They had raped and pillaged. One after the other, they stuck their bare right feet in a freshly cracked egg, with the lieutenant colonel, who lost his right leg to a bomb, inserting his right crutch in the egg instead. The egg symbolizes innocent life, according to local custom, and by dabbing themselves in it the killers are restoring themselves to the way they used to be.
Next, the former fighters brushed against the branch of a pobo tree, which symbolically cleansed them. By stepping over a pole, they were welcomed back into the community by Mr. Acana and the other chiefs. “I ask for your forgiveness,” said Charles Otim, 34, the rebel lieutenant colonel, who had been abducted by the rebels himself, at the age of 16, early in the war. “We have wronged you.”

Similar to the Gacaca process in Rwanda, and the earlier truth and reconciliation commissions in South Africa and El Salvador, this traditional ceremony requires a confession before the perpetrator is welcomed back. (I recommend the documentary film “Gacaca” for an excellent overview of the Gacaca process and the challenges faced in reconstructing Rwandan society post-genocide.) The power of apology and forgiveness in the process of reconciliation and dispute resolution has been the subject of scholarship in both the domestic (see this study by my colleague Jennifer Robbennolt on the role of apology in litigation settlement) and international contexts. Martha Minnow’s 1999 book “Between Vengeance and Forgiveness” is a great place to start exploring the complexity of building a society in the wake of mass violence. Law and legal prosecution have their place, but it’s important that supporters of the ICC don’t let their enthusiasm for the institution get in the way of real reconciliation and reconstruction.

A U.N. Treaty We Can All Support

by Julian Ku

The General Assembly endorsed by consensus Friday the International Convention on the Suppression of Acts of Nuclear Terrorism . The treaty sets up useful legal definitions of nuclear materials and imposes obligations on signatories to pass laws outlawing nuclear terrorism, to cooperate in exchange of information on terrorists, and to prosecute or extradite alleged nuclear terrorists (but not extradition to an international court). The U.S. is a big winner, as this State Department release suggests. The product of nine years of deliberation and a breakthrough was finally reached when it was agreed that military forces using nuclear weapons will not fall within the treaty’s cope. I presume this no-brainer treaty will sail through the U.S. Senate.

Milosevic v. the ICTY: Milosevic is Winning

by Julian Ku

I didn’t notice until today this devastating WSJ article ($) about the interminable Milosevic trial at the International Tribunal for the Former Yugoslavia in the Hague. (“ICTY”). Since it is behind a firewall, let me excerpt the highlights and hope the WSJ puts it on their free website eventually.

As it enters its fourth year, the world’s biggest war crimes case since Nuremberg has become too long, too complex and simply too boring for most to follow. The end is not yet in sight and, judges on his panel openly fear, might never come. Some people at the U.N. tribunal fear that the Milosevic case might even succeed in destroying this court with the sheer weight of its tedium.

Unsurprisingly, there is a whiff of desperation about it all. The international media have long skipped town, leaving only a handful of Balkan journalists and international NGOs. Mr. Milosevic has already managed to outlive one judge on his panel. Even if the case finishes within the coming year as the original schedule foresees, it will still have roughly matched the combined length of the three wars in which the alleged crimes were committed.

I sat in on a few hours of the Milosevic trial (nearly 3 years ago) and it was impossible to stay awake even then (even in translation). So I know what the writer is talking about. To be fair, the writer is still optimistic about international criminal justice in general. Still, if Milosevic is eventually acquitted, this would be a major body blow to the burgeoning international criminal justice movement.

ICC Watch: Prosecutor, Northern Ugandan Leaders Issue Joint Statement

by Julian Ku

After several days of meetings, the ICC Prosecutor and Northern Ugandan leaders have issued a joint statement pledging to work together in the prosecution of alleged war crimes while at the same time trying to work out a peace agreement. The statement says absolutely nothing of importance and does not, for instance, require the ICC Prosecutor to limit his investigations whatsover. But you have to give the ICC Prosecutor credit for making the effort to consult with local leaders at a very delicate time (for more discussion of the ICC’s dealings with Uganda, see here).

CAFTA Wars: Is the Battle Over Already?

by Julian Ku

DR-CAFTA, the Dominican Republic- Central American Free Trade Agreement, is facing rough waters in its first Senate hearing, according to this (admittedly anti-CAFTA) report. Opposition is particularly strong in the farm-states, where CAFTA would likely have its greatest effect. Key senators are already suggesting it is heading for defeat.

I am generally supportive of free trade on policy grounds and therefore of these sorts of agreements. But it will be interesting to see if conservatives who support CAFTA pull out the internationalist arguments to defend it, or if liberals switch to nationalist arguments in their campaign to oppose it.

WTO Watch: the EU’s Candidate Pulls into the Lead

by Julian Ku

In the not very exciting race to be the next WTO Director-General, ex-EU Trade Commissioner Pascal Lamy has pulled into the lead, according to this report. Brazil’s candidate is apparently out of the running and Lamy has more support than the remaining two candidates (from Mauritius and Uruguay). Does any of this matter? It is hard to say, since the WTO chief’s power is (as a formal matter) nearly non-existent. But his informal power could be significant, especially given his background as the EU’s chief trade negotiator. No word on which way the U.S. will go, but I wouldn’t be surprised if it throws its support to Lamy because, at least in WTO negotiations, the U.S. and the E.U. are usually on the same side of most issues.

Asia and International Institutions

by Chris Borgen

The stability of East Asia is a crucial problem for American (and the world’s) security. Julian’s post highlights what I find to be an ambivalence of many critics of international institutions: on the one hand they note that some country or region has “refused to jump on the internationalist bandwagon” but, on the other hand, they implicitly recognize that the situation might be better if the state or region used international regimes as a tool. The refusal to use international institutions, though, is viewed as “a failure of internationalism” rather than the failure of the state to use the tool it needs. This is like blaming a saw when a carpenter decides to use a screwdriver to try to cut a piece of wood.

I find this argument particularly perplexing given Julian’s recent praise of the work of Eric Posner and Jack Goldsmith, who argue that what we think of as international law and institutions are essentially the self-interested choices of states. If that’s the case, then states choose when to build international institutions and when not to. Asia’s choice not to deepen its international institutions is not some failure of some independent force out there called “internationalism;” it is simply the choice (and I would say the poor choice) of certain sovereign states.

Julian sets up the classic straw man argument that the choice states face is between European Union-styled supranationality or nothing. He ignores the variety of other international institutional models that exist including the Organization of American States, the Economic Community of West African States, and NAFTA, to name a few. He also ignores that it is those intergovernmental models short of EU-styled supranationality that are crucial for security-building

Julian misplaces credit concerning the key guarantors of European security in the supranational human rights tribunals. Although many have argued that these tribunals have helped deepen the respect of human rights in Europe, I have never seen it argued that these institutions were the foundation of European security. Rather, security regimes (NATO but also to a lesser extent the old Western European Union) and economic regimes (the European Coal and Steel Community and later the EC ) are the cornerstones. The EC and NATO in Europe, the OAS in the western hemisphere (and NAFTA in North American and Mercosur in South America) and the Organization of African Unity (supplemented by ECOWAS in West Africa) have historically provided means of intergovernmental discussion, norm setting, information sharing and the resolution of grievances. All the good stuff Posner and Goldsmith praise about the function of international institutions. The lack of similar institutions in Asia is what is troubling.

From an international institutions perspective, the concern is less that there isn’t an Asian Court of Human Rights, than (a) there isn’t a good forum for intergovernmental discussion and settlement of grievances (like the EC or the OAS) and (b) nor are there deep security arrangements (like NATO). APEC was supposed to be the first and ASEAN the latter; neither has evolved quite has hoped and have remained relatively shallow (especially APEC). Note, I am talking about the shallowness of Asian institutions not in relation to the supranational EU as we now see it, but in relation to the largely intergovernmental EC of the 1950’s. That was when institutionalism secured the peace in Europe.

Asia needs similar institutions. The American security umbrella alone can’t do it. Not now, as Yuval Rubinstein argues and not tomorrow, as I have argued (among many others). That is why regime building and deepening in Asia has been a consistent foreign policy goals of American Presidents for decades (from ASEAN to APEC, not to mention the Asian Development Bank).

The construction of international security and economic regimes is the right tool for Asia’s problems. If they choose not to use it, it’s their right. It’s just not a rational choice.

China, Japan, and the Failure of Internationalism

by Julian Ku

The seemingly minor disputes between Japan and China that I noted some time ago here have continued to fester. This past week, thousands of Chinese marched in sometimes violent (but state-organized) protests against Japan’s attempt to gain permanent membership on the United Nations Security Council and Japanese history textbooks that have whitewashed Japanese atrocities during WWII (indeed, Japan has run into almost identical disputes with South Korea, as I noted here). Meanwhile, normally deferential Japan continues to provoke Chinese ire by allowing undersea gas drilling in disputed territories and denouncing China for violating the Law of the Sea Treaty in its own drilling.

Although today it looks like a happy-go-lucky region benefiting from stupendous economic growth, Asia, and East Asia in particular, may be the most dangerous place in the world. It is full of territorial disputes over oil-rich undersea territories. Various countries are poised to acquire nuclear arms in reaction to North Korea’s continued defiance of the U.S. China and South Korea still harbor serious (and justifiable) anger at Japan over WWII atrocities and everybody is worrying about a strong China (and a weak Taiwan). What makes this situation in Asia so dangerous is that all of these lurking disputes could spark military conflicts between wealthy and extremely well-armed states.

As Francis Fukuyama notes, Asia lacks a serious multilateral organization in which all the countries in the region can work out and resolve the various territorial disputes or provide compensation or punishment for damages and atrocities suffered during WWII. Asian countries have no equivalent of the European Court of Justice or the European Court of Human Rights and have rarely (or never) resorted to the International Court of Justice for resolution of disputes. Indeed, the refusal of Asia to jump on the internationalist bandwagon suggests that internationalist Europe is the exception rather than the rule.

So internationalism and international law can’t and won’t save Asia from its future conflicts. In fact, like Europe, it is arguable that U.S. political, economic, and military dominance has up to now been the main stabilizing factor in the region. As this dominance fades, it is up to good-old-fashioned balance-of-power politics by the major actors in the region, including the U.S., to find a way to head off future conflicts that would make us pine for the days when all we had to worry about were international terrorists and the war in Iraq.

The Non-Debate on Bolton

by Julian Ku

David Brooks defends Bolton’s nomination today on very straightforward grounds: Bolton is opposed to creeping global governance in the form of the ICC and a strong U.N. Here’s an excerpt:

They know we’re not close to a global version of the European superstate. So they are content to champion creeping institutions like the International Criminal Court. They treat U.N. General Assembly resolutions as an emerging body of international law. They seek to foment a social atmosphere in which positions taken by multilateral organizations are deemed to have more “legitimacy” than positions taken by democratic nations.

John Bolton is just the guy to explain why this vaporous global-governance notion is a dangerous illusion, and that we Americans, like most other peoples, will never accept it.

It is interesting that critics of Bolton have refused largely to attack him on policy grounds by, say, criticizing his opposition to the ICC, as Bill Kristol notes here, even though this seems to be the real basis for opposition. Instead, the critics have been scrounging up so-called Republicans like Carl Ford (who donate to Kerry and work for Democrats) to dish dirt on Bolton’s management style. This is a classic Washington tactic but it also reveals how opponents of Bolton have been largely unable (or unwilling) to gain traction by exposing his supposedly far-right views.

Inside a Guantanamo Detainee Hearing

by Julian Ku

A reporter from the BBC reports here on his observation of a hearing conducted by an Administrative Review Board for one of the detainees held by the U.S. at Guantanamo Bay. As I have discussed in the past, elements of the U.S. detention policy, including its process for reviewing the status of detainees is being challenged in U.S. Courts.

This is the famously anti-American BBC, after all, so the tone of the report is certainly critical of the U.S. and sympathetic toward the detainee. Still, it is still worth reading. Some highlights:

Describing the Administrative Review Board

Three military officers sat on the board. None of them were lawyers.

Their job, as they described it, was to review the evidence and come to a recommendation as to whether the detainee constituted a continued threat to the US and should be further detained, or whether he should be transferred to his home country, or released.

Procedural Aspects of Hearing

At the detainee’s side was an “Assisting Military Officer”. His role was to assist the detainee in presenting his case, but he appeared well short of legal representation.

Also present was a “Designated Military Officer”, whose role was to present the evidence. He did not resemble a prosecutor. There was no adversarial argument.

Use of Classified Evidence

The officers went into a classified session during which they would hear secret evidence.
And the detainee would never know what secret evidence against him existed.

Final Observations

We were struck by the cursory nature of the questioning, and the absence of an attempt to reconcile conflicting claims as to what the young, sullen detainee had actually done.

One of the problems with the BBC reporters’ implicit criticisms, of course, is that the hearing he observed (as he admits) is not supposed to be a legal hearing to determine innocence or guilt. The ARB, like the Combatant Status Review Tribunals, are supposed to make basic administrative determinations. Only the military commissions (being challenged as I discussed here) are anything like a criminal trial in that they will adjudge guilt and exact punishment. So it is not shocking that detainees have no lawyers, that none of the board members are lawyers, and that secret evidence is being used. Non-POW detainees in previous U.S. military conflicts were unlikely to have received any better treatment. Nor would other countries have acted differently in their own conflicts (just ask those Algerians detained by French authorities during the Algerian war). And few if any of them ever managed to get the type of treaty, international law, or constitutional arguments that the Guantanamo detainees have made before a federal court (As I discuss here).

This is not to say, however, that the circumstances of this current war might not require new standards and new methods. In the past, the enemy government would protect the rights of its nationals being detained by U.S. authorities (essentially through its reciprocal treatment of U.S. detainees) and peace would result in the exchange and release of prisoners. But there is no official “enemy” government here and there is no one to make peace with or even negotiate with. So perhaps the situation may call for new measures to deal with this reality. I am certainly open to this view.

But critics have rarely been tempered in their denunciation of the Guantanamo Bay procedures preferring instead to declare the whole thing “lawless.” These critics need to remember that their efforts to apply civilian legal processes (the idea of due process, the right to a hearing, legal representation, etc) to the detention of enemy combatants in the war on terror represents a departure, and not conformity with, the traditional understanding of how the military handles wartime detentions of non-POWs. Even the classification of POWs or the mistreatment of POWs has rarely been the subject of civilian court review. Such a departure from tradition and modification of the laws of war might be justified given the unusual circumstances of the war on terror, but it might not be. (Indeed, as Kenneth Anderson points out here, many of the groups claiming the right to “write” the new laws of war are themselves self-interested advocacy groups who don’t have any more authority, and probably less, than the U.S. military.)

This is why I view many of the issues surrounding the Guantanamo detentions less as a legal question than a difficult question of policy. Introducing civilian judicial review of detention of foreign combatants, POWs or not, is a remarkable shift in U.S. jurisprudence and our understanding of the role of federal courts in supervising the military. It may be the right thing to do given the unusual nature of this war, but I think it is a much more difficult question than critics have suggested.

ICRC as Proxy in Customary International Humanitarian Law

by Peggy McGuinness

Chris’s and Ken Anderson’s posts raise some fascinating questions about the ICRC and its recently promulgated rules of customary international humanitarian law. I agree with Ken that — even accepting as true ICRC’s bias against the US — Rivkin and and Casey go too far in suggesting that the US rethink its generous support of ICRC. ICRC does much more than simply report on compliance with laws of war. Their humanitarian operations in war zones and areas hit by natural disasters are effective, efficient and very much needed. Let me suggest that perhaps the ICRC has another role to play in coordinating the codification of rules governing war: that of proxy for non-state parties affected by war. Of course the US is the most active military in the world and what it knows of warfare and military necessity are relevant to defining emerging norms. But the rules are rules precisely to protect the least powerful actors from the most powerful. In the case of war, those are the individual civilians (and the NGOs that serve them) who find themselves displaced, homeless, vulnerable to exploitation, death by disease and other degradations. It is this constituency that needs the most protection — from state parties, insurgent groups, terrorists, etc. — during conflict. To use a very coarse analogy from the domestic context, we don’t let police forces — on their own — write the rules governing appropriate use of physical force during an arrest. We take into account what a police officer (taking into account available technology) would deem reasonable in light of the surrounding circumstances. But we don’t give them carte blanche.

But Ken and Chris raise a good question about CIL generally: can you claim “custom” out of treaties or protocols that one state, the largest and militarily most active state, has refused to sign? I agree with Ken that the rules of war have lost their element of reciprocity when custom can be declared from treaties without regard to the signatories. Part of the problem may be that modern warfare is much messier than the past. Fast-changing military and information technology blur the distinction between military and civilian targets, combatants and non-combatants, terrorists and insurgents, POWs and hostages. The customary laws governing warfare are by definition backward-looking, assessing the practice of parties in past conflicts to determine what the rules should be in future conflicts. But as Greg Fox points out, the US military much prefers these backward-looking rules and fitting them to new circumstances than no rules at all.

Bolton: Soft on the U.N., Law of the Sea Supporter

by Julian Ku

Despite relentless attacks from establishment media like the NYT (who called him the “worst of some bad nominees”), it looks like John Bolton will be confirmed as U.N. Ambassador. Curiously, very few of the news reports of his testimony yesterday highlighted the ways in which this so-called hardliner has adopted pro-internationalists positions. The FT is the only account I’ve seen that points out that:

But Mr Bolton professed considerably more sympathy for UN affairs than some critics may had feared.

He argued in favour of paying the US’s financial dues and said he supported many international legal instruments, including the Law of the Sea, and believed Kofi Annan, UN secretary-general, should stay on.

Mr Bolton even acknowledged, somewhat to the concern of Norm Coleman, the Republican senator who has called for Mr Annan’s resignation, that member states bore as much, if not more, responsibility as the secretariat for failures, as in the oil-for-food programme.

“We must never lose sight of the reality that ultimately it is member governments that must take responsibility for the UN’s actions, whether they be successes or failures,” said Mr Bolton.

This sounds very reasonable to me, and I don’t understand why that would be very unreasonable to any progressive internationalist-types, who should be thrilled that the administration’s so-called hardliner far-right diplomat is stuck with a number of very pro-internationalist positions that he can’t really back away from. The yelling here should not be on the pro-internationalist left, but on the anti-internationalist right.

Kenneth Anderson on Who’s Writing the Laws of Armed Conflict

by Chris Borgen

Kenneth Anderson has some thought-provoking comments on the evolution of the customary norms of armed conflict here, as part of a longer post on an article by David Rivkin and Lee Casey on the ICRC’s views. (I should state that, generally speaking, I find Rivkin and Casey’s essays to be quite unpersuasive and a little paranoid. This David Rivkin, by the way, is not to be confused with David Rivkin from Debevoise, one of the deans of international arbitration.)

The gist of Ken’s analysis is that those who aren’t really involved in extensive military deployments (European states and NGO’s) are particularly involved in defining the evolving customary norms on armed conflict although they don’t have a realistic appreciation of the modern realities of military necessity. I haven’t read the ICRC’s recently released three volume compendium on the customary international laws of war so I can’t comment directly on its substance. Ken’s critique, though, points out the ongoing problems of defining customary international law in a practicably workable fashion, an issue which every international lawyer of any political stripe should face head-on

Customary international law is a consistent practice by a relvant group of states based on a sense of legal obligation that becomes legally binding on all states that do not object to the norm. Ken’s post goes to the definitional issue of which states should be considered “relevant” states in defining a customary norm. A question I will simply leave open is whether the U.S. should essentially be considered an “indispensible party” for the evolution of customary norms of armed conflict as it has the largest international deployment of troops, etc. That is, if the U.S. doesn’t explicitly sign on, not only is it not bound by the alleged customary norm, but you can’t even really say such a norm has risen to the level of being customary international law (as you don’t have the relevant set of states practicing in this way). I don’t know if I agree with this idea, but I’ll toss it out as an idea and see if Julian, Peggy, Ken, or anyone else has any thoughts on this…

One other thing: Ken had spoken at the recent ASIL Annual Meeting and, if I remember correctly, he (or someone else on his panel) had made a related point to this post but about treaties, as opposed to customary international law: parties that tend to negotiate treaties on the laws of armed conflict tend not to be the one’s taht actually fight with each other. In other words, the Europeans and Americans coming to agreement on laws of armed conflict is all well and good but next war we fight is not likely to be with France, no matter how much they annoy us at times (and we, them).

This is a topic for another post, but it does lead one to think about how we can get the laws of armed conflict to evolve in this environment. For two takes on this, see Thomas Barnett’s essay in Wired and Martin van Creveld’s book, The Transformation of War.

Both observations, the one on customary law and the one on treaty law, are sobering thoughts and Anderson’s blog is well worth the read to learn more about law and war. At the heart of this is my belief that usable laws of armed conflict are needed now, more than ever. The question is whether and how they need to evolve to take into account the changing nature of conflict.

Annan Outlines A New UN Human Rights Council

by Peggy McGuinness

In a speech last Thursday to the UN HR Commission, Kofi Annan laid out his vision for a new Human Rights Council to replace the very Commission he was addressing. He noted that the Commission’s ability to perform the tasks for which it was formed has been both overtaken by new challenges and by the politicization and selectivity of its work. He proposes scrapping it in favor of a Human Rights Council, whose membership would be elected by at least 2/3 of the General Assembly. Only those states that themselves meet minimal standards of accountability for human rights violations would qualify for membership. In other words, no more embarassments whereby Libya and Sudan have gained seats on the current HR Commission. Moreover, Annan sees it as a chamber that would have broad authority for peer review — evaluating the performance of ALL states against their obligations under the main human rights instruments. I am not one to normally argue that change for the sake of change is a good thing. But it is hard to imagine that this new Council will be worse than the Commission. (See my earlier discussions here and here.) As the proposal develops and more commentary is available, I will keep you all posted.

Domestic Appeasement; Foreign Schizophrenia

by Chris Borgen

Julian’s point is well taken; what we may be seeing in the Bush administration is a shift to a more realistic foreign policy and less a continuation of the schizophrenia of the first term. I hope that is correct. But by the Administration’s attempts to appease the fringe elements in its party, I fear that it is not.

I accept (and have a nod in my original post) that the general view is that the Bush foreign policy has been consistent to the point of being almost wholly focused on “the axis of evil.” My point is that so much commentary on Bush’s focus on certain ends has obscured the rather wide policy swings on the issue of means. That is where we have had the most significant rifts with our allies: not over the issue of whether Iraq or Iran or North Korea is a problem, but on the question of how to handle these problems. This is more than simply applying international law because we want to make nice with our allies (and you know Taft’s argument is not that, Julian), it is about using international law because it provides a more effective tool for our policy ends than the “go it alone” approach. See here and here for two discussions.

I think that the Administration’s hostility to international law and institutions is driven more by the right wing’s irrational fears than by an appreciation of realistic foreign policy making. His father, remember, was a master of using international institutions to forward US policy interests. His father also lost an election when the Republican Party right wing jumped ship. (Anger over not flouting the UN and driving on to Baghdad and anger over NAFTA, to give two examples, played a role in this.)

In the end, Julian, your post doesn’t seem to defend foreign policy schizophrenia so much as hope that what we are seeing is less schizophrenia and more a shift to a thoughtful strategy of give-and-take. I would ask, by the way, what is to be gained by some of this give-and-take in practice. Why withdraw consular relations jurisdiction after we tell courts to follow the ICJ (except for the fact that we feared we were about to lose a case and we didn’t want to play anymore)? Why take the Law of Sea Treaty—supported by our military, our industry, the Senate Foreign Relations Committee, and Democrats—and support it one minute, then let it dangle precipitously (except for the fact that some far right idealogues have drawn sci-fi scenarios of it being an attempt at world government)? Why twist our stance on the applicability of the Geneva Conventions to the point that no-one seems to actually know what our point of view is anymore?

Give-and-take as a diplomatic strategy works when you use it to send a coherent signal; too often, though, the Bush team is just making noise.

And the far right likes what it’s hearing.

A Defense of Foreign Policy Schizophrenia

by Julian Ku

Chris makes some very good points about the Bush Administration’s foreign policy “schizophrenia” and listing the nomination of Bolton as symptomatic of the problem. Not surprisingly, I disagree. I think this “schizoprenia” is actually a good thing.

I do agree that there is some back-and-forth in the Bush Administration’s foreign policy recently, but I actually think this reflects an increasing sophistication rather than increasing confusion. Indeed, the main complaint up to now with the current administration has been that it has been way too consistent in the pursuit of single-track ideals and policies to get to those ideals without taking into account the complexity of the real world they are facing. I was reminded of this by the rolled eyes from some audience members during ASIL meeting to Secretary Rice’s admittedly somewhat trite invocation of “freedom and democracy” as the primary goals of U.S. foreign policy.

I take this is also the standard criticism of the U.S. insistence on denying the Geneva Convention protections to Al Qaeda members. This approach is hurting you with your allies and with your efforts to win over the Arab world so why not apply the GC and other protections since it won’t really hamper you very much anyway (that was the Taft argument that Chris praises here)?

It seems that Bush II (or perhaps Bush III?) is beginning to adopt a more pragmatic give-and-take approach. Give (say the Darfur referral to the ICC) but make sure you “take” (say Wolfowitz at the World Bank). Support the U.N. generally (notice how Bush has not called for Annan to step down) but keep the pressure on for U.N. reform (that would be putting Bolton there to watch over them, see the WSJ’s explanation of this strategy). Comply with the ICJ order, but withdraw from the Optional Protocol. It seems that if a President named something other than Bush was engaged in this sophisticated approach, the over-educated folks at places like the Council of Foreign Relations and ASIL would be nodding approvingly over their glasses of chardonnay.

On the flip side, although I respect very much what the folks at places like Democracy Arsenal are trying to do, I think there is as much “schizophrenia” in foreign policy on the left these days, if not more. What exactly do progressives stand for in foreign policy today? More support for international law and institutions? But what about that pesky WTO and NAFTA? Reduction in the use of U.S. military force abroad? But what about humanitarian interventions? Admittedly, these are difficult questions. But both sides have to deal with them. And when President Hillary comes into office (a reality that I fear lies in our very near future), I have no doubt that the complaints about her “foreign policy schizophrenia” will erupt nearly immediately.

WTO Watch: US Strikes Jackpot

by Julian Ku

The WTO’s Appellate Body ruled yesterday that most U.S. laws (including state laws) restricting internet gambling do not violate WTO obligations (The decision can be found here). This reversed a Panel Report in favor of Antigua and Barbados alleging that U.S. restrictions on offshore internet gambling was discriminatory against their internet gambling industries. This is a complicated issue, and some U.S. laws with respect to horse racing will probably still be found in violation, but the upshot is that the U.S. wins big by getting the WTO to agree to a “public morals” exemption for its internet gambling regulations.

To me, though, what is interesting here is what would have happened if the Appellate Body upheld the original Panel Report against the U.S. Would the U.S. really have complied (by changing at least three federal statutes and six state laws) amid threat of trade sanctions imposed by Antigua and Barbados? It may be that other countries (like the EU) would jump on the bandwagon, but if not, I somehow doubt the U.S. would have ever complied with a negative WTO ruling in this case.

Can a Court Second-Guess the President’s Conduct of Military Commission Trials?

by Julian Ku

Today the D.C. Circuit Court of Appeals heard arguments in Hamdan v. Rumsfeld, a case involving a challenge to the military commission trials of detainees at Guantanamo Bay. This is an enormously complicated case involving questions concerning the judicial enforceability of treaties such as the Geneva Convention, the President’s power to interpret and apply those treaties, and the President’s authority under federal law to try enemy combatants in military commissions. ( For Hamdan’s brief, see here.)

One of Hamdan’s attorneys is Professor Neal Katyal of Georgetown, an academic superstar who can also write a great brief. (For the U.S. government’s less impressive but still good briefs, see here and here.) He has also gathered a wide variety of amicus briefs (see here for his collection briefs filed in Hamdan and here for the district court’s decision.

Still, despite Kaytal’s briefing, I don’t think his client is going to prevail here. He has a difficult case to make: that (1) the G Conventions are judicially enforceable; and (2) that even if they are, the President’s interpretation of them is so wrong that the court can reverse his judgment on a matter that implicates foreign policy.

The strongest argument, I think, is not based on treaties or customary international law but statutory: that federal law requires the President to give Hamdan the right to be present at his commission trial. Unfortunately, the D.C. Circuit panel today was somewhat skeptical of this argument, pointing out that the right to be present is hardly a fundamental feature of military trials worldwide. This means that Hamdan might indeed lose here, although given the litigation firepower involved here and the importance of the case, everyone expects that the Supreme Court will eventually hear this case. So stay tuned…

Foreign Policy Schizophrenia

by Chris Borgen

Peggy’s post and Julian’s comment to her post set out some good arguments as to why John Bolton is or is not the right person to send to the UN. (Democracy Arsenal, by the way, has the top ten reasons why John Bolton should not be confirmed. Also note this post.) Regardless, I think there is little doubt that Bolton will be easily confirmed. That being said, I do wonder whether his confirmation, particularly in light of the rest of the second term foreign policy team, will continue the foreign policy schizophrenia that has dogged the Bush Presidency.

I know, many people would say that the Bush foreign policy has been quite coherent: pursuit of terrorists, pursuit of rogue states, skepticism (or outright hostility) towards international organizations and multilateralism, etc. But I think this misses some of the most important divergences within the Bush team as well as policy flips in recent years. The contentious issues have not always been what goals to pursue, but how to pursue them. (Though defining foreign pilicy goals has been contentious as well.)

At times there seems to be a real tug-of-war between moderate views (treat with comity ICJ judgments on the Vienna Convention on Consular Relations; let’s get the Law of the Sea Treaty ratified) and knee-jerk anti-internationalism (get out of the Consular Relations Optional Protocol! Beware the Law of the Sea Treaty!). This is also borne out in the mix of senior advisors (most obviously the clashes between Powell and Rumsfeld in the last term but now in the mix of foreign policy moderates on one hand, and folks like John Bolton and Douglas Feith, on the other).

Much has been made of President Bush liking to have a wide variety of views among his advisors and then choosing what he thinks is best; I’m all for such a leadership technique. The problem is that recent foreign policy hasn’t had this type of feel: rather its more like a lot of bureaucratic in-fighting with one faction winning out one day, another the next. The result is policy schizophrenia: write a presidential memo supporting the application of ICJ opinions one week, take away its jurisdiction on consular relations issues the next. Say the Law of the Sea Treaty is important, then sit and let it languish. Say the Geneva Conventions don’t apply in the War on Terror, then say we’ll apply most of them anyway, then repudiate your counsel’s legal memo on the issue.

In such an environment, who you have as your public face is very important because, quite frankly, allies need to be reassured that we aren’t about to do some crazy about face. I doubt John Bolton is that guy. I did not find the National Review Online piece that Julian linked to reassuring in the least; it made Bolton sound like someone who would support the UN only as long as the UN did exactly what the U.S. told it to do. That’s not going to win friends and influence allies and it’s not going to lead to productive UN reform. Sure, some have said it took Nixon to go to China and so it will take John Bolton to go to the UN. The difference, though, is that Nixon actually gave a damn about relations with China.

Transcript of Justice Ginsburg’s Address to the ASIL

by Chris Borgen

Following up on my previous post on Justice Ginsburg’s speech at the ASIL, I note that the transcript to Justice Ginsburg’s address is now available, here, at the ASIL website.

You Can’t Know the Players Without a Scorecard

by Peggy McGuinness

Foreign Policy’s cover story on the “Committee that Runs the World,” i.e., the Bush national security team, is well worth a read. (Try playing the “two degrees of Henry Kissinger” game at home!) Over at Democracy Arsenal, Derek Chollet has this positive assessment of the second-term “dream team” Condoleezza Rice is assembling at State. Over at Slate, Fred Kaplan has this argument on why John Bolton is actually out of step with Bush’s current foreign policy team — and certainly out of step with Rice’s statement at the ASIL meeting that the promotion of international law is “one of the pillars” of U.S. foreign policy.

Taft Was Right

by Chris Borgen

William Taft gave excellent legal advice to the Secretary of State and to the President. The Supreme Court, our international allies, U.S. public opinion, and the President have each vindicated him. The advice of the DOJ’s Office of Legal Counsel, by contrast, proved to be short-sighted or worse. If you haven’t already done so, please read Taft’s memo on the applicability of the Geneva Conventions to detainees; this is what good legal advice looks like.

The OLC argued that the Geneva Conventions shouldn’t apply either to al Qaeda or the Taliban based on the completely novel and controversial legal opinion that the Geneva Conventions didn’t apply to “failed states.” It also argued that the President could suspend the operation of the Geneva Conventions and that customary international law did not bind the United States.

The State Department found that the “failed states” argument is utterly without support and it “badly confuses the distinction between states and governments in the operation of the law of treaties.” As for Presidential suspension, State replied that the OLC memo was “legally flawed and procedurally impossible at this stage.” It also noted that the OLC memo did not even address the role of customary international law in how detainees should be treated and wryly quoted Justice Marshall’s quip that “to ask the question is to answer it.”

John Yoo and the various OLC authors were not experts on the laws of armed conflict and, in the midst of difficult times, they had to address complex material that was new to them. White House Counsel Gonzales had asked them to be “forward leaning” in their memoranda concerning the latitude U.S. forces would have in treating and interrogating detainees. By contrast, Taft and the State Department attorneys, along with the uniformed JAGs (who, according to numerous reports in DC at the time, tended to concur with the State Department view), were experts in the subject matter. Taft was no stranger to having to make hard decisions, he was General Counsel of the Department of Defense and then the Deputy Secretary of Defense in the Reagan Administration. He was also briefly the Acting Secretary of Defense. In the Administration of George H.W. Bush, he was the US Representative to NATO. Perhaps it was in light of his significant experience and expertise that he gave John Yoo some sage advice in his cover note to the State Department memo:

John, I understand you have long been convinced that treaties and customary international law have from time to time been cited inappropriately to circumscribe the President’s constitutional authority or pre-empt the Congress’s exercise of legislative power. I also understand your desire to identify legal authority establishing the right of the United States to treat the members of the Taliban Militia in the way it thinks best, if such authority exists. I share your feelings in both of these respects. I do not, however, believe that on the basis of your draft memorandum I can advise either the President or the Secretary of State that the obligations of the United States under the Geneva Conventions have lapsed with regard to Afghanistan or that the United States is not bound to carry out it obligations under the Conventions as a matter of international law. That may mean, of course, that we must determine specifically whether individual members of the Taliban Militia in our custody are entitled to POW status, and it may be that some are actually entitled to it. In previous conflicts, the United States has dealt with tens of thousands of detainees without repudiating its obligations under the Conventions. I have no doubt we can do so here, with a relative handful of persons involved. Only the utmost confidence in our legal arguments could, it seems to me, justify deviating from the United States unbroken record of compliance with the Geneva Conventions in our conduct of military operations over the past fifty years. Your draft acknowledges that several of its conclusions are close questions. The attached draft comments will, I expect, show you that they are actually incorrect as well as incomplete. We should talk.”

Julian correctly states that the OLC views won the day. But only at first. This doesn’t take “the sting out” of the criticism of the OLC’s work. The OLC memoranda were to justify certain policies the Administration wanted to undertake; they were supposed to be “forward leaning.” They gave the Administration the fig-leaf it wanted. They were ends-driven as opposed to balanced analyses. (The ethical implications are considered by my colleague Robert Vischer, here.)

Since then, Taft and the State Department’s views have prevailed. The Supreme Court rejected law-free policymaking in regards to detainees. Our allies were appalled by the OLC views and argued strenuously that the U.S. not forget its great history of upholding the humane treatment of detainees as a matter of law. American public opinion recoiled at the revelations of the torture memos. And, in the end, the Bush Administration has repudiated the torture memos that followed-on the original memo finding the Geneva Conventions inapplicable.

Perhaps the Taft memo wasn’t “forward leaning” but it was right as matter of law and wise as a matter of policy. You ignore the legal protection of detainees and you get Abu Ghraib.

I am surprised that Julian is surprised that Taft mentioned that senior military officials favored applying the Geneva Conventions. Washington was abuzz with talk about the rift between the uniformed military attorneys and the civilian DOD and Justice Department lawyers. This had been widely reported before Taft’s speech. There were also many complaints by uniformed lawyers that they were frozen out of the decision-making process. There was probably no DOD memo because the DOD decision-making was controlled by civilian political appointees.

Finally, if Julian thinks it is an overstatement to say “How our government treats people should never, at bottom, be a matter merely of policy, but a matter of law,” then I guess we just have a philosophical difference. We are allegedly a nation of laws. It is in remembering that that we avoid our worst mistakes, be it the wholesale detention of Japanese-Amerricans or the official wink-and-a-nod to torture.

William Taft knew that; perhaps now the OLC does as well.

Secretary of State Rice’s Remarks at the ASIL

by Chris Borgen

The transcript of Secretary Rice’s comments at the Annual Meeting of the ASIL have been posted online here.

Former Legal Adviser Taft Goes Off the Reservation

by Julian Ku

The WSJ reports today (reg. req’d) on a speech from last month by former State Department Legal Adviser William H. Taft IV criticizing the U.S. government’s policy on detentions in Guantanamo Bay. Here are the highlights:

There is no basis in the law of war, criminal law or human-rights law for such practices [in Guantanamo]. Nor is it tenable after the Supreme Court’s rulings last summer to assert that detainees have no legal rights of any kind, that they may not contest with the assistance of competent counsel of their own choosing the legal basis of their detention, that the government has complete discretion to determine the conditions of their detention, or that whether they are treated humanely or not is a question only of policy….How our government treats people should never, at bottom, be a matter merely of policy, but a matter of law.

The article further quotes Taft as saying “senior military officials agreed that the treaty should be followed ‘without qualification,’ but Justice Department lawyers insisted on ruling that the Geneva Conventions “did not apply to al Qaeda as a matter of law and to qualify the commitment to apply them as a matter of policy to situations where this was ‘appropriate’ and ‘consistent with military necessity.’ “

I don’t know exactly what to make of this airing of the administration’s internal deliberations, which is always somewhat suspect because Taft obviously has an interest in bolstering his reputation. But, if the reporting of Taft’s statements is accurate, and Taft himself is stating the truth, they lead me to a few comments:

(1) Given that the White House was getting all this contrary advice from Taft, it actually takes some of the sting out of the critics of the Justice Department’s Office of Legal Counsel’s work here on this question. The Justice Department prevailed, but it wasn’t because the Justice Department gave misleading or deceptive advice. Rather, it seems to me they gave their considered views, and the State Department gave their considered views, and Gonzales made his choice between them.

(2) I am a bit surprised to hear Taft claim that unspecified “senior military officials” supported applying the Geneva Convention without qualification, even to Al Qaeda. Why such a Defense Department legal memo has never surfaced makes this claim rather suspect to me, since DOD lawyers have every incentive to leak such a memo. Rather, I bet the military was divided on this question, and didn’t have a uniform view on this question.

(3) I think Taft is way overstating his case when he declares that “How our government treats people should never, at bottom, be a matter merely of policy, but a matter of law.” Actually, I think the reverse is just as often the case, that is to say, that how our government treats people should often be a matter of policy, and not a matter of “law” precisely because law is often inflexible and ill-adapted to changing situations. In many, many instances, policy makers are given lots of room for discretion by the law, and I would want our policy makers to act humanely and decently even if the law does not require them to do so. That is, officially at least, the current administration’s policy even though there is some evidence that it is not really living up to its own policies.

Posner and Goldsmith on "The Limits of International Law"

by Peggy McGuinness

The day before last week’s ASIL meeting, AEI hosted an excellent panel discussion of the book “The Limits of International Law” by Professors Eric Posner and Jack Goldsmith. A transcript of the discussion is here. The Posner/Goldsmith thesis is based on rational choice: States should engage in international law making or agree to comply with pre-existing international legal norms in order to promote their national interests. Posner and Goldsmith distinguish their theory (only slightly, perhaps) from international relations realists by recognizing that national interests can be broader than just maximizing power or security. But at bottom, Posner and Goldsmith posit that international law is an expression of states acting rationally to promote to their national interest. Any cooperation among states is a byproduct of that rational act. This is an intuitive and very useful framework for explaining both why states enter treaties and why they may later breach them. But it has limits.

While Posner and Goldsmith claim that they are not suggesting that international law is meaningless or that international law does not exist, that is not an unreasonable conclusion to draw from their thesis. As David Scheffer pointed out in the discussion, if the claim is that states only act rationally in their national interest, and if a state decides that international law is not part of its national interest, is there international law? Douglas Ginbsburg had a different twist: if international law is nothing more than states acting in their rational self-interest, it appears to be some sort of device through which politics can be carried out, but does not have the full attributes of law.

Further, the thesis is limited by its necessary reliance on a rather monolithic view of “national interest.” Interestingly, this critique comes from both the right and the left. The right takes seriously the moral underpinnings of liberal democracy and believes expression of that morality has a place, for example, in the United States’ national interest. For the liberal institutionalists, the rational choice hypothesis fails to consider the complexity of state interests and the various constituencies (including minority views) that are reflected in a state’s participation in international legal regimes. And it also fails to consider how international law and institutions themselves are integrated into and affect notions of self-interest at the domestic level.

That said, the book is a useful framing device through which to test and examine other theories of international law.

Why the U.S. Can’t Win: Sudanese Protest ICC Referral

by Julian Ku

Sudan’s government is (not surprisingly) refusing to hand over alleged war criminals to the ICC, as it is required to do per the U.N. Security Council’s resolution last week. Indeed, according to the BBC, tens of thousands of Sudanese are protesting the U.N. referral and even directly blaming the U.S.

“We are coming here to say to America ‘no’ to these orders. We are not people who have to listen to orders from anybody except the Sudan,” one demonstrator said.

This is ironic, to say the least, because the U.S. has been pummelled for weeks by the European and U.S. media for blocking an ICC referral in the first place. Having finally relented, they will no doubt be blamed for whatever the ICC ends up doing in Sudan as well. Sometimes, it’s no fun being the world’s only superpower…

Justice Ginsburg and Secretary of State Rice at the ASIL; More on Citation to Foreign Sources by U.S. Courts

by Chris Borgen

As many of you may already know, Justice Ruth Bader Ginsburg gave the keynote address at the American Society of International Law’s Annual Meeting. This, in and of itself, is worthy of special note. However, on top of this, Secretary of State Condoleezza Rice introduced the Justice with a short speech covering the relation of the rule of law to the expansion of liberty around the world. See the New York Times article about the speeches here.

Justice Ginsburg’s speech focused on the debate over citing to foreign law in court opinions. Noting that judges are “free to consult all manner of legal commentary,” she gave a spirited defense of the practice of reading and citing to foreign opinions. In part, her reaction to the criticisms of citing to foreign law can be described as that it is much ado about nothing or perhaps much ado about very little. No U.S. judge citing to foreign law claims that it is in any way binding; quite simply it is a matter of looking to what other legal experts facing similar problems have done. She discussed cases from the Supreme Court and from the circuit courts that referred to foreign law.

Justce Ginsburg was clearly nonplussed by criticism that citing to foreign law is like going to a cocktail party and picking and choosing who you talk to. Both sides to a litigation can draw analogies to foreign law (or other non-binding material, for that matter)… if it seems reasonable, if we can learn from it, then why shouldn’t we be able to look at it, if we choose to? As for the argument that other countries have learned from us in how to build constitutional democracies, thus it would be backwards for us to look to them for ideas, she paraphrased Judge Patricia Wald in concluding that “wise parents know how to learn from the experiences of their children.”

I agree that this debate is really much ado about very little. Nonbinding material ranging from literature to the writings of political philosophers to the decisions of courts from other states of the U.S. to the decisions of foreign courts are referred to by judges from across the political spectrum. It is hard to make an argument that one non-binding source can not be allowed (foreign judgments) while most or all the others can. Justice Scalia, to his credit, argues that his view of foreign law is based on his interpretive originalism that would be hostile to any of these materials being included. Very few judges take their interpretive philosophy to quite this extreme, however. (and some have argued that not even Scalia consistently follwos his own rule.) So, then, what is a principled reason for allowing some non-binding material but not other such material? And, as Justice Breyer had previously queried in a discussion with Justice Scalia, does it really make sense that a Justice should be allowed to read such material but, even if it in all honesty affected how they approached the problem, they should not be allowed cite to it in their opinion?

State Department Briefing on the ICC and Darfur; Some Thoughts on ICC Jurisdiction

by Chris Borgen

Following is an excerpt from the State Department press briefing from April 1st in which Richard Boucher discussed Security Council Resolution 1593 (transcribed, along with state comments, here), referring the Darfur situation to the ICC (see also the press release from the ICC itself, with links to other resources, here).

Some of the questions focus on whether the Security Council referral is a novel basis for jurisdiction (see, especially the part I highlighted). While the Q&A on this was a bit muddled, I think the short answer is that such a referral is not a novel legal theory—it was contemplated in Article 13(b) of the Rome Statute. (I consider this further below the press briefing excerpt) The Security Council has always had significant powers under Chapter VII of the UN Charter, which covers threats to the peace. What we see here is how the Security Council may work together with the ICC to address such matters.

QUESTION: Can you explain why it is that the U.S. Government believes that citizens of Sudan, which signed the Rome Statute, but has not ratified it and therefore is not a state party to it, should be subject to its jurisdiction, when the crux of the American argument is that U.S. citizens should not be subject to its jurisdiction because the United States is not a state party to it?

MR. BOUCHER: You might understand that I think this is the third time you’ve asked this question today, and so my answer might be similar to the answer that previous officials, including the Secretary of State, have given to you to this question.

The United States believes very firmly in accountability for the crimes that have been committed in Sudan. We thought it was very important that the UN Security Council take action. As you know, we have explored, along with some of the Africans who have supported the idea, of an African-led tribunal that can do that, but all of us keeping to the fundamental point that it is vital to ensure accountability.

This is a Security Council action. This is an action where the Security Council has determined the crimes that have been committed need to be prosecuted, and the Security Council has determined what the appropriate forum is for those prosecutions. To that extent, it is similar to some of the other decisions that the Security Council has made; it’s just in a different court.

Second of all, I think the circumstances in Sudan, Darfur in particular, have been extraordinary and need to be addressed. Other states that are not party to this, including the United States, have appropriate judicial and legal vehicles to address crimes that might have occurred. The United States itself is in the process of prosecuting crimes or allegations against Americans who might have committed abuses in Iraq. And we’re demonstrating, I think, to the world now that we do follow up on our own on those things.

No such mechanism exists in Sudan. We explored whether a mechanism like that could be established in Africa. There wasn’t sufficient support for that. And there is a mechanism that many members supported in terms of doing that before the International Criminal Court. And so we abstained because we think it is very important that these crimes are prosecuted.

QUESTION: Did the Security Council stay within the rules when it did what it did last night? In other words, there’s a treaty here. I don’t think that the Security Council has the power to go beyond what the treaty says. Was there an overreach by the Council in this regard?

MR. BOUCHER: I think first of all, that would have to be a question the treaty would have to – treaty members, parties, would have to try to answer. If there is any legal question, I have not seen one raised. Certainly, the nine members of the Council, I think it is, or parties to the treaty, didn’t think so.

We have — I mean, it was important to us in this resolution to achieve two things, and that we did achieve: one was accountability for the crimes, and two was protection for Americans who are not party to the treaty.

The fact that this was done, and I think you’ll see this in the explanation of the vote we gave in the UN and other statements that we have made, the fact that this was done by the Security Council is important to us, but nonetheless, we still have our fundamental objections to the Rome Statute and the International Criminal Court, and therefore, we wanted to build in certain protections. Those are built in for nationals of states not party. The resolution also recognizes that absent the consent of the state involved or a Security Council referral that persons of states not party to the Rome Statute should not be subject to ICC jurisdiction.

The resolution also takes note of Article 98 agreements within the scope of the Rome Treaty. As you know, we signed a number of those, I think over 100 — or 99, sorry, Article 98 agreements the United States has already entered into.

QUESTION: Do you have one with Sudan?

MR. BOUCHER: No. The other thing that is recognized is that none of the expenses incurred in the referral on the prosecution would be borne by the UN members, but rather they’ll be borne by parties to the Rome Statute. So in that way it protects, I think, our position on the Rome Statute, the International Criminal Court, but fundamentally what it achieves is something very, very important to all of us, and that’s it achieves accountability for the crimes of Darfur.

QUESTION: But let me follow up. You note that the resolution states that states that are not party must give their consent; therefore, if Sudan does not give its consent, and I believe it has not yet, no Sudanese citizen could be tried and therefore there would be no accountability for Sudanese citizens at all. Why —

MR. BOUCHER: Well, I —

QUESTION: No — may I finish my question?

MR. BOUCHER: It’s based on a false premise. I can stop you there.


MR. BOUCHER: I just said absent consent or referral by the Security Council —

QUESTION: Excuse me —

MR. BOUCHER: In this case, we have referral by the Security Council.

QUESTION: Excuse me, but to go to the rest of the question — and forgive me for that error — why should not Sudan continue to argue what is essentially your position, that because they’re not a state party their citizens shouldn’t be subject?

MR. BOUCHER: Because, first of all, Sudan doesn’t have a mechanism to show that there can and will be accountability for these crimes; and second of all, because the international community has looked at this situation and decided that this is the appropriate way to ensure prosecution of some horrible abuses and crimes, crimes that we have called genocide.

QUESTION: But, Richard, doesn’t this set precedent for the future in that, you know, any country that is not a party to the ICC at some point may be referred by the Security Council to the ICC? And there are certainly plenty of countries in the world that don’t have the internal mechanisms to deal with such an issue, like Zimbabwe, for example, or there are several others that I could name.

MR. BOUCHER: As I said, the resolution itself recognizes that absent consent from the state or referral from the Security Council that parties, persons from states that are not a party, won’t be subject to this. But under those circumstances, they could be. So it’s — yes, it establishes a practice. As I think many of you know, one of our fundamental problems the United States has had, going back to the previous administration, I would add, with the Rome Statute has been the lack of Security Council oversight to begin with.

QUESTION: And just one more. Do you have a reason to believe that Americans could be accused of involvement in crimes in Darfur, which is why you wanted to have this protection clause?

MR. BOUCHER: No, absolutely not. We have — I think if you go back to Security Council resolutions, if I remember correctly, Liberia might have been the first, but there have been several Security Council resolutions that one way or the other have dealt with this kind of protection, it’s been fundamental to the United States to achieve that when we deploy people overseas. But that in no way implies that we think Americans are committing crimes. And if they did, of course, they would be subject to American prosecution.

Following are two of the key articles (emphases added) on jurisdictional issues from the Rome Statute. Note that the requirement of being a Party to the ICC statute, discussed in Article 12, does not apply to the Security Council referral mechanism in subsection (b) of Article 13. Reading these articles together, one may see that the Security Council may, at its discretion, use the ICC as its mechanism of investigation and adjudication in cases regardless as to whether the states involved are parties to the Rome Statute. While the Bush Administartion seems to prefer closer oversight of the ICC by the Security Council and, as such, this referral can be seen as consistent with US comments regarding how the ICC could best do its job (with prior approval of the Security Council rather than independently), this can also be seen as a cause for potential concern: the reinforcement of the idea that nationals who are neither from State Parties nor operating within a State Party can nonetheless (with Security Council approval) be tried by the ICC. (Though of course there is little real concern that nationals of the U.S., U.K., Russia, China, or France would ever be tried as their country could veto any such referral.)
Article 12
Preconditions to the exercise of jurisdiction

1. A State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court with respect to the crimes referred to in article 5.

2. In the case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3:
(a) The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft;
(b) The State of which the person accused of the crime is a national.

3. If the acceptance of a State which is not a Party to this Statute is required under paragraph 2, that State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question. The accepting State shall cooperate with the Court without any delay or exception in accordance with Part 9.

Article 13
Exercise of jurisdiction
The Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of this Statute if:
(a) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by a State Party in accordance with article 14;
(b) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations; or
(c) The Prosecutor has initiated an investigation in respect of such a crime in accordance with article 15.

Security Council Resolution Referring the Darfur Situation to the ICC

by Chris Borgen

The text of the resolution, as well as a summary statements of Security Council members on the resolution, is here.

The resolution passed 11-0-4. The four abstentions were Algeria, Brazil, China, and the U.S. The technique of not necesarily supporting something but not preventing it either by abstaining has been a technique that has become more common in the Post-Cold War Security Council.

The resolution was enacted under Chapter VII on the UN Charter, the section of the Charter concenring breaches of peace and sucurity, and consequently could require states to comply with the resolutions amndates. The text of the resolution was parsed by various speakers at this weekend’s Annual Meeting of the American Society of International Law. While it is clear that the resoltuin required Sudan and other parties to the conflict to cooperate, it is unlikely that third paty states (such as the U.S.) are actually required to do anything. Note, in particular, the wording of operative paragraph 2 (I have emphasized certain words:

“2. Decides that the Government of Sudan and all other parties to the conflict in Darfur shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution and, while recognizing that States not party to the Rome Statute have no obligation under the Statute, urges all States and concerned regional and other international organizations to cooperate fully;

The contrast of saying Sudan shall do something while other satets are simply urged was quite possibly one of the key bargaining points. Regardless as to whether third party states are required to cooperate, one would hope that they would, as successful prosecutions are in everyone’s (including the U.S.’s) interest (well, except perhaps for those Sudanese who committed genocide or war crimes…).

Now that the ICC has received an important referral from the Security Council, it will need to show that it is up to the task of taking on such big cases. And let us hope it gets the cooperation it will need to achieve a just result.