Archive for
August, 2005

Pentagon Announces New Rules for Military Commissions

by Julian Ku

The Pentagon released new rules today governing procedures in military commission trials (the USA Today account is here and the WSJ account is here). Note that these rules will not directly affect the consideration of Hamdan v. Rumsfeld (the case I discussed here involving Osama Bin Laden’s driver) because the petitioner there is challenging the legality of the military commissions themselves under constitutional and international law, and not the individual procedures in those commissions.

I don’t have time to analyze the rules in full, but I doubt it will have any effect on the litigation challenging the process since attorneys for the petitioners will no doubt challenge any rules that are promulagated. If the Supreme Court eventually reaches the question of whether the procedures are fair, thought, I suppose these changes might help the commission survive that eventual review.

Should Americans Take Canada Seriously?

by Julian Ku

By many measures, the U.S. relationship with Canada is its most important. After all, Canada is its most important trading partner and shares the longest border with the U.S. Yet how to explain the continuing recent war of words between the U.S. and Canada. After new U.S. ambassador to Canada David Wilkins chided the Canadian government for “emotional outburts” about the ongoing softwood lumber dispute, Canadian Industry Minister David Emerson provided this outburst:

Are we going to stand together? Are we going to unite? Are we going to be stronger than the sum of our parts, or are we going to endlessly be bickering amongst ourselves and allow the bully to basically mop the floor with us?

Not only are Canadian leaders furious, but they must even more furious that their fury is essentially being ignored by the U.S. media and public (as the NYT notes here).

Sometimes, the Canadian image of themselves being ignored and bullied by the U.S. is accurate. I don’t think, though, that this is one of those cases. The U.S. actually has a somewhat defensible legal position, certainly more defensible than I first thought from reading Canadian media descriptions of the U.S. “ignoring” the NAFTA ruling. The U.S. does not believe that it has an obligation to comply with the most recent NAFTA decision on softwood lumber because the U.S. International Trade Commission made a new 2004 determination of (presumably new) injury caused by Canadian subsidies. This new determination was not examined in the NAFTA proceeding (which ruled on a 2002 ITC determination that was implemented. see here for the full NAFTA decision.). Moreover, that new 2004 determination was made in response to a WTO panel decision on this same dispute. Indeed, the WTO issued another ruling yesterday that backed up the U.S. position. Here is the U.S.T.R. spokesman’s explanation of this interpretation here and a further statement here.

Bottom line: The Canadian government is definitely overreacting here by claiming that this lumber dispute is about respect or compliance with the NAFTA process. After all, the U.S. is acting here in compliance with the WTO process. So what we have here is a messy dispute flying back and forth between two different international dispute resolution systems which may or may not be in conflict with each other. In such a mess of a dispute, a negotiated settlement may be the more efficient solution.

Canadian leaders, however, prefer to whine about U.S. bullying and petulantly refuse to negotiate. All this pouting, however, is going to only reinforce Canada’s image among Americans as a country we don’t have to take seriously.

The Death of An International Law Firm

by Peggy McGuinness

The NYTimes carries this article today on the dissolution of the venerable Coudert Brothers, arguably the first truly international law firm. While Coudert managed to maintain some of its prestige, it has been falling farther and farther behind on profits during the last decade or so. Its dissolution comes as no surprise.

Grabbing the Low-Hanging Fruit – China Ratifies Anti-Tobacco Treaty

by Julian Ku

The BBC is reporting that China has ratified the World Health Organization’s Framework Convention onTobacco Control. This make China the 78th party to the FCTC according to the WHO website (contrary to the BBC’s report).

This treaty is an easy treaty to ratify for most countries, because it doesn’t really require them to do anything that they don’t want. In this case, all it requires China to do is crack down on tobacco advertising, something it was doing anyway. Expect speedy ratification by all signatories, even the famously recalcitrant U.S. Memo to the U.S. Senate: Ratify this treaty with as much fanfare as possible. It is a quick and cheap way to score some international good will without having to actually change domestic laws or national behavior.

Iraq’s Much Less Internationalist Constitution

by Julian Ku

The final draft of the permanent Iraqi Constitution can be found here. The lack of support from Sunni representatives and the Constitution’s subordination of any law to “the undisputed rules of Islam” is certainly the big news.

It is also interesting to note, however, that the new Constitution cuts back substantially from the internationalist commitments of the interim Constitution. As I discussed here, the interim Constitution creates a set of rights, and also notes that Iraqis enjoy all “rights stipulated in international treaties and agreements … and in the law of nations.” This could be read to incorporate all customary international human rights law into the Iraqi system and it did not qualify this incorporation by subordinating international law to domestic Iraqi law.

But the new Constitution has much less to say about international law, subordinates internatonal treaties to the Constitution, and tosses out customary international law entirely. Article 44 states:

All individuals have the right to enjoy the rights stated in international human rights agreements and treaties endorsed by Iraq that don’t run contrary to the principles and rules of this constitution.

Now, this is hardly the most important part of the Iraqi constitution. I imagine no Iraqis will vote down or vote for this constitution because of these provisions. But it is worth noting that Iraq has stepped back from the aggressive internationalism of its interim constitution and re-asserted the supremacy of Iraqi constitutional law (which by the way cannot contradict the “undisputed rules of Islam”) over international human rights law.

Thanks to Tony D’Amato

by Chris Borgen

Peggy, Julian, and I want to thank Tony for his guest blogging with us for the past couple of weeks. The discussion he spurred was lively, to say the least, and we look forward to his continuing to comment on the discussions on this blog and then returning as guest blogger in the not-to-distant future.

As for the usual suspects, the three of us are largely back around and you’ll be seeing more of us in the coming days. Also coming soon… other guest bloggers and the next installment of Opinio Juris Interviews.

A final blog (for now)

by Tony D'Amato

I’ve talked about Muslim women and international law. Where are they? Where am I? I am sitting here at my keyboard, a lump of protoplasm surrounded by skin. International law is external to me. The Islamic people are external to me. Do I have a right to interfere with these external things? Do they have a right to interfere with me?

The word “right” shows up in these questions. Does the right come from them? Or does it come from me?

If international law says that the Islamic people and I have rights, who authorized international law to say it? In his comments to my blogs, “Obtestor” keeps saying that it is the women of the world who have told international law what to say. It is they who have decided what everyone’s rights shall be. Is Obtestor articulating a powerful insight here? Or is he just trolling for a date?

If my rights are part of my belief system, where did I get my belief system? Most belief systems are formed in childhood. In the Muslim world, boys and girls are raised together in the women’s quarters. When a boy is born, there is great fuss and celebration. But the women do not seem happy when a girl is born. They convey their displeasure to all the boys and girls who are in their care.

A young boy is fussed over and spoiled by all the adult women. As a result, the boy usually becomes a brat. He hits his sisters, steals their food, and behaves like a tyrant toward them. His mother and all the adult women back him up. If he hits a girl who is younger than he is, and hits her for no reason, the women will yell at the girl and maybe hit her. They will tell the little girl that she has displeased the boy, even if she hasn’t.

Finally, when the boy is six or seven he’s sent to the men’s quarters to live with a tutor under the authority of his father.

We might say, looking at all of this, that the women are merely preparing the children for the life of extreme inequality that lies ahead of them. The male person can do whatever he wants; the female person must learn to like it, whatever it is.

Who am I to criticize these people? Hasn’t my belief system been instilled in me just as their belief system was instilled in them? When I was a child, I was told, by adults I trusted, all about God. I was told that I could pray to God and that He would listen. I prayed a lot. I tried to start conversations, but I knew that God was a little too busy to answer me.

However, I no longer believe these things. I have trouble even figuring out what the concept “God” might mean. I don’t say that God doesn’t exist, but I also don’t say that God exists. I think I was very lucky to be able to read books and be exposed to ideas, and given enough time to think in solitude, that I could mentally disengage from these childish things.

I don’t think that Muslim women have the opportunity to disengage. Their childhood brainwashing is just too thorough. What the young Muslim woman said in my previous blog are things she deeply believes. She has been sincerely brainwashed.

I don’t think I was quite as thoroughly brainwashed as a child because I’ve rejected all the things I was taught. I would not have been able to reject them if I had been as completely brainwashed as the children of Islam.

I have evolved a perspective of the world and my place in the world that I believe is not entirely the product of what any other person or group of persons have ordained for me. I think I see the world more objectively than Muslim women see it. Of course, I could be wrong about this, but just the possibility that I am wrong doesn’t make it wrong. Someone would have to prove to me that I am wrong.

So here’s how I come out. I may be a creature of my belief system, but it’s MY belief system. And an important part of it is that no human adult should ever have legal or moral superiority over any other human adult.

I look at the Qu’ran. Even though Ali in a comment says I should be taking seventh century texts with a grain of salt, he would probably be even more outraged if I instead quoted a later translation. I am also sure that the same words I am quoting are read today by millions of Islamic people. As you recall, those words of the Prophet are: “Men have authority over women because God has made the one superior to the other.”

And I say to Muslim women: Reject these words. Do not allow a seventh century Prophet to run your life.

And I say this because I cannot say the opposite without denying my own belief system. I cannot say the opposite without denying my own humanity. I believe I am right and their system is grievously wrong.

Iraq’s Constitution and International Law

by Julian Ku

Some versions of the proposed text for Iraq’s Constitution have been posted here. Now Prof. D’Amato has already suggested there are possible conflicts between the proposed text’s commitment to Islamic law and to international law. Which naturally leads to the legal question: in a conflict between domestic Iraqi law and international law, which law will prevail in the new post-Constitution Iraq?

In the Transitional Law, that is to say the interim constitution currently in force, international law holds an honored place. The Preamble announces that,

These people, affirming today their respect for international law, especially having been amongst the founders of the United Nations, working to reclaim their legitimate place among nations, have endeavored at the same time to preserve the unity of their homeland in a spirit of fraternity and solidarity in order to draw the features of the future new Iraq…

Even more importantly, Article 23 of the Transitional Law holds that:

The enumeration of the foregoing rights must not be interpreted to mean that they are the only rights enjoyed by the Iraqi people. They enjoy all the rights that befit a free people possessed of their human dignity, including the rights stipulated in international treaties and agreements, other instruments of international law that Iraq has signed and to which it has acceded, and others that are deemed binding upon it, and in the law of nations. Non-Iraqis within Iraq shall enjoy all human rights not inconsistent with their status as non-citizens.

In other words, the transitional constitution is quite internationalist, and appeared to incorporate all human rights recognized by international treaties and customary international law. I haven’t seen any mention of similar language in the proposed permanent Constitution. This may or many not matter. For now, I’ll let our readers draw their own conclusions if similar internationalist language does not appear in the final Iraqi Constitution.

Most important human right in our lifetime, Part 3

by Tony D'Amato

I suppose we can divide human rights into two types: those that people want, and those they don’t want. In the preceding parts of this thread, I’ve set out what I think is one of the hardest cases of the second type. I’ve pictured a Muslim woman (taking the term Muslim generically for present purposes—there are of course many Muslim sects with many variations of practices) who, in the exercise of her own volition, chooses to be legally inferior to men. I’ve tried to articulate her position, which is a composite of the views I have heard after many years of listening and study.

However, the International Covenant on Civil and Political Rights provides for equality before the law for all persons and prohibits discrimination on the ground of sex (Article 26). It also provides for the equal right of men and women to all civil and political rights (Article 3). Thus there is a clash between this norm of international law and the preferences of Muslim women.

Exacerbating this clash is the fact that Muslim men are united with Muslim women on this score: both sexes believe that men are superior to women—legally, socially, physically, and according to the tenets of Islam. Moreover, their nations stand behind them. Today, as I write these words, the newspapers are reporting the final text of the proposed Iraqi constitution. It provides in Article Two (1)(a) that “No law may contradict Islamic standards.” Let’s look at the relevant Islamic standard provided in the Qu’ran:

Men have authority over women because God has made the
one superior to the other. Good women are obedient. As for
those from whom you fear disobedience, admonish them,
forsake them in beds apart and beat them.

Quibbling aside, it seems to me that no fair-minded person can compare the texts of the ICCPR and the Qu’ran and conclude that they are substantively compatible with each other.

In approaching the problem of a clash between the law and deeply held religious/cultural practices, let us briefly consider two easier cases. The first case is that of Christian Scientist parents refusing to let their six-month-old child be operated upon to remove an intestinal blockage. Here the law intrudes: it prohibits the parents’ interference and requires that the operation proceed. The second case is that of female circumcision. Even though this practice is widespread in Muslim communities throughout northern Africa, the law on the books in those countries forbids it.

These cases are easier because our case of the inequality of Muslim women is generally accepted by all persons living within the nation that authorizes the inequality. Thus not only do we have a clash between international law and religious/cultural practices, but we also have a clash between international law and a state’s domestic jurisdiction. On all counts, this clash is so enormous as to lead us to revaluate our commitment to the rule of law.

I think revaluation is always healthy. The “law” should not blindly dominate our lives. I’ve argued elsewhere that even the word “should” should not apply to legal commands. A rule of law, as Kelsen pointed out, is simply a calculation: “if you choose to do X, the state will do Y to you.” There is no “should” or “ought” about it at all.

If Kelsen’s essentialist view is accepted, then we have to go outside the law to see whether the law “should” be obeyed. Morality (at least as Kelsen sees it) is external to the law. Thus it is morality that provides the “should” factor. But morality, by its very nature, cannot apply to every law that is enacted without ending up contradicting itself. Thus morality must pick and choose among the legal rules. Some “ought” to be obeyed; others (like the law requiring apartheid decades ago in South Africa) “ought not” to be obeyed.

Hence, in comparing the ICCPR with the Qu’ran, “the law” will only take us a small part of the way. What we really have here looks like a clash of morality. How do we deal with that?

One way to deal with it is through moral relativism. We might say that although women and men ought to be equal before the law, this equality applies only in parts of the world. In other parts, where both men and women agree that women ought to be inferior to men under the law, then THEIR morality dictates a result opposite to the one we would reach.

I think moral relativism is incoherent. I believe there is a clear moral answer to the clash between equality and inferiority for women. I believe in moral absolutism, which I acknowledge up front is an arrogant doctrine. I’ll try to defend my position in my final blog, coming soon to a theatre near you, either Wednesday or Thursday of this week.

ICJ Campaign Season (cont’d): The Candidates Step Forward

by Julian Ku

The UN has released more information on the eight candidates for the 5 opening slots on the ICJ here.

Amor, Abdelfattah (Tunisia)
Bennouna, Mohamed (Morocco)
Buergenthal, Thomas (United States of America)
González Campos, Julio D. (Spain)
Keith, Kenneth (New Zealand)
Mazou, Seidou Adamou (Niger)
Sepúlveda Amor, Bernardo (Mexico)
Skotnikov, Leonid (Russian Federation)

Here is a useful horse-race analysis from a knowledgeable source who works for a government agency:

There are eight nominees for the five seats. By tradition, two of these five seats will go to the United States and Russia. That leaves six nominees for three seats, all of them “open,” as none of the incumbents of these seats is seeking another term. But these seats are, again by tradition, allocated by region — one to Latin America and the Caribbean, one to Africa, and a third to the WEOG. There is only one candidate (from Mexico) for the Latin American seat, so presumably that person will be elected. There are three candidates for the African seat, but of these three, one is the clear favorite (the Moroccan) and presumably he will be elected. And there are two candidates for the WEOG seat — Sir Kenneth Keith of New Zealand and Julio Gonzalez Campos of Spain. The WEOG seat is clearly the only truly contested seat at this election, and it is, therefore, no wonder that New Zealand is expending such effort on behalf of its candidate.

There are a couple of other interesting aspects to the document. One is that Russia has decided to replace Judge Vereshchetin with Leonid Skotnikov, the current Russian Permrep to the UN Office in Geneva and former Russian Foreign Ministry legal adviser. Another is that Judge Buergenthal received a significant number of nominations from national groups, which must be seen as a personal endorsement for him.

One side note (from Ku again): It looks like Judge Buergenthal will be the U.S. nominee again. He was not my choice (my old prof Prof. Michael Reisman should have been the U.S. judge), but I have nothing against him, and it looks like he is popular outside the U.S. as well (no doubt it helps that he is happy to vote against the U.S. in cases like Avena). But I actually think the U.S. position should be rotated more often, to get some fresh blood on the Court. Maybe someone from outside the cozy international law world? Eric Posner for ICJ, anyone?

Most important human right in our lifetime, Part 2

by Tony D'Amato

In my attempt to understand the mind-set of a Muslim woman, I will put into one combination speech the words of many Muslim women who have talked to me over the years, plusa lot from the scholarly literature of Western observers—primarily women—who have studied the lives of Muslim women:

We know more than you think about American women. We read your magazines and watch your television programs. More than half your marriages eud in divorce or abandonment, with devastating consequences for the children. In the thirty-year period from 1973 to 2003, over 44 million abortions were performed in the United States. Think of all the suffering and trauma hidden behind those statistics. In my country, the divorce rate is less than one per cent and there are hardly any abortions—only those necessary to save the life of the mother.

Instead of getting rid of a wife, don’t the men in your country simply add another one?

Polygamy makes everyone better off. Let’s say a man is not pleased with or satisfied by wife #1. So he goes out and marries wife #2. The deal certainly makes him better off, although he has to pay for it—a point I’ll come to in a minute. It makes wife #1 better off because she doesn’t have to “fake it” any more with her husband, and when he’s upset, he’s got a relief valve over in wife #2’s bedroom. And wife #2 herself is better off: she preferred a polygamous marriage to remaining single. No one forced her to make that choice.

Now let me get back to the man paying for a second wife. You cannot understand the situation of a woman in an Islamic country without knowing some of the basic things about property rights. A single woman usually has some personal property consisting of monetary assets and jewelry, and maybe land, depending on what her parents have given her and their economic status. When she enters into marriage, her personal property remains her own; her husband cannot take any of it. And she is under no obligation to use it for family purposes. For example, if the family is starving, she doesn’t have to spend any of her own money for food, though of course she may want to do so. The husband in a marriage is legally responsible for the welfare of the family. He must go to work if the family needs food or shelter. So you can see that marriage is a very good economic deal for the woman. She gets support and welfare throughout the marriage and does not have to spend any of her own money. That’s why I mentioned that the husband will have to pay for the luxury of having a second wife. Most husbands can’t afford it, and so polygamy isn’t much of a concern in practice.

In a magazine a few months ago I saw a panoramicphoto of the interior of a huge shopping mall in your country. There were shops of very kind selling clothing and goods from all over the world. There were over a thousand people in the picture. As I looked more closely, every one of them was a man.

Men like to shop. Besides, as I said, it’s their money. If a woman wanted to shop she would have to use her own money. Why not let her husband shop for the both of them on his money?

But wouldn’t you like the freedom of choosing your own clothes, shoes, accessories, that sort of thing?

It’s not freedom at all; it’s a nerve-wracking experience. If I were married, I’d have to think, “Will my husband like what I’ve chosen? If he doesn’t, it’s worthless; I’d have to leave it in the closet.” So the efficient solution, as you Americans might say, is to let him pick out my clothes and accessories, because that way he’s sure to like them. Besides, the silly fool gets a kick out of giving gifts.

But suppose you do want to go out and shop, or at least look around. You have to be completely covered in a burkah. Isn’t that oppressive?

No, it’s sexy. Girls can hardly wait till they get their first chador and burkah, because at that moment they become real, desirable women. They spend months picking out the lace for the burkah, because fine imported lace is the most important distinction between burkahs. Men are very good at spotting the women who have the best taste in burkahs.

How can a man find out what a young woman looks like?

Marry her. OK, maybe that was a bit glib. But the more profound truth is this: by being covered in black, Muslim women have achieved perfect sexual equality. Compare this to Western women. I’ve read that above 80% of American women are very unhappy with their own bodies, and more than 50% are actually ashamed of their own bodies. It’s worse for them when they see a television series like Sex and the City where the four friends are ridiculously good looking. But also the models, and magazine covers, and movie stars contribute to the neurosis and depression of the vast majority of young women in America. Young women feel that nature has played a cruel trick on them by giving them unattractive bodies. They should take a clue from us and solve their problem by getting themselves completely covered from head to toe whenever they go out of the house. Here are some statistics for you. The United States has a female suicide rate of 4 per 100,000. The more “liberated” countries are even worse: France has a rate of 9, Finland 10, Cuba 12, the Russian Federation 12, and Japan 13. Let’s compare that with the female suicide rate in Muslim countries: zero.

Well, you’ve made it difficult for me to argue that you are in fact oppressed and that your basic human rights are being unconscionably violated. But that is the argument I intend to make in Part 3, the final installment of this thread. My argument will be helped—or hindered, as the case may be—by readers’ comments on the first two blogs.

Even More Reasons for Canada to Hate Us

by Julian Ku

U.S.-Canada trade relations appear to have hit a new low as Canada has suspended further settlement talks over U.S. tariffs on Canadian softwood lumber. This may sound fairly trivial compared to some of the rather momentous topics that Prof. D’Amato has treated Opinio Juris readers to over the past week and a half, but I think the problems Canada is having enforcing the NAFTA tribunal’s judgment against the U.S. demonstrates that limits of even international trade law in forcing compliance by powerful countries.

In this case, the U.S. is refusing to abide by a NAFTA panel ruling this week finding its tariffs on Canadian lumber a violation of NAFTA requirements. Although the NAFTA system has reached a final judgment, the U.S. has still said it will not comply and that it wants to negotiate a separate settlement. In essence, the U.S. has lost, it has no more appeals left, but it wants to force Canada into a settlement anyway. What card does it have left to play? Open defiance with the NAFTA tribunal judgment.

As Professor D’Amato has pointed out, U.S. defiance here and in other international law regimes is not costless. For one thing, the U.S. will have a harder time getting Canada to comply with adverse NAFTA tribunal judgments, and the U.S. does often win, as it did today in a NAFTA Chapter 11 Tribunal’s ruling upholding a California environmental regulation against a Canadian challenge. But it may be that the U.S. is simply willing to pay that price, and though I think this is a bad policy, I’m unaware of any domestic legal mechanism that requires the U.S. to comply with the NAFTA tribunal judgment.

Revolting Against the Article 98 ICC Agreements

by Julian Ku

I’m also back after another short hiatus. I will post at greater length later this week, but for now I just wanted to note some recent pushback on those controversial Article 98 Agreements between the U.S. with a number of its allies preventing U.S. soldiers from being extradited to the International Criminal Court. Nigeria’s Senate recently passed a resolution declaring Nigeria’s Article 98 Agreement with the U.S. void because it violates Nigeria’s constitutional processes. Meanwhile, Jordan’s parliament will be convening special sessions to consider a similar agreement.

Whatever the legality of these agreements under international law, they appear to place the U.S. in a tricky policy position, especially in Africa. While the U.S. is trying to get Sudan to cooperate with the ICC, it is at the same time aggressively seeking exemptions for its soldiers. No doubt there is a fine legal point here: the U.S. supports ICC prosecutions that are controlled by the Security Council but not otherwise. This fine point, however, is probably a hard sell these days with the legislators of its partners and allies.

Can’t We All Just Get Along? Well, no, but….

by Chris Borgen

I just wanted to check in with everyone from the Opinio Juris Central Command Bunker hidden deep in the hills of… well, it doesn’t really matter where we are. Peggy, Julian and I will start showing up a bit more as we are in the process of finishing up articles and/or traveling.

I wanted to post this general comment, though, on the discussions over the last week. While the discussions overall have been very interesting and informative (at least for me), I want to ask everyone to hold back on the personal attacks and swipes. Please attack the argument, not the person. Folks from all across the political spectrum began to slide down the slope to ad hominems at various points. Please don’t. We want Opinio Juris to be a place for reasoned and informed debate about ideas. (Which, on the whole, we think it is.) So, before you hit the button to post to the blog, just take a moment to ask if you are reacting to the argument or to the person.

Now, back to our regularly scheduled melee…

The most important human right in our lifetime

by Tony D'Amato

If we consider the quantity of people affected and the quality of the effect, there is no greater injustice in the world today than the denial of equal rights for women. I’m talking specifically about women in fundamentalist Muslim countries in the Middle East. I am also talking about women in fundamentalist Catholic countries in Latin America, although the situation in the Muslim world is worse.

Add in the negative effect upon men. I for one find it painful to spend any time in a country that regards its women as a sub-species of homo sapiens. I cannot enjoy a few hours in such places, not even in their airports on my way somewhere else. How can any male person be happy when there are women in his vicinity who at that very moment in time are the victims of barbaric discrimination?

But what about the feelings of men from Islamic countries who come to the United States for college or graduate work? Don’t they feel equally unhappy in the presence of American women? No, they don’t. They enjoy it here very much. And they acclimate themselves almost overnight to our egalitarian culture and “groove” with it.

I did some work a few years ago for some women who were in “Divided Families,” as Ted Koppel called it his Nightline show that interviewed me. The scenario is more or less the same irrespective of the Middle Eastern country we’re talking about. An American woman meets an Arab in the United States, they get married, she converts to Islam, and they eventually move to the husband’s home country. Here’s a typical story told to me by one of my clients. The man she met in engineering school was a “real Omar Sharif type”—dashing, sophisticated, charming, and totally attentive to her. He shared fully in their household chores, was a great dad when they had a child, never argued with her, and worked out their minor problems on the basis of mutual respect and understanding. When they arrived back at his familial home in Riyadh, he started beating her. He locked her in her bedroom, placed tin foil over the windows, took away the light bulbs, and left her in the sweltering darkness. No food, a glass of water, two or three days of this.

I repeat, this is a typical story. All my clients, and all their friends who married Islamic men, had almost identical experiences.

The young wife would next seek out the grandmother figure of the family group. The matriarch would give her friendly advice: just please your husband and do everything he says. Everything will turn out just fine. But, the young woman asks, what about the beatings? “He still loves you. He is only disciplining you.”

Another of my clients (I call them clients because I had a confidentiality relationship with them though my work was pro bono) could stand her situation no longer. With meticulous planning, she left her house one morning when her husband went to work, made it to the school where she had excuses prepared to take her children home, got into a car driven by a friend, and made it to the American embassy in Riyadh. The Americans working in the embassy could not have been more sympathetic or helpful, she told me. She did not understand why it was taking them so long just to put her and her children on a plane to the United States; she had the money for the tickets. Cables hummed from the United States to Saudi Arabia and back. Finally, on the fourth day, two Marines assisted her and the children into a Jeep. She asked if they were going to the airport but they said nothing. They pulled up in front of her home, where her husband was standing there, glaring at them. She looked at the soldiers. “We’re sorry, ma’am, we’re only doing our job.” They left her and the children there and drove away.

Clearly there are two totally different Weltanshauungen here: the Western worldview and the Muslim worldview. They seem remote from each other both in space and in time. Is communication between the two even possible?

The lawyerly thing to do is to begin by trying to understand the other side’s point of view. I have a few thoughts about this which I’ll post tomorrow.

The Korean Comfort Women Case

by Chris Borgen

[Note: here is Tony D’Amato’s latest post. I am posting it for him because we seem to be having a software glitch. I have isolated the problem to the hyperlinks so I have removed the links from this post so that the full text may appear. Once the problem is fixed, we will put the links back in. ~ Chris]

The next time someone says that international law is “easy,” tell them to plunge into the recent Comfort Women Case and see how deeply they have to dig to figure it out.

Fifteen women from China, Taiwan, South Korea, and the Philippines sued Japan in the Washington D.C. district court under the Alien Tort Statute, seeking money damages for having been subjected to sexual slavery and torture before and during World War II, in violation of international law. Japan, assisted by the United States as amicus, moved to dismiss the women’s complaint on the ground (among others not relevant here) that it is barred by the peace treaties with Japan that extinguished all private citizens’ war claims against Japan. Of course, the plaintiffs responded that the peace treaties did not extinguish their claims but rather preserved them.

The Court of Appeals gave up quickly; they threw the case out on the basis of the “political question doctrine” on June 28, 2005. But as Professor Julian Ku pointedly observed in an Opinio Juris blog, “what is interesting here is that the D.C. Circuit refused to resolve whether or not the claims have in fact been waived by the treaties.” Instead, the Court deferred to the interpretation of the treaties urged by the amicus United States: that the foreign relations of the United States might be adversely affected if its courts were to delve into the meaning of treaties between other states, i.e., treaties in which the United States is not itself a party.

Sounds logical except when you consider that the plaintiffs’ grievance comes within customary international law. The Alien Tort Statute clearly gives them the right to sue in American courts for tortious violations of international law. They are seeking no rights under the peace treaties. It is the defendant, Japan, that is invoking the peace treaties as a defense to their action. If Japan’s defense involves a political question, that is Japan’s problem, not the plaintiffs’ problem.
Thus, as a matter of ordinary logic, the Court had to interpret the peace treaties in order to throw out the case. It was disingenuous for the Court to say that the political question doctrine barred it from getting involved in the interpretation of the treaties.

If that weren’t silly enough, how can the Court say that interpreting a treaty is a political question? The Court actually has the chutzpah to cite Baker v. Carr in support of its position. The first of the Baker tests for a political question was “a textually demonstrable
constitutional commitment of the issue to a coordinate political department.” How could the interpretation of a treaty—the supreme law of the land under the Constitution—possibly be committed to the political branches? From the earliest days of the Republic till June 28, 2005, interpreting treaties was the sine qua non specialty of the judicial branch.

Well, the Court probably figured that it should interpret at least one treaty in order to make everyone feel good. The treaty it chose to interpret had nothing to do with the case. But with their opinion becoming increasingly woozy as it goes along, they might as well act the part of the proverbial drunk who lost a coin and looked for it two blocks away because the street lamp was brighter there.

So the Court looked at the San Francisco Peace Treaty of 1951. (Most of the plaintiffs were not nationals of countries that signed that Treaty.) The Allied Powers who signed the treaty, including the United States which drafted it, waived all claims of their nationals arising out of any actions taken by Japan in the course of the prosecution of the war (Article 14(b)).

That clinches it, the Court said, basically. Goodbye, plaintiffs, and be comforted.

But where does the United States get the right to waive the private claims of its nationals? Louis Henkin, in his “definitive” study of foreign relations law, stated:

when negotiating peace treaties, governments have dealt with … private claims as their own, treating them as national assets, and as counters, ‘chips’, in international bargaining. Settlement agreements have lumped, or linked, claims deriving from private debts with others that were intergovernmental in origin, and concessions in regard to one category of claims might be set off against concessions in the other, or against larger political considerations unrelated to debts.

While it is true that “governments” have done this, isn’t the government of the United States forbidden to do it by the Takings Clause of the Fifth Amendment? I doubt whether Professor Henkin worried about the Takings Clause, because as a State Department attorney (before he turned to teaching) he and his colleagues were accustomed to selling off private claims to foreign governments on a daily basis. The State Department regards private claims as their own bargaining chips, whether or not a peace treaty is involved.

Yet a private claim is as much “property” under the Fifth Amendment as real estate. A peace treaty confiscates these private claims for a public purpose, namely, achieving peace. But the Constitution requires fair compensation for the claims that are taken. Why should American soldiers brutalized during the war in Japanese prison camps, for example, have their claims taken away by the United States in order to ease the reparations burden on their former torturers? They have a right to be compensated by the United States for the value of their claims. But they were up against Secretary of State John Foster Dulles, who was Houdini’s heir in the art of sleight-of-hand.

The United States government simply does not have the power to take private property for a public purpose without paying just compensation. Article 14(b) of the San Francisco Peace Treaty is nothing but a case of unconstitutional overreaching by the Secretary of State and his associates.

Next question (this is sounding more and more like a question on a law school final exam): Is Japan charged with knowledge of the Fifth Amendment of the United States Constitution such that it must have known that Article 14(b) was a sham? Or can Japan’s presumed innocence of American constitutional law mean that under treaty law Japan is entitled to rely on the plain meaning of Article 14(b)?

Students get extra credit if they can cite The Tinoco Arbitration in their answer. Under President Taft’s decision in Tinoco, if A signs a concession agreement with nation B, and if the terms of the agreement are unconstitutional under B’s law, A is charged with knowledge of the unconstitutionality. (As I tell my students in class, if this result sounds ridiculous, at least it greatly increases the billing hours of international lawyers who now have to sift through foreign constitutions when they prepare international contracts.)

Back to San Francisco. There was a near crisis; the delegates from The Netherlands almost walked out of the conference. They told Mr. Dulles that they had no power to waive the private claims of Dutch citizens against Japan. (Clear thinkers, these Dutch!) This threw Dulles into a frenzy; he could not afford a break in the Allied ranks. Working overtime, Dulles engineered an exchange of confidential letters between the Japanese and Dutch representatives which only recently have been declassified. By a letter dated September 8, 1951, the Premier of Japan, Shigeru Yoshida, wrote to Dirk V. Stikker, the Dutch Minister of Foreign Affairs: “it is my Government’s view that Article 14(b) as a matter of correct interpretation does not involve the expropriation by each Allied Government of the private claims of its nationals.” In a return letter, the representative of The Netherlands considered this contemporaneous interpretation of the 1951 Treaty by Japan as sufficient to preserve the private claims of Dutch nationals against Japan, and thereupon signed the Treaty. Prime Minister Shigeru Yoshida thereupon signed the 1950 Peace Treaty on behalf of Japan. Five years later, in 1956, Japan paid $10,000,000 to the Netherlands, an amount that was designated to be turned over to the private Dutch claimants.

Clearly, then, the Japanese delegates had reason to know that Article 14(b) was pretty shaky. Yet both Japan and the United States had no interest in letting anyone know. Dulles was worried that American soldiers might find out about it and assert claims against Japan. But the official treaty language in Article 14(b), summarized in all the newspapers at the time, was obviously sufficient to dissuade veterans from thinking about suing Japan.

Thus the United States government kept up its tradition of socking it to our veterans, a tradition that is live and well today in the course of the war in Iraq.

As far as the language of Article 14(b) is concerned, it is still grinding out its unconstitutional work in the Court of Appeals.

~Tony D’Amato

Does international law bind superpowers?

by Tony D'Amato

I continue to be amazed when educated people say that international law is not binding on the United States, or that international law cannot be enforced against a superpower, or that the United States can violate international law whenever it wants to, or that international law doesn’t exist.

Let’s take the strongest of these claims: the enforcement claim. Let’s stipulate that if international law cannot be enforced against a superpower, then it doesn’t exist.

Hans Kelsen, whose fundamental position was that law is nothing more nor less than a coercive system, argued in 1948 when he drew his attention to international law that coercion in international law takes the form of forcible reprisals. A state commits a delict (in Kelsen’s useful terminology) when it violates a rule of international law. The state that commits a delict opens itself up to a reprisal by other states. A reprisal is a kind of countermeasure, a tit-for-tat retaliation. The most important characteristic of a reprisal is that it would be a delict if standing alone. What saves it from being delict is that it may permissibly be taken, under customary international law, in retaliation for a delict.

Kelsen came to the conclusion that international law is a coercive order because it is enforced through the reprisal mechanism. I think I will have no difficulty in persuading you, at least, that this is exactly what happens under a treaty.

Suppose nation A decides to violate Article 13 of a treaty it has entered into with states B, C, and D. Under the general customary rule of reciprocity, A’s violation of Article 13 immediately releases B, C, and D from observance of Article 13 in their dealings with A. Of course, A already took this into account when it decided to violate Article 13. A went ahead with the violation because it calculated that its benefit in violating Article 13 exceeded the cost of releasing B, C, and D from their corresponding obligations of Article 13.

But treaties are “package deals.” State B, for example, might have signed on to the treaty because Article 13 was especially beneficial to itself even though Article 8 was costly even though it was especially beneficial to A. All four nations were able to agree on the final treaty language because there were goodies in the treaty package for all of them.

So now A comes along and decides to abrogate Article 13. We have just postulated that B is the leading beneficiary of Article 13 and would not have signed the treaty if Article 13 had been omitted. Therefore, if B’s remedy for A’s breach were confined to the reciprocal remedy—that is, the release of B from Article 13—that would not be good enough. Article 13 was never onerous to B in the first place, it was only onerous to A.

Enter the customary international law of treaties. Thousands of years ago, and well before the Vienna Convention on the Law of Treaties, the customary international rule developed that allowed a treaty party to retaliate for a breach by disavowing a different provision in the same treaty (in the earliest law, a breach permitted the other party or parties to withdraw completely from the treaty).

This is the quintessential case of a Kelsenian retaliation. In an article spelling all this out, I called it a “tit-for-a-different-tat.” Of course, the reprisal has to be proportionate to the initial delict; if the reprisal went too far, it would itself constitute a new delict. I considered the problem of runaway retaliation in the article.

Now there is only one analytical step left: we go from treaty law to customary law as a whole. Consider all of international law as a huge interconnected system, very much like a huge treaty with every nation as party. A delict by one state invites a reprisal from another state (usually the injured state). In this theoretical model, all the rules of international law are enforceable by tit-for-a-different-tat reprisals.

Suddenly we should see how easy it is to enforce international rules against the United States. There are thousands, perhaps millions, of rules of customary international law, and additional thousands or hundreds of thousands of rules in treaties we have ratified. All these rules give legal entitlements to the United States in millions of areas and circumstances, just as they also give rise to obligations of obedience. The result is that most of the time we do not break rules of international law because of fear of retaliation. As Louis Henkin famously said, “Almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time.”

OK, you want me to be specific. Exactly where and how is the United States vulnerable to forcible reprisals? Certainly by nothing so crude or futile as other countries’ dropping bombs upon the territory of the United States, even though this is the first thing that people think of.

The assets and values of the United States are not confined to its territory. The United States is vulnerable because of its investments and nationals located all over the world. The United States has major financial investments in foreign-owned companies in nearly every state. More importantly, at any given time there are hundreds of thousands of American citizens either traveling or residing abroad. The Census Bureau reports that in 1998 there were over 56,000 Americans traveling abroad (compared to 46,000 foreign tourists visiting the United States). Even more striking are the figures of American citizens residing abroad as reported by the Bureau of Consular Affairs in 1999. There were 27,600 citizens residing in Buenos Aires, 55,500 in Sydney, 250,000 in Toronto, 48,220 in Hong Kong, 75,000 in Paris, 138,815 in Frankfurt, 45,000 in Tokyo, and 441,680 in Mexico City. Among the smaller countries which could become “hot spots,” the Bureau reports 646 American citizens living in Albania, 1,320 in Bangladesh, 1,600 in Bosnia, 440 in Congo, 2,000 in Cuba, 10,000 in El Salvador, 546 in Gambia, 11,000 in Haiti, 18,000 in Israel (Tel Aviv), 8,000 in Jordan, and 6,639 in Kuala Lumpur, and I’ve taken those examples from just the first half of the list. To these figures must be added the many thousands of American military personnel and their dependents on foreign bases.

How many American nationals must a country threaten to make the United States take notice? Just 50 were sufficient in 1978 when Iran arrested that number of American diplomatic and consular personnel in Tehran. The hostage-taking led to severe repercussions in the United States including perhaps the defeat of presidential incumbent Jimmy Carter in the election of 1980. Of course, the World Court ruled specifically that the Iranian hostage-taking was not a reprisal for anything the United States had done. The result, as I spelled out in the article previously mentioned, was that the United States went ahead with its own reprisal against Iran, one that was completely successful in getting all the hostages back unharmed.

Superpower vulnerability is enhanced by the bluntness of the military instrument. For example, even though the United States could have annihilated Iran with a volley of nuclear ICBMs, such a wholly disproportionate retaliation would not have saved the hostages. The global scatter of assets and persons from all nations has virtually assured the universal efficacy of the international reprisal system. Indeed, in a shrinking world, the reprisal system is likely to become increasingly efficient. Perhaps there is a correspondence between the efficacy of peaceable reprisals and the recent findings that there has been a steady decline in the global magnitude of armed conflict following its peak in the early 1990s.

The dark heart of war crimes

by Tony D'Amato

When I was a kid with my eyes glued to the silver screen, I wondered why Ingrid Bergmann and Humphrey Bogart were taking their sweet time in getting out of Paris. There they were with German tanks proceeding relentlessly toward them and the noise of artillery fire in the distance. But where was the Luftwaffe? Where were the Messerschmidts? Why weren’t they dropping bombs on Paris? A thoroughgoing bombardment might have crushed the French spirit and destroyed their will to resist.

Many years later I found the answer. It was indeed true that behind the scenes some of Hitler’s advisers and generals were urging him to bomb Paris and thereby bring the war against France to a speedy conclusion. It was Hitler alone who resisted. And it was definitely NOT because he was afraid of committing a war crime.

Hitler, the would-be architect and lover of Gothic buildings, knew that in a week or two all of Paris would belong to him. Why should he want to destroy his Cathedral of Notre Dame? Why should he want to topple his Eiffel Tower?

The Fuehrer was rediscovering what the ancient Hittites of Mesopotamia knew about wars. From their peace treaties preserved for us in clay tablets, we see their elaborate provisions for memorializing a truce by the use of war reparations and oaths not to resume fighting. The purpose of war, as Quincy Wright summarized with blinding clarity, is to win the subsequent peace. Most of the wars of the past millennium were army vs. army, and not army vs. civilians. It was General Sherman and General LeMay, as I argued in a recent post, who chose the latter. They reintroduced primitive and unspeakable barbarity into modern warfare.

We can think of the Lieber Code, the Hague Conventions of 1899 and 1907, and the more recent Geneva Conventions, as laying down parameters for confining war to force vs. force and prohibiting force vs. value (value being civilians and non-military targets). The phrase “not justified by military necessity” is one way of characterizing the exclusion of “value” targets. War may still be hell but it is not pointless. (Even hell, as theologians envisage it, is not pointless).

So we come down to two competing mind-sets (as often is the case in theorizing about human action). The first is to win the war by destroying the enemy’s capacity to fight (force vs. force). The second is to win the war by destroying the enemy’s will to resist (force vs. value). The rationale of war crimes is to permit the first and prohibit the second.

And that brings us to the title of this blog, the dark heart of war crimes. Consider the case of General Curtis LeMay, who was the subject of one of my previous blogs. LeMay knew that his orders for napalming innocent women, children, and the elderly, constituted war crimes. He even boasted that if the Allies were to lose the war he would be prosecuted as a war criminal. These were macho words at the Officers’ Club after a half-dozen whiskeys. But it wasn’t braggadocio that convinced the brass back in Washington to let him go ahead with his napalming. Rather, it was a diabolic calculation. The reasoning was as follows: the one hope the Japanese can cling to in their peril is that we will obey the laws of war. But if we violate them deliberately and directly target innocent civilians, then we will destroy their will to resist.

In this way, the dark heart of war crimes is to violate them and break the enemy’s spirit. When the military command of the United States allowed LeMay to retrofit his planes with napalm bombs, pure lawless evil was unleashed on earth.

Hiroshima and Nagasaki: war crimes?

by Tony D'Amato

Should President Harry S Truman be regarded today as a war criminal for ordering the atomic bombing of Hiroshima and Nagasaki sixty years ago? If history indicts him for the two events, I would argue that as to Count Two, the bombing of Nagasaki, he was clearly guilty and would have deserved the death sentence. The horror of the initial bombing of Hiroshima on August 6, 1945, has in the public mind all but obscured the follow-up bombing of Nagasaki three days later.

I wrote in 1971 that the Nagasaki bombing “had no military justification and was not needed, after Hiroshima, to ‘demonstrate’ the efficacy of the new weapon.” [The Concept of Custom in International Law 117 (1971)] Although a vast amount of research and writing about the decision to drop nuclear weapons on Japan has come out since I wrote those words, I’ve seen nothing that would challenge my conclusion. Of course if readers of this blog know differently, I hope they would give us all the benefit of their comments.

Not only have I not seen any legal argument that tries to justify the Nagasaki bombing, but there is also a dearth of historical explanation why it occurred at all. I have my own theory. By 1945 the United States had produced three nuclear weapons: two uranium and one plutonium bomb. The first uranium bomb was secretly dispatched to the Pacific theatre before the second one was tested on July 16, 1945, at Alamogordo Range 230 miles south of Los Alamos, New Mexico. Three weeks later the remaining uraniuim bomb was detonated over Hiroshima. My theory, terrible as it sounds, is that (a) we dropped the plutonium bomb on Nagasaki to see if it would work—if it hadn’t exploded, nothing would have been said; (b) by dropping a second bomb so quickly after the first one we would show the Japanese that we would be merciless until they surrendered unconditionally; and (c) the second bomb would lead the world to think that we had many others where that one came from.

As to the legality of the bombing of Hiroshima, there are endless arguments, justifications, excuses, condemnations, and plain misstatements. The most prominent justification is the argument of military necessity: dropping the bomb shortened the war and saved many lives. The best contrary argument, in my opinion, is that the peace terms informally (but very seriously) offered by Japan in June 1945 did not materially differ from the peace terms we actually accepted from Japan in August right after we dropped the bombs.

Our Next Military Attack?

by Tony D'Amato

Our government is presently immobilized, like Buridan’s ass, between North Korea’s nuclear development program and Iran’s. Yesterday Iran removed United Nations seals on uranium processing equipment at its Isfahan nuclear site, making the plant fully operational. At the same time across the world in Beijing a deadlock was reported in the six-power nuclear disarmament talks. North Korea intends to go ahead with its “civilian” nuclear program even though other nations believe that it has already produced enough fissionable material for several nuclear bombs.

There is no greater threat to our national security than nuclear weapons in the hands of North Korea or Iran. It’s coming to a head now because of the perceived failure of our invasion of Iraq in March, 2003. I submit there were two primary reasons behind our decision to invade. First, Saddam Hussein had the financial resources in a brief period of time to purchase and assemble nuclear weapons. Although we knew when we invaded that Saddam did not possess WMDs, once he smuggled them in our ability to invade would have become impossible. Second, a quick and successful removal of Saddam’s government would have sent the most powerful of messages to the other “rogue” nations: don’t even think of going nuclear. It was a logical game plan deeply rooted in our national security.

The “failure” that I mentioned above occurred after the invasion was successfully completed. We had absolutely no idea how to go about pacifying Iraq. Our idiotic blunders of occupation were painfully evident as they were being committed, and I lack the incentive to try to recount them here. Suffice it to say that all the world know how we have snatched defeat from the jaws of victory in Iraq.

North Korea and Iran must figure that the United States is a paper tiger. They will keep pushing on their nuclear development programs until we reach the breaking point.

You should know that I’m a real hawk when it comes to nuclear proliferation. Back in 1981 I was practically the only international lawyer in the United States to support Israel’s bombing of the Iraqi nuclear reactor in Osiraq. Maybe I’m overly sensitive about this issue, but I predict that, with practically no notice, the United States will bomb and destroy either the Iranian or North Korean nuclear installations.

History’s Two Worst War Criminals

by Tony D'Amato

Many of our younger international scholars are rightfully insisting that nations own up to their past atrocities. They are pressing Japan to fully disclose the enslavement of Korean “comfort women” who were forced to accompany the rampaging Japanese armies in China during the second world war. The scholars are demanding that Serbia, Croatia, and Bosnia give a full accounting of the war crimes they committed in former Yugoslavia in the last decade of the twentieth century. They are calling upon Turkey for full accountability of the Armenian massacres of 1915.

But our credibility becomes eroded if we conceal our own past. We should be calling upon our own government to acknowledge the war crimes that have sullied American history. To some extent lawyers are doing this with respect to our pre-Union war crimes against Native Americans. Yet nothing can be as dramatic as the personification of war criminality. I suggest we should begin calling specific attention to the two persons whom I will nominate below as the worst war criminals in human history. I omit Stalin and Hitler because the genocides they unleashed should not be labeled as war crimes even though the number of victims was in the millions. (Stalin’s genocide took place in the 1930s, and Hitler’s holocaust actually ran counter to the German war effort.)

Here are my two nominees about whom too much attention cannot possibly be paid:

GENERAL WILLIAM TECUMSEH SHERMAN. During the Civil War, General Grant insisted that the defeat of Confederate armies was the first and foremost objective of Union strategy. Disobeying this policy, General Sherman set forth on a march to Savannah and the sea on November 15, 1864. He led his Union troops away from every Confederate army camp or stronghold. Instead, his army proceeded through the soft belly of the South, burning and destroying the civilians, their homes, their property, their farms, their food, their entire countryside. They murdered the children and the elderly, raped the women and then shot them, and stole every valuable they could get their hands on. Today General Sherman is featured in high-school history texts for saying “War is hell.” But nevertheless there is some controversy about him. There are parents who object to the use of the word “hell” in textbooks that their teen-age children are required to read.

GENERAL CURTIS LE MAY. In air campaigns against Japan in 1944 and 1945, General Curtis LeMay of the U.S. Army Air Corps also defied the established wartime policy of the United States. That policy called for precision daylight bombing of military targets. Instead, LeMay retrofitted his planes with napalm cannisters (jellied gasoline), and dropped them at night over the northern suburbs of Tokyo, which were then the most densely populated areas in the world. Of course there were no men of fighting age present; there were only women, children, and the elderly packed in their wooden homes. On one evening, March 9, 1945, LeMay’s pilots were particuarly lucky: there was a brisk wind that carried the flaming napalm across wide distances. The heat that was generated was so great that the few people who could get out of their homes in time and jump into the nearest river or lake were boiled to death. General LeMay had successfully presided over the murder of 100,000 innocent people. He also had a quip to give to posterity: “There are no innocent civilians, so it doesn’t bother me so much to be killing innocent bystanders.”

When I participated on a war crimes panel at West Point some years ago, I brought up LeMay’s name as an arch war criminal. Despite my saying this in a room packed with cadets and high brass, no forcible action was taken against me. Perhaps the reason for the restraint was that the West Pointers were prepared for remarks such as mine. All eyes turned to one of the observers in the first row, an Army officer who was also a professor at West point. After standing up and establishing his credentials as a major student of aerial warfare, he sharply disputed my assertion that LeMay dropped bombs on non-military targets. He said that the women in the targeted area were active participants in furthering the Japanese war effort: they were darning socks and mending army uniforms.

Cuba, the Guantanamo Treaty, and the International Court of Justice

by Julian Ku

I only recently noticed this op-ed by Cuba expert Wayne Smith, a former head of the U.S. Interests section in Havana, noting that Cuba could easily claim the use of Guantanamo Bay as a detention center violates the Agreement between the United States and Cuba for the Lease of Lands for Coaling Stations, the treaty which is the basis for U.S. control of Gitmo. As Article II of that agreement makes clear,

The grant of the foregoing Article shall include the right to use and occupy the waters adjacent to said areas of land and water, and to improve and deepen the entrances thereto and the anchorages therein, and generally to do any and all things necessary to fit the premises for use as coaling or naval stations only, and for no other purpose.

Presumably, the U.S. argument would be that detention center is “necessary to fit the premises for use as a … naval station…” but it doesn’t seem all that strong.

Now Cuba has a pretty good legal argument in search of forum. It might try suing the U.S. in federal courts, but would face innumerable obstacles, not the least of which is that the Agreement may or may not be a treaty, and even if it is a treaty, it may be a political question, and even if it is not a political question, the U.S. government would probably have sovereign immunity from such a suit.

As the op-ed suggests, Cuba might also try the ICJ, but neither Cuba nor the U.S. recognizes the compulsory jurisdiction of the ICJ. Cuba might nonetheless seek a General Assembly resolution pursuant to Article 96 of the U.N. Charter seeking an advisory opinion from the ICJ on whether the U.S. is in violation of the lease. Although merely advisory, such an opinion would embarrass the U.S. further and give Cuba a chance to further needle the U.S. The ICJ has shown itself to be willing to issue controversial advisory opinions (see the Israeli wall decision from last year) so this could actually happen. And the new U.S. Ambassador to the UN might have something useful to do after all….

Don’t evade ‘em, invade ‘em!

by Tony D'Amato

I didn’t intend to sound disparaging about humanitarian intervention, but when the above title occurred to me I just couldn’t resist using it. Come to think of it, Howard Cosell would have been pleased; the title “tells it like it is.”

The international legality of humanitarian intervention is on my mind these days because I’m trying to scribble out a Foreword to the third edition of Fernando Teson’s book of that title (the “humanitarian” title, that is, not the “invade ‘em” title).

A warm and enthusiastic Fernando Teson burst upon my scene at Northwestern Law School in 1982. He had served four years in the Argentine diplomatic corps and also had been an associate professor of international law at the University of Buenos Aires. We had agreed by letter that I would supervise his S.J.D. dissertation. So naturally one of the first things we discussed is what he should write about. He said that, given his experience in diplomacy, he might like to write a book on the privileges and immunities of diplomats. I said something like, “Gee, that’s great! The public is just clamoring to find out a lot more about the privileges and immunities of diplomats.” “So what would you suggest?” he said, deftly kicking the ball back to my side of the field. “Let me think about it for a day or so,” I replied.

I was stalling. I knew of the perfect topic for Fernando, but it was something that I had vague plans to write up myself. Nevertheless, when we had our next meeting, I said, “How about humanitarian intervention?” Perhaps as I said it I harbored the faint hope that he would turn it down. To the contrary, the idea for him was love at first sight.

His dissertation was so good that when it was published by Transnational Publishers, Inc., it came to define the field of humanitarian intervention in international law. Early evidence of this was the fact that the establishment folks in and around the American Society of International Law seemed to have taken a vow of silence about Fernando’s book. As late as 1991, a published symposium on Right versus Might in international law, featuring such luminaries as Louis Henkin, Stanley Hoffman, Jeane J. Kirkpatrick, and David J. Scheffer, examined the idea of humanitarian intervention from many angles but never once referred to Fernando’s work, not even in the “suggested readings” in the back of their book. Why indeed should they let an outsider like Fernando Teson “intervene” into the scholarly world over which they reigned supreme?

Without them, or maybe despite them, the book has thrived and taken on a life of its own in both political and legal global studies. During the two years he worked on his project at Northwestern, Fernando and I were in complete accord that if the morality of humanitarian intervention weren’t right, then its legality one way or the other would be of distinctly secondary interest.

Fernando’s conviction that humanitarian intervention is morally privileged if not required has coalesced over the years since 1982 into three postulates that I can pre-quote from his third edition:

(1) Governments are, internationally and domestically, mere agents
of the people. Consequently, their international rights derive from
the rights and interests of the individuals who inhabit and constitute
the state.

(2) Tyrannical governments forfeit the protection afforded them by
international law.

(3) The fact that all persons have rights entails the following
consequences for foreign policy . Governments have:

(a) The obligation to respect human rights at home and abroad;

(b) The obligation to promote respect for human rights globally;

(c) The prima facie obligation to rescue victims of tyranny or
anarchy, if they can do so at a reasonable cost to themselves.
This obligation analytically entails the permission to rescue
those victims—the right of humanitarian intervention.

If any of you who are reading this blog are teachers of international law, allow me to suggest that early in the course you distribute the above three revolutionary postulates to your students or display them in Power Point. Let your class unpack them, deconstruct them, examine them from every angle.

Agree with him or not, Fernando Teson has staked out a position that can no longer be ignored by anyone—not even by the self-anointed guardians of public international law.

A Partial Defense of Hamdan and Judge Roberts

by Julian Ku

I also want to welcome Professor D’Amato to Opinio Juris. And, in the typical Opinio Juris fashion, I want to welcome him by immediately taking exception to some of the arguments he put forward in his inaugural post.

I agree that Judge Roberts should be held responsible for the D.C. Circuit’s decision in Hamdan as much as if he had written the opinion for the Court. I simply don’t find that decision as troubling as Professor D’Amato seems to.

First, I guess I don’t find the D.C. Circuit’s distinction between procedural fairness and jurisdiction that problematic. To be sure, Prof. D’Amato throws up some good examples of why one might want to include a substantive fairness analysis in a court’s inquiry into jurisdiction. But I presume Prof. D’Amato does not want to completely blend the two inquiries together either. After all, there is a useful conceptual distinction here that is not purely law school gamesmanship.

Moreover, I think the D.C. Circuit’s invocation of the jurisdiction-not-procedural-fairness distinction here is defensible on more than merely conceptual grounds. After all, as the next two sentences of the court’s discussion of this section points out:
Hamdan’s claim therefore falls outside the recognized exception to the Councilman doctrine. Accordingly, comity would dictate that we defer to the ongoing military proceedings. If Hamdan were convicted, and if Common Article 3 covered him, he could contest his conviction in federal court after he exhausted his military remedies.

The Councilman doctrine (420 U.S. 738), as I understand it, permits a federal court to take jurisdiction over a military court-martial proceeding, but instructs federal courts to refrain from doing so unless the petitioner can show harm other than the fact that his case will be tried in a military justice system. In essence, it is a comity doctrine and the DC Circuit applied it quite reasonably in this case. If Hamdan is convicted by the military commissions, the federal courts still have jurisdiction to review the conviction, but only after Hamdan has exhausted all his military justice remedies. But the bottom line: there is a procedural safeguard built in to this analysis resting on existing Supreme Court doctrine that allows Hamdan to challenge both the jurisdiction of the military commissions but also their substantive procedural fairness in federal court.

This leads me to my second point of disagreement with Prof. D’Amato. I defer to his description and analysis of Tadic and its importance to the development of international criminal law and procedure. But I can’t fault Judge Roberts, the D.C. Circuit panel, or Hamdan’s lawyers for not using this decision in their arguments and analysis. No doubt Tadic has some similar implications, but Tadic did not involve a challenge under Common Article 3 and therefore is not really strong precedent for Hamdan here. It certainly would be difficult for a court to ignore existing Supreme Court doctrine about the scope of a federal court’s jurisdiction over the military justice system by citing an international tribunal decision interpreting a different set of international treaties and legal rules.

Hamdan is one of the most interesting decisions Judge Roberts has ruled on but this decision will almost certainly be ignored at his confirmation hearings for at least two reasons. First, on a political level, attacking Roberts for allowing a military commission trial to go forward for Osama Bin Laden’s driver is just a non-starter, even if Hamdan has a good case on the merits. Second, as a legal matter, I think the decision was a good one, and certainly a defensible one.

Mr. Roberts (the nominee, not the movie)

by Tony D'Amato

As the law school world peruses the briefs and opinions of Supreme Court nominee John Roberts, one of his important cases that just about everyone omits is Hamdan v. Rumsfeld (D.C.Cir. July 14,2005). The reason for ignoring it is, presumably, that it was a 3-0 decision in which Judge Roberts remained silent.

I suggest that his silence speaks rather loudly against him. It would have cost him nothing to append a brief concurring opinion. His decision not to do so tells us that he is happy with the court’s opinion in every respect.

Hamden was just the right case for a concurrence. I will put aside, with reluctance, the many fascinating issues in the case such as the President’s authority to constitute military commissions, the question whether we are “at war” with Al Quaeda (Mr. Hamden admitted he was Osama bin Laden’s personal driver in Afghanistan between 1996 and 2001), whether Hamden is entitled to prisoner-of-war treatment, and whether the 1949 Geneva Conventions are self-executing under United States law.

But tucked away toward the end of the court’s opinion is an argument that a supposedly bright jurist like Judge Roberts should have picked up on:

Suppose we are mistaken about Common Article 3. Suppose
it does cover Hamdan. Even then we would abstain from
testing the military commission against the requirement in
Common Article 3(1)(d) that sentences must be pronounced
“by a regularly constituted court affording all the judicial
guarantees which are recognized as indispensable by
civilized peoples.” Unlike his arguments that the military
commission lacked jurisdiction, his argument here is that
the commission’s procedures–particularly its alleged failure
to require his presence at all stages of the proceedings–fall
short of what Common Article 3 requires. The issue thus
raised is not whether the commission may try him, but rather
how the commission may try him. That is by no stretch a
jurisdictional argument. No one would say that a criminal
defendant’s contention that a district court will not allow
him to confront the witnesses against him raises a jurisdictional
objection.

This is just the sort of ersatz law-school reasoning that should be suppressed whenever it rears its ugly head. “The issue thus raised is not whether but how.” Indeed! Just who is the court kidding here? (Themselves, is probably the right answer.)

One simply cannot separate entirely the question of procedural fairness from jurisdiction. Suppose the military commission was well known for reaching its decisions in less than one minute per defendant. Suppose further that its members prided themselves on never reading any briefs. Suppose the commission barred oral argument. Indeed, let’s go to the extreme: suppose the only issue the commission debates is whether the defendant had an Arabic-sounding name. If he did, then he was guilty. Could our court of appeals, in of all things a habeas corpus proceeding whose pedigree extends back to the Magna Carta, say without tongue-in-cheek that even this extreme level of procedural unfairness would be irrelevant to the question of jurisdiction?

If Judge Roberts, or his two colleagues, or the lawyers defending Hamdan, had had any knowedge of international law, they surely would have known of the Hague Tribunal’s milestone decision in the Tadic case [Dusko Tadic, IT-94-1]. Tadic had raised some strong arguments to the effect that the International Criminal Tribunal for Former Yugoslavia was not a legally constituted tribunal and hence lacked jurisdiction over him or any other accused person. The Tribunal answered these arguments as best it could. Then the President of the Tribunal, Antonio Cassesse, memorably added that the test of the legality of the Tribunal’s jurisdiction will ultimately be the fairness of its procedures.

Welcome to Professor Anthony D’Amato

by Chris Borgen

We are very fortunate (and a little daunted) to have Professor Anthony D’Amato of Northwestern University School of Law guest blogging with us for the next two weeks.

For most of our readers, Tony won’t need any introduction. Besides his extensive list of publications (over 20 books and 110 articles) on international criminal law, human rights, foreign relations law and a host of other international legal topics, Tony was the first American lawyer to argue (and win) a case before the European Court of Human Rights, was lead counsel for the first defendant charged with genocide before the ICTY, and has litigated a number of human rights cases around the world. And, to my knowledge, he is the only international law professor to show up in a graphic story (“comic strip” would not be an apt description).

We are looking forward to our discussion over the next two weeks. Welcome to Opinio Juris!

One More Reason to Dump the United Nations Commission on Human Rights

by Julian Ku

The United Nations Human Rights Commission is an easy target for UN critics, but this doesn’t mean that they don’t deserve the disdain and contempt that is usually heaped on them. Case in point: eight UN human rights experts have issued a statement condemning the current US-Russia sponsored “Road Map” talks between Israel and Palestine because the negotiations currently do not fully adhere to the ICJ’s advisory opinion last summer condemning Israel’s wall of separation as a violation of international law.

Now I may not be overly impressed with diplomacy, but I’m far less impressed with idiotic legalistic interventions into a delicate and complex territorial negotiation currently taking place between Israel and Palestine. The last thing these negotiations need is a statement of eight “special rapporteurs” claiming that ongoing negotiations may come into conflict with an advisory opinion issued by the ICJ.

As I’ve suggested before in the context of demands by these same rapporteurs to visit Guantanamo, these special rapporteurs are given fairly broad mandates to opine on anything they want, whether or not the full UN Commission has approved their statements. And, as this rather silly and potentially stupid, intervention suggests, the special rapporteurs may need to be reformed as aggressively as the Commission itself… preferably, out of existence entirely.

Iraq and the International Criminal Court: Decision Time

by Julian Ku

This report suggests that the international and domestic human rights groups have turned up the pressure on Iraq’s new government to join the ICC. Indeed, this report indicates that the Iraqis drafting their permanent constitution are considering an “international law” supremacy clause that would subordinate domestic Iraqi laws, including constitutional laws, to international treaties, thereby giving institutions like the ICC potentially broad authority if Iraq signs up.

Now the Iraqi constitutional process has lots of different problems, and the role of the ICC and other international organizations is probably not on the top of the list. But it is far from trivial if Iraq signs the ICC treaty, since it will be exposing both U.S. and its own military forces (currently engaged in a desparate anti-insurgent struggle) to oversight by the ICC. This may or may not be a good thing depending on one’s faith in the judgment of the ICC, but it is certainly a rather large and dangerous step for Iraq’s interim government.

More on Comparative and Foreign Sources in US Courts

by Peggy McGuinness

Elizabeth Kandravy Cassidy has posted an interesting response to my posting on the relevancy of European developments in gay marriage to the debate in the US. Here is the link back.

ICJ Campaign Season Begins

by Julian Ku

It’s ICJ selection season with five of the 15 ICJ seats open for replacement. New Zealand is fast out of the box, as this article suggests, by sending its candidate on a global tour to drum up support. Of course, this is very early because, as I understand it, the selection won’t be made until the fall of 2006 with the new judges seated in February 2007. (Update: I’ve been corrected by a knowledgeable source that tells me the new judges will be selected this fall and seated in February 2006).

The ICJ selection process is not exactly high-profile, but it is prestigious enough so that countries like New Zealand are willing to pony up to get their judges appointed. It will be interesting to see which countries will push to get their judges appointed and how much effort they will put into this process.

The Relevancy of Diplomacy

by Peggy McGuinness

Let me try to unpack several of the assertions Julian made in his argument that the UN ambassadorship (wait, all ambassadorships!) is “irrelevant.”

Does the job of UN ambassador matter? It matters on two levels. First, it matters to the foreign policy making process as much as the President decides it will matter. Over the years, some presidents have made it a cabinet-level job, most have made sure that the UN Ambassador was a member of the National Security Council principals committee (along with the Secretaries of State and Defense, Director of Central Intelligence, etc.). So the extent to which the UN ambassador has a strong voice in policy-making within the government depends on what the particular administration wants to do with the job. (On this first point, it appears that Bolton will not be given a seat at the cabinet table, and that he will officially have to report through the Assistant Secretary of International Organizations up to Secretary Rice.) Second, it matters to the process of decision making at the UN and to promoting the US agenda at the UN. A lot goes on at the UN besides the rare televised meetings of the Security Council. The UN ambassador has to manage the US team in NY, the process and yes, to actually meet with UN management and counter-parts from around the world, and communicate US views on a range of issues to those counterparts.

Does it matter who is UN ambassador? Well of course. Historically, we remember those UN ambassadors who were present at certain crises moments (Adelai Stevenson and the Missiles in Cuba come to mind). But we also remember those who made a difference to the organization and the US relationship with it, e.g., Richard Holbrooke. Holbrooke made a difference at the UN beyond what the administration might have envisioned for the job. He directly and successfully lobbied across party lines to get Congress to pay US arrears to the UN. He succeeded in part through sheer force of personality, in part through convincing the Hill that paying the dues would be central to the US ability to clean up some of the messes at the UN and to get a fairer funding structure in place. And he was right.

I’ve blogged before on why the question of personality might be relevant to how the US is able to forward its agenda in NY. But Julian dismisses all high-level diplomacy — “ambassadors almost never matter, one way or another.” Even (perhaps especially) an uber-realist would recognize that the ability to effectively manage US bilateral (and multilateral) relationships around the world is at the heart of our national security. It’s not for nothing that we have a professional Foreign Service, that ambassadors are appointed by the President and confirmed by the Senate, and that, when in those positions they serve as personal representatives of the President. It is the curse, I suppose, of diplomacy that it is most successful when it is least noticed. That is, when nothing bad happens. Fortunately, the US Senate and even this administration do not share Julian’s view on the complete irrelevancy of diplomacy. Secretary Rice appears to recognize that the Bush administration ignored the UN at its peril during the first four years. See this post at America Abroad on the contours of the new policy – including the reform agenda — that has been pursued since early this year.

The problem with Bolton has less to with whether he is smart, conservative or blunt-speaking, and more to do with whether he will be effective. Of course, if you don’t think the UN matters, and you don’t think diplomacy matters, then we don’t need an ambassador at all, much less an effective one. But in making the recess appointment, Bush seemed to indicate that it was vitally important that we have an ambassador there (not withstanding the fact that a career foreign service officer has been competently filling the job temporarily for the past few months). And all the objections to Bolton seem to provide evidence that the public cares what happens at the UN. If that is the case, then we should all want someone there who will be an effective diplomat and an effective member of the policy team. At this point, the extent to which Bolton himself is “irrelevant” is entirely in the hands of the President and his Secretary of State.

Bolton’s Irrelevancy

by Julian Ku

I don’t really understand why Bolton’s nomination (and now recess appointment) has drawn so much criticism and, for that matter, why conservatives are so excited about his nomination. Bolton appears to be a smart, experienced, conservative guy. He isn’t going to figuratively blow up the U.N., but he isn’t going to go out of his way to be nice to the U.N. either.

But in the end of the day, what Bolton does as U.N. Ambassador pretty much won’t matter, one way or the other, because (apologies to Peggy) ambassadors almost never matter, one way or the other. This is true even for U.N. Ambassadors (especially U.N. ambassadors). Quick: name the last 5 U.N. Ambassadors? The only ones we remember are the ones who were eventually promoted (e.g. Madeleine Albright or John Negroponte). Even U.N. reform, supposedly so important that we either can’t allow/must support Bolton appears to be moving along smoothly, according to the NYT.

Finally, even if UN reform makes this nomination different, critics of Bolton keep forgetting that Bolton’s main job will be to try to convince 2/3 of the Senate to approve a U.N. Reform Treaty and that the problem there will not be Sen. Ted Kennedy, but the conservatives who have been supporting Bolton. If I wanted to help the UN, I would want the most conservative UN Ambassador from the U.S. as possible, to give credibility to any reform package presented. After all, folks may think Bolton is conservative, but he is a real softy on the U.N. compared to some of the members of the U.S. Senate.

Bolton Appointed

by Chris Borgen

President Bush has appointed John Bolton in a recess appointment. CNN’s story is here. The BBC has a report here.

While President Bush has gotten his way with the Bolton nomination, despite not being able to muster the 60 votes needed to break the filibuster, this is likely to be a Pyrrhic victory at best. With the looming free-for-all this fall over Security Council reform, the last thing the U.S. needs is an envoy who doesn’t seem to even have the support of his domestic government. And, coupled with scepticism as to whether Bolton can even make the type of bargains that will be necessary, the President has sought a path that may win him plaudits from U.S. conservatives, but is unlikely to lead to effective U.S. foreign policy.

This is particularly sad given recent Washington whispers for other possible candidates for the post of U.N. ambassador that had suport from both sides of the aisle. Perhaps the most interesting name floated was Newt Gingrich. But this was the road not taken.

This is also particularly troubling given the gravity of issues facing the U.S. and the U.N. come the opening of the General Assembly this fall. Between Security Council reform, the ongoing Iraqi situation, and nascent crises such as the possible collapse of Haiti’s government, we need someone in the U.N. who actually wants the U.N. to succeed in its tasks, who understands the mechanisms of international organizations, and who has the diplomatic clout to rally support behind U.S. interests.

No one has ever made a credible claim that John Bolton is that person.

Update:

I edited this post to weed out a typo caught in the comments.