Archive for
October, 2005

Hariri Report Leads to Security Council Action

by Chris Borgen

Earlier today the UN Security Council issued Resolution 1636 demanding that Syria cooperate with the Hariri investigation “or else.” OK, it didn’t really say “or else” but that was the gist of it. See a summary of main points here; UN press report here.

The UN press report explained that

The resolution called on all States to prevent the entry or transit of suspects designated by the Commission or the Government of Lebanon and to freeze all assets of such person on their territory.

Moreover,

The resolution determined “that any involvement of any State in this terrorist act would constitute a serious violation by that State of its obligations to work to prevent and refrain from supporting terrorism.”

As CNN summarized:

Last-minute diplomatic haggling deleted a direct reference to the threat of sanctions on the Syrian government, but the effect of Monday’s resolution is the same.

The resolution is under Chapter 7 of the U.N. Charter, which holds open the ultimate possibility of the Security Council considering the use of force with failure to comply.

Russia and China simply would not have voted for stronger wording. But this nonetheless puts Syria in a fairly tight spot as the Security Council’s Chapter VII authority is the diplomatic equivalent of ending your demand with “or else.” Resolutions under Chapter VII must be followed by UN members States. The specifics of that “or else” may require another resolution but under Chapter VII no options are off the table, as certain Washington politicians are fond of saying.

The Hariri Report was the step that made getting a Chapter VII resolution politically feasible. Heated rhetoric alone from the U.S. could not have done this. Now UN member States are required to assist in the investigation. If Syria persists in stonewalling, then UN member States may soon be required to have sanctions against Syria.

But still, isn’t this less direct than the U.S. going in and trying a little regime change? Well, yes, but the point is that what sometimes seems to be the most direct method (hey guys, let’s topple a government!) can be the least effective. Rather, here we see the role of consensus building and coordination. Moreover, as I mentioned in my previous post on this topic, the UN’s role gives a legitimacy to the process that gung-ho unilateralism simply would not have had. And, with legitimacy, we may get a better and more sustainable outcome.

UPDATE
Christopher Le Mon has commented that the full text is available here. Thanks for the link.

Judge Alito and Forced Abortions

by Roger Alford

A quick review of Judge Alito’s decisions suggests very few that have international law implications. One recent decision that merits significant attention is Chen v. Ashcroft, 381 F.3d 221 (3d Cir. 2004). At issue is whether the fiancée of a woman who was forced to undergo an abortion in China is entitled to asylum.

Factually the case is extraordinarily sympathetic. A young Chinese couple in China become pregnant, want to marry, and do not want to abort their child. But China has two offensive policies: forced abortions and severe restrictions on the permissible age of marriage. Couples in China are prevented from getting married if they are not of marriageable age (25 for a man and 23 for a woman). Chen and his fiancée were 19 and 18 at the time they sought a marriage license. When they attempted to secure a marriage license they were refused. When his fiancée was finally found by Chinese authorities, she was forced to undergo an abortion in her eighth month of pregnancy.

A few key legal aspects of the case are important. First, our asylum law only affords protection for specific reasons: a well-founded fear of persecution on the basis of race, religion, nationality, membership in a particular social group, or political opinion. Second, these decisions are initially made by immigration judges, and federal courts grant Chevron deference to their decisions. Past immigration decisions recognize that a forced abortion is persecution on the basis of political opinion and that a woman and her spouse could secure asylum on that basis. But in Chen the agency held that a fiancée of a woman forced to abort did not enjoy such protection. Thus, marital status was the defining distinction that precluded Chen from securing asylum because his fiancée was forced to abort.

The Third Circuit, per Judge Alito, upheld the agency determination. Judge Alito found that there was a rational basis for the distinction. The immigration authorities use “marital status as a rough way of identifying a class of persons whose opportunities for reproduction and child-rearing were seriously impaired … as the result of the performance of a forced abortion or sterilization on another person.” The decision to adopt a bright-line rule and not extend this protection to unmarried partners was found to satisfy the requirements of Chevron deference. To conclude otherwise would force the agency to make difficult distinctions between unmarried persons who had a truly close relationship with the woman forced to abort and those persons who do not.

The most interesting section of the opinion was the question of whether China’s refusal to permit Chen to marry was itself persecution. Judge Alito opined that it was not.

[A]lthough minimum marriage ages of 23 and 25 are contrary to our traditions and international practice, we cannot go so far as to say that enforcement of these laws necessarily amounts to persecution. American constitutional law recognizes marriage as a fundamental right … but all states impose minimum marriage age requirements, and we assume that these laws are constitutional. Laws setting reasonable minimum marriage ages are also recognized as legitimate and desirable under international human rights law. It is certainly true that marriage laws in this country set the minimum age for marriage considerably below 23 or 25. Almost all states set 18 as the minimum age to marry without parental consent…. It is also true that the marriage laws of other countries generally set the minimum marriage age at 18 years or less, and it appears probable that no other country sets the minimum as high as does China. A law or practice, however, does not necessarily rise to the level of “persecution” simply because it does not satisfy American constitutional standards or diverges from the pattern followed by other countries. As we have noted, persecution is an “extreme” concept that “does not encompass all treatment that our society regards as unfair, unjust, or even unlawful or unconstitutional.” Here, we cannot say that the BIA was bound to conclude that minimums of 23 and 25 amounted to persecution.

There are several interesting thoughts regarding the Chen decision. Admittedly this is not a constitutional case and therefore it provides little to no information on his views of abortion in that regard. In addition, it is very hard to draw firm conclusions regarding Judge Alito’s stance on key issues in a case that involves Chevron deference. The government rarely loses in a case involving such a deferential standard. If our immigration authorities had said yes it was persecution, he likely would have deferred to that decision as well. But Chen does provide insights on Alito’s decision-making.

First, it appears Judge Alito takes executive deference very seriously. This is a borderline case of an agency refusing to broaden a rule the spirit of which could encompass Chen’s situation. Second, Judge Alito appears to embrace cultural diversity in human rights. He is unwilling to presume that a practice that does not satisfy American standards and near uniform foreign practice necessarily constitutes persecution. Third, the decision is neither pro-life nor pro-choice. It is pro-deference. Forced abortions deny choice and deny life. But the question is not whether the practice is abhorrent, which he no doubt would agree. The question is whether a fiancée of someone who suffered such a terrible procedure is entitled to asylum based on a well-founded fear of persecution. Our immigration authorities said no, and Judge Alito was unwilling to find that conclusion to be wholly irrational.

Canada Charges Rwandan of Genocide

by Roger Alford

This is an interesting story. Under Canada’s Crimes Against Humanity and War Crimes Act, Canada has charged a Rwandan living in Canada of genocide, war crimes, and crimes against humanity. Under Article 8 of the Act, Canada can charge anyone for genocide if the crime or the criminal has a Canadian nexus. This is very broadly defined to include (1) citizens or employees of Canada who committed crimes; (2) citizens or employees of a state engaged in armed conflict against Canada; (3) persons who committed crimes against Canadian victims; (4) persons who committed crimes against a Canadian ally in armed conflict; and (5) persons present in Canada after the crime was committed.
This statute thus embraces an expansive approach to prescriptive jurisdiction that includes the nationality principle, passive personality, and universal jurisdiction. In this case, Desire Munyaneza was a refugee in Canada who allegedly led attacks on Tutsis at the National University of Rwanda. Canada therefore must prosecute based on universal jurisdiction.
The Rwandan Justice Minister welcomed Canada’s move, stating that “Canada has demonstrated that it won’t sit and watch genocide perpetrators roam about its territory,” Mukabagwiza said. “Our only surprise is that other countries are still sheltering genocide suspects. They should learn from this example.”
What is unusual about Canada’s act is the notion of domestic criminal prosecution of war crimes and genocide at a time when we have international criminal tribunals that also are entrusted with this responsibility. It appears to overlap with the authority of the ICTR to investigate and prosecute war crimes in Rwanda.
Which raises the larger question if countries such as Canada exercise jurisdiction to prosecute alleged war crimes, we will have the very real possibility of concurrent jurisdiction in multiple fora–the national court where the offense took place, the national court of the victims, the national court where the alleged criminal is present, and the relevant international criminal tribunal (in this case the ICTR). We have long had the theoretical possibility of concurrent jurisdiction under notions of universal jurisdiction, but it now appears to be becoming a reality.
How these competing jurisdictions will coordinate their prosecutions remains to be seen. Whether the international criminal tribunals will take cognizance of third country prosecutions as part of their determination of whether to prosecute is uncertain.
And whether these third country national courts will adopt the ICC’s approach of complementarity and deference to the primary national court prosecution is even more uncertain. Certainly the Spanish judge that issued an arrest warrant against three American soldiers exonerated by the United States military justice system suggests that in at least some circumstances they will not.

ICJ Watch: Court’s President Notes "Unprecedented Workload"

by Julian Ku

This past week, the President of the ICJ Shi Jiuyong addressed the U.N. General Assembly as part of of the ICJ’s submission of its annual report (which can be found here, the President’s speech can be found here). It was, of course, very boring. But it also reveals that the ICJ doesn’t realize the seriousness of the problem I have complained about here and here: the ICJ’s unbelievably light workload and its ridiculously low productivity.

The ICJ President’s speech blithely noted that in the past few years, the ICJ has made great strides to improve its organization and its speed in resolving cases. In the past year, the ICJ reduced its docket from 21 to 11, meaning it has resolved 10 cases over the past year. As the President notes, “[t]he level of activity displayed by the Court over the past years is, simply put, unprecedented in its history.”

With all due respect to ICJ President Shi, he is blatantly exaggerating the amount of work the ICJ has done during the past year (although he may be right that even this little amount of work is “unprecedented”).

The ICJ has actually issued one final judgment in a contentious case during the past year: Benin v. Niger, which was an expedited arbitration-like proceeding involving a specially constituted chamber of the court.

It removed eight cases from its docket in one fell swoop by issuing preliminary judgments dismissing Serbia’s (identical) lawsuits against nine NATO countries arising out NATO’s actions in the 1999 Kosovo war. It issued one other preliminary judgment in a dispute between Lichtenstein and Germany dismissing that case from its jurisdiction. It should be noted that the court took five years to remove the Serbia cases and four years to remove the Lichtenstein case, both without reaching the merits of the cases.

In other words, the full ICJ (not counting special chambers) has issued zero final judgments in the past year and essentially two preliminary judgments. It has also held two public hearings.

Obviously, the ICJ President has a duty to present the Court’s work in the best light, especially because his main purpose is to request appropriations from the General Assembly. The ICJ’s budget, in absolute terms, is quite small (about $30 million per biennium). And the ICJ only employs about 98 staff members. So at least the ICJ doesn’t appear to be a bloated wasteful international organization.

On the other hand, it is hard to see exactly why the court needs even this small amount of money and staff to issue three judgments a year (roughly $5 million per judgment). Or why a cash-strapped U.N. should give them any additional funds.

"Outsourcing Authority": Symposium at Albany Law School

by Roger Alford

Albany Law Review sponsored a symposium today on the topic of “Outsourcing Authority: Citation to Foreign Court Precedent in Domestic Jurisprudence.” It included a number of speakers, including Ken Kersch, Susan Karamanian, John McGinnis, John Baker, Mark Tushnet and yours truly. Wonderful debate about Roper v. Simmons, Lawrence v. Texas, Charming Betsy and the general trend toward citation of foreign and international authority.

The most revealing comment came from Mark Tushnet on the subject of constitutional comparativism. He said, “If contemporary U.S. liberals have gotten off the rails they should get back on the rails. So what.” When asked whether this meant we might need to revisit cases such as Mapp v. Ohio, Skokie, New York Times v. Sullivan, and Roe v. Wade in light of international norms that provide lesser protections, he unequivocally said, “Yes.”

Testing the Limits of International Law: Symposium at Univ. of Georgia, Oct. 28-29

by Peggy McGuinness

Peter Spiro and Dan Bodansky at the University of Georgia Law School are hosting a symposium this weekend to discuss and critique Jack Goldsmith and Eric Posner’s informative and provocative book, The Limits of International Law. I discussed the book’s central thesis — that international law is merely a reflection of states acting rationally to pursue their interests in relation with other states — in an earlier post. In addition to Goldsmith and Posner, papers are being presented by Philippe Sands (London), David Golove (NYU), Kal Raustiala (UCLA), Andrew Guzman (Boalt), Ken Anderson (American) and Allen Buchanan (Duke, philosophy). Oh, and yours truly will be presenting as well. If you’re in the neighborhood of Athens (Georgia, that is) come on by. I’ll post some reflections next week.

If Everyone is Corrupt, Does it Matter that the U.N. is Also Corrupt?

by Julian Ku

The final Volcker Independent Inquiry Committee Report has been released (see here). News summaries have generally emphasized the final report’s conclusion that over 2000 companies participating for Oil-for-Food were involved in illegal or at least illicit kickback schemes with the Saddam Hussein Iraqi government. But the report also rightly faults the U.N. itself for failing to prevent or stop such widespread and blatant corruption.

Before Chris jumps on me again for complaining about the U.N. without acknowledging its good qualities, let me say that I think the U.N. can be effective in some cases. And I also find the reports of private companies like Daimler Chrysler or Volvo receiving kickbacks from Saddam Hussein just as damning as the reports of malfeasance at the highest levels of the U.N. Secretariat. The fact that diplomats such as France’s former U.N. Ambassador and politicians like Britain’s George Galloway also appeared to benefit from the scheme is equally troubling. Corruption appears to have been endemic in this program.

Having said that, I do think supporters of the U.N. are underestimating the seriousness of the Oil for Food scandal for the institution’s long-term survival. Petty corruption is one thing, but petty corruption that directly undermines the U.N.’s administration of sanctions against Iraq is quite another.

If the U.N. cannot effectively administer sanctions against Iraq without succumbing to rather easy and blatant corruption by an unsavory figure like Saddam Hussein, it is hard to see why the “international community” should “trust” the U.N. to deal effectively with other serious threats to international peace and security. It is also hard to see why, for instance, the U.N.’s claims that it could effectively monitor Iraq’s weapons program should be taken seriously.

The U.S. government has made many mistakes of its own, and it perhaps deserves to have its good intentions questioned around the world. But the Oil-for-Food scandal reminds us that the U.N. has its own serious problems and that its claims of high-minded disinterested protection of world peace deserves just as much skepticism.

The Breyer-Scalia Road Show

by Roger Alford

Justices Breyer and Scalia have now taken their debate about foreign precedent on the road. They were in Melbourne, Australia this weekend to discuss with Australian High Court Justices Kirby and Heydon the topic of judicial activisim. A summary of the discussion is in a John O’Sullivan column here. (No word yet from the University of Melbourne as to whether the event was recorded or transcribed).

On the subject of relying on foreign precedent, Sullivan indicated that the skeptics at the Melbourne discussion (Scalia and presumably Heydon) feared the countermajoritarian thrust of the foreign precedent movement. “Instead of being ruled by elected representatives in Congress and the presidency, we gradually find ourselves living under laws shaped by a new political elite of international lawyers. ” Makes them sound almost as important as Article 38(1)(d) of the ICJ Statute! Meanwhile proponents of judicial activism (Breyer and Kirby) argued that “judicial activism was essential to save us from the kind of human rights abuses that occurred in the 1930s in Europe — a necessary restraint on the potential oppression of minorities by majority rule…” Sullivan gives more details on the debate. Read it.

A far more amusing version of the discussion is available from a Melbourne law student over at Underneath Their Robes. Favorite quote, “When I saw him [Justice Breyer], I noticed that he was wearing the lapel pin of the French Legion of Honour, which seemed to be taking this whole ‘foreign law’ thing a bit too far.”

Foreign Protection from the Tyrranny of the Majority

by Roger Alford

While on the subject of foreign precedent, the ABA has published a letter and issued a news report that sharply criticizes H.Res. 97, the resolution that expresses the sense that “judicial interpretations regarding the meaning of the Constitution … should not be based in whole or in part on judgments, laws, or pronouncements of foreign institutions unless such foreign judgments, laws, or pronouncements inform an understanding of the original meaning of the Constitution….”

Part of the objection to H.Res. 97 expressed in the letter is that “the founders devised a system whereby the federal judicary was made an independent, coequal branch of government precisely so that it could withstand the ‘tyranny of the majority’ in order to protect the rights of individuals against possible overreaching by the political branches. The federal courts not only have the obligation to faithfully interpret the laws popularly enacted, but also to strike them down if they run afoul of the U.S. Constitution.”

While I’m not particularly impressed with H.Res. 97, does it not strike you as more than a little unusual that the ABA is suggesting that courts might rely on foreign precedents to protect minorities against the tyranny of the majority? Let’s look outside our community to make sure that democratic preferences within our community are not tyrannizing minorities within our community?

Top Ten Law Blogs

by Roger Alford

According to TopTenSources, “law news feeds abound … [but] these 10 are the best”:

Legal Theory Blog
Opinio Juris
Jurist
PrawfsBlawg
The Volokh Conspiracy
The Becker-Posner Blog
Law.com
How Appealing
Legal Underground
Overlawyered

Not bad company!

Feinstein Withdraws ATS Amendment

by Roger Alford

Senator Feinstein has withdrawn her bill that would amend the Alien Tort Statute. Her terse letter to Senator Specter states that while the legislation was designed to address concerns about the clarity of the existing statute in light of Sosa “I believe that the legislation in its present form calls for refinement in light of concerns raised by human rights advocates, and thus a hearing or other action by the Committee on this bill would be premature.”

A copy of her withdrawal letter is available here.

More on Complying with International Tribunal Judgments

by Roger Alford

Julian, regarding your last post, I take a different view of the Canadian softwood lumber cases. My perspective on whether the United States shall give effect to international tribunal decisions depends first and foremost on whether there is a federal mandate relevant to the question. Obviously our obligation to implement a decision of an ICSID arbitral panel is very different from our decision whether to recognize an ECJ decision. In the case of ICSID decisions, there is a federal statute requiring that we give “full faith and credit” to an ICSID award “as if the award were a final [state court] judgment.”

We have something similar in the softwood lumber dispute. There is a federal statute requiring the relevant executive agencies to comply with any binational panel or extraordinary challenge committee decision that has been rendered. See 19 U.S.C. § 1516a(g)(7)(A). Under that provision, if a panel or committee renders a decision, the executive branch agency “shall, within the period specified by the panel or committee, take action not inconsistent with the decision of the panel or committee. Any action taken by the [executive agency] … shall not be subject to judicial review, and no court of the United States shall have power or jurisdiction to review such action on any question of law or fact by an action in the nature of mandamus or otherwise.”
I read that to impose a congressional obligation on executive agencies to give effect to these binational panel decisions. It is not a matter of discretion, unless of course executive agencies have discretion to violate federal statutes. Nor is it a matter of little moment; several billion dollars potentially rides on the question of whether the United States must comply with these international tribunal decisions.

The Painfully Slow and Political Process of Complying with International Tribunal Judgments

by Julian Ku

U.S. Secretary of State Rice is visiting Canada this week in a likely futile attempt to defuse a worsening U.S.-Canada trade dispute over softwood lumber. As I’ve blogged in the past (here and here), U.S. relations with Canada have been steadily worsening over the past few years over a variety of issues. But the refusal of the U.S. to comply with a final NAFTA tribunal judgment is now a trade “casus belli” in Canada and the top item on the agenda for Secretary Rice’s visit.

I think as a policy matter, the U.S. position on softwood lumber and other trade issues is hard to defend (although it is worth remembering that Canada is hardly free from blame for this ongoing dispute). But, as I’ve argued rather incessantly in the past, compliance with international tribuanal judgments, even trade tribunals like NAFTA and the WTO, remains a policy decision for the U.S. Congress and President. It is not something that would be appropriately delegated to the federal courts, as many international lawyers often suggest. If trade disputes are a diplomatic bargaining process, the U.S. shouldn’t be burdened with a system of automatic compliance since this would undercut its bargaining power.

Compliance here will occur if and when the President and Congress decide to do so. Which is why the Canadians are going to have to bargain, rather than simply whine about U.S. non-compliance. The U.S, for instance, is already moving to comply with a separate WTO case involving Canada. Compliance can happen, but it is a long, slow, and political process. Which is as it should be.

The Feinstein Amendment and Presidential Waivers

by Roger Alford

The proposed Feinstein Amendment to the Alien Tort Statute includes an interesting provision regarding presidential waivers of litigation. That provision would stipulate that “No court in the United States shall proceed in considering the merits of a claim under subsection (a) if the President, or a designee of the President, adequately certifies to the court in writing that such exercise of jurisdiction will have a negative impact on the foreign policy interests of the United States.”
It has been asked in another context whether there are similar provisions allowing the President to terminate lawsuits on his independent determination of the negative impact of the foreign policy interests of the United States. The answer is yes.
First, the Helms-Burton Act authorizes litigation against foreign corporations that traffick in property confiscated by Cuba. Section 306 of that statute provides that, “The President may suspend the effective date under subsection (a) for a period of not more than 6 months if the President determines … that the suspension is necessary to the national interests of the United States….” Every six months since 1996, the President has made such a determination, such that Title III of Helms-Burton has yet to become effective. In each case the President has precluded litigation from ever going forward, thereby making the litigation section of Helms-Burton an effective dead letter. This suggests the President has express delegated authority to preclude litigation that is against the national interest.
Another example is the Algiers Accords. As part of the settlement of the Iranian hostage crisis, the Carter Administration signed an executive agreement with Iran stipulating that all legal proceedings against Iran shall be terminated in United States courts. A month later President Reagan signed an Executive Order ratifying the obligation. The Court in Dames & Moore affirmed this executive action, finding that Congress had implicitly authorized such action in the IEEPA and the Hostage Act. Litigation that could have otherwise gone forward in U.S. courts was suspended by virtue of executive action in the national interest. This suggests that the President has implied delegated authority, and perhaps inherent authority, to preclude litigation that is against the national interest.
Third, there have been various examples in which the President waives the right of nationals to pursue claims, such as the San Francisco Peace Treaty that was dispositive in the Japanese POW claims against Japanese corporations. In Article 14 of that treaty the United States waived all reparation claims of U.S. nationals against Japan and their nationals. This suggests the President has inherent executive authority to preclude certain litigation that is against the national interest.

On the other hand, in the Holocaust context the President signed an executive agreement with Germany as part of the German slave labor settlement in which the President promised to submit a formal foreign policy statement of interest that all Holocaust-related claims against Germany and its nationals be dismissed. Thus far, every claim in which such a U.S. statement of interest has been filed has resulted in dismissal of the lawsuit. That said, it has never been suggested that the courts are required to dismiss the claims, and according to his book Imperfect Justice, Ambassador Eizenstat negotiated the statement of interest on the belief that an executive order to courts to dismiss pending litigation could not be constitutionally imposed absent a statute. (p. 220). This suggests that the President believed he did not have inherent authority to preclude litigation that is against the national interest.

The presidential waiver provision in the Feinstein Amendment appears to be a version of delegated ad hoc jurisdiction stripping. It is fairly radical in that it provides express delegated authority to dismiss any pending ATS litigation that is determined to be against the national interest. Applying the provision to the facts of Sosa, the President could have dismissed the litigation against U.S. officials who allegedly engaged in transnational kidnapping. It seems odd that the Executive branch could terminate litigation against one of its own.

The Hariri Report, the UN, and Legitimacy

by Chris Borgen

It is difficult to imagine a situation when Julian may ever be satisfied with what the UN has done. Here the UN actually accuses high-level Syrian and Lebanese officials of taking part in a murder and he thinks this is another example of the UN being inconsequential. There’s just no pleasing some people.

Julian mentions “allegations” of possible “high level” interference by UN officials, causing the report to be redacted, specifically removing the names of Assad’s brother and members of his inner circle. Before we get all wound up in some conspiracy theory, one should note that Detlev Mehlis, the author of the report, said he himself made the changes without the urging of any other UN official once he learned that the report would be made public and would not be confidential. This is a perfectly reasonable explanation but, even if you don’t accept it, one should still see the report for what it is: a political disaster for the Syrian regime.

Let’s set aside the rhetoric and actually look at the effects of the report so far. Julian implies that, like reports of other international organizations, this report ends up with “muddy, often useless conclusions in an attempt to avoid rocking the boat.” Well, I guess someone better tell all those demonstrators in Damascus to calm down. That is not the result of a document that avoids rocking the boat.

What is even more interesting are the comments of some of the Syrians in the street when asked about the report. Comments were along the lines of, “well, if these allegations turn out to be true then whoever supported the assassination are traitors,” and “if anyone in Syria was responsible, they must be brought to justice.” Probably not the sound bites that Assad and his cohorts were hoping for when they planned this “spontaneous” demonstration.

No one seems to find that this is a report that was muddy or useless. Look at the news cycles, the report was portrayed not as milquetoast but a bombshell. Even Al Jazeera read the whole report on air. Keep in mind, even without the name of Assad’s brother, the upper echelons of the Syrian and Lebanese security agencies were implicated after an investigation. Maybe this is just like going after Scooter Libby instead of Dick Cheney.

Anyway, what unremitting detractors of the UN miss is when it actually does some good. They don’t realize, perhaps, that in many parts of the world the UN’s voice is believed to be more legitimate than that of the United States, or at least that of the current Administration. Especially after the intelligence fiasco leading up to the Iraq War, the U.S. is not perceived as being especially credible when it starts pointing the finger in the Middle East. But the UN, for all its flaws, is. This is one of the particular strengths of a global organization and one of the things that those who would wish that the UN would just collapse should realize: legitimacy matters. And, even if some in the U.S. see the UN as illegitimate, their view does not map to the rest of the globe. When thinking about foreign policy, we need to remember how others perceive situations as opposed to simply our own ideological views. In this case the UN is the enemy of our enemy. Any realist knows what that means.

For Liberty, For Justice, and for … Yale?

by Roger Alford

“I love Yale…. [but] why bother giving to it? My resources are very far from limitless, so why not give where it makes a difference?” That is the question posed in a wonderful New York Times article on Sunday by Republican multi-millionaire entertainer Ben Stein to, among others, Democratic human rights advocate/scholar and Yale Law School Dean Harold Koh. It is a deeply interesting question.

Yale has an endowment of $12.7 billion. Through its investment team it earned about 17 percent per year, or one billion dollars every few months. Stein notes that with such staggering profits, those gains dwarf whatever pitiful little gifts that he might offer. By comparison his donations of several thousand dollars to other organizations that promote animal rights or assist widows of deceased American vets does far more good. “There are only a few tens of thousands of us alums, so what we give has to be totally insignificant… Why give them money, then?” Donating thousands of dollars is “virtually meaningless to Yale, so why bother giving to it?” Indeed. (Full disclosure: I am not a Yalie, but am married to one).

If we care deeply about human rights or similar public concerns, Stein raises the serious question of why we should divert funds to fantastically rich organizations like Yale Law School instead of human rights organizations that can directly and materially benefit from every single dollar we donate. Yale University earns from its endowment about 6 million dollars a day, or about $4,000 per minute. Rather than give to Yale, why shouldn’t Yale alums give to an organization like International Justice Mission? When I was in India this summer working with IJM, it was clear that a few thousand dollars would pay the annual salary of an Indian human rights lawyer working daily to free those in bonded labor or child prostitution. So with $4,000, an alum could give one minute to Yale, or one year to IJM? Why give money to the anointed “little princes or princesses” at Yale Law School (Stein’s term) instead of the true nobility of our profession who desperately need our support?

Now I do not mean to paint with a broad brush and suggest that all gifts to all law schools are similarly suspect. Certainly gifts to many law schools can make a dramatic difference in the life of that school. For example, Yale’s endowment earns in a few months the total endowment of my current employer. If one of our alums makes a gift to help fund our newly established human rights initiative that is fighting religious discrimination in remote parts of the world, it will materially and dramatically improve the experiences of our most inspired students and their clients. I would suspect most schools are in a similar situation. (The average university endowment is $361 million, and the median is $72 million).

Rather than make a donation to the fat and happy Yale Bulldogs, why shouldn’t Yale Law alums donate a real live bull to the desperate and starving through Heifer International? Better yet, why not have the Yale Law School Dean (whom I greatly respect) spend countless hours campaigning for their alums to make donations to human rights organizations in the school’s name out of a deep sense of institutional gratitude and an abiding commitment to human rights? The capital campaign could announce that Yale would donate one dollar of every two dollars raised from alums to a truly needy non-profit organization of their choice. That may be the best way for Yale to continue to win Ben Stein’s money.

Related links:
For Loyalty, For Irrationality, and For Yale

More on the U.N. and Hariri

by Julian Ku

Before we get too excited (see Chris’ post here) about the U.N.’s wonderful effectiveness in the investigation of Harari’s death, it is worth pointing out that allegations of high level U.N. interference have been circulating almost from the moment the report was released. In particular, the electronic version of the U.N. Harari report contained embedded text of last-minute changes. According to the Times of London, these changes removed”[t]he names of the brother of Bashar al-Assad, President of Syria, and other members of his inner circle . . .” and instead pointed to “unnamed Syrian officials.” Obviously, the U.N. may have good reasons for redacting the report, but its intervention here to protect the current Syrian president also points to one of the problems with investigations run by international organizations – they tend to try to avoid pointing fingers and end up with muddy, often useless conclusions in an attempt to avoid rocking the boat.

The UN and the Hariri Investigation

by Chris Borgen

Suzanne Nossel at Democracy Arsenal has a good post on the UN report implicating the Syrian government in the Hariri killing.

She explains succinctly how and why the UN can play an important role in investigating such crimes, especially in situations where we, the U.S., cannot. Nor could anyone else (such as the E.U. or the ICC) have done the job.

This is another example of the value of a global organization such as the UN, despite its flaws.

The Golden Rule of Enemy Detention

by Roger Alford

I just finished attending the International Law Association Conference in New York and one of the highlights was the insightful commentary on the treatment of detainees in the war on terror. I was particularly impressed by a new professor, Geoffrey Corn of South Texas Law School. Corn was a former Special Assistant to the Judge Advocate General for Law of War Matters, and therefore spoke with far more authority than the typical idealistic academic.

There was much debate on the proper standard for detainees. Professor Corn cut to the chase and articulated what is the best standard that should be applied in the current war on terror. That standard is that you should do nothing to an enemy detainee that you would not wish the other side to do to one of your subordinates. Note that it is not the treatment you would wish for yourself if you were detained and interrogated, for a soldier, if necessary, will willingly die for his country rather than divulge certain information. But rather it is the standard of treatment that you would want one of your men to face if he were detained.

Corn emphasized that the need for legal standards is essential not just for the detainee, but also for the one who detains. It is for their humanity as much as the detainees that we need to adhere to standards.

Corn stated that he regularly taught this standard in JAG school. The substance of such an admonition is also expressed in Army Field Manual 34-52 (“The use of force, mental torture, threats, insults, or exposure to unpleasant and inhumane treatment of any kind is prohibited by law and is neither authorized nor condoned by the US Government….The absence of threats in interrogation is intentional, as their enforcement and use normally constitute violations of international law and may result in prosecution under the UCMJ.”)

This standard is a simple one, but one that brilliantly resolves many problems associated with an admittedly incommensurate rule. One might call it the Golden Rule of Detention. It also happens to resonate with one of the primary motivations for state compliance with international law: reciprocity.

UPDATE: There is an informative article in the New York Times Magazine addressing the difficulty of where to draw the line when soldiers are on the ground facing threatening circumstances. It addresses the question of “the line that separates nonlethal force that is justified – and sometimes very painful – from nonlethal force that is criminal.” Not directly relevant to enemy detention, but underscores the need to draw lines between what is criminal mistreatment and what is not. Read it.

What is Feinstein Thinking in Amending the ATS?

by Roger Alford

There has been much speculation in various academic circles as to why Senator Dianne Feinstein–a liberal Democrat representing a state that has been at the vanguard in applying Alien Tort Statute–would propose amendments to the law. Here is her own statement as to why she perceives a change to be necessary:

“Many recent legal cases have demonstrated the need for clarification of the meaning and scope of lawsuits filed in our federal courts by foreigners for alleged violations occurring outside the United States… Judges have grappled in interpreting and applying the relevant law for years with no consensus. The lawsuits should be able to go forward, but judges need better legal tools to understand the cases that come before them….Right now, courts are essentially adrift in terms of being able to pinpoint the underlying meaning, scope and intent of the Alien Tort Statute. I hope this legislation will settle the questions that surround this 200-year-old law by providing a reasonable legal means that both plaintiffs and defendants can rely on to litigate their differences. It is time for Congress to bring clarity to the law and I believe this legislation does so.”

According to her press release, her proposed amendment would:

  • Specify a legal standard convicting defendants of wrongdoing if they directly participate with specific intent to commit the alleged tort;
  • Codify international claims under the Alien Tort law to include genocide, torture, slavery and slave trade, extrajudicial killing, and piracy;
  • Expand on existing statutory law, the Torture Victim Protection Act;
  • State that federal courts shouldn’t proceed with tort claims when the President adequately certifies that such exercise of jurisdiction will have a negative impact on the foreign policy interests of the U.S.;
  • Maintain that every effort should be made to try these cases in the country of origin before granting jurisdiction in U.S. courts;
  • Invoke a 10-year statute of limitations on Alien Tort Statute charges filed against defendants; and
  • Disallow contingency fee arrangements for legal representatives of plaintiffs or defendants.
UPDATE: Senator Feinstein provides a longer explanation of her motivations in her introduction of the bill (available in the Congressional Record here, here, and here). The essence of her motivation was that Sosa did not address which international law claims by foreigners should be heard in U.S. courts and the standard of liability for U.S. companies facing these human rights charges. The Court expressly invited congressional guidance and Senator Feinstein indicated that she believes it is the burden of Congress to “pass legislation that settles on a reasonable legal means that plaintiffs and defendants alike can rely on to litigate their differences.” (Thanks to Ed Swaine).

Spanish Warrants Issued for U.S. Soldiers

by Roger Alford

This story will no doubt heighten trans-Atlantic tensions. A Spanish judge has issued arrest warrants for three U.S. soldiers whose tank fire on a Baghdad hotel killed Jose Couso, a Spanish journalist. According to the report, the United States has undertaken three separate investigations to determine whether the GIs engaged in any unlawful conduct. In each case they were exonerated. One would have thought that would be the end of the matter. But Spain now plans to prosecute the soldiers for unspecified “delitos contra la comunidad internacional.”

By issuing these arrest warrants, the Spanish judge is clearly second-guessing the conclusions and thoroughness of our military investigations. Of course, any soldier who unlawfully kills an innocent civilian in the course of war should be punished. Central Command spokesman Brig. Gen. Vince Brooks has previously stated that “We don’t target journalists deliberately — not now, not ever.” Spain should take this position more seriously.

As a political and strategic matter this is a bad move for Spain. First, there is no legal obligation for the United States to extradite these soldiers. Article 3 of our extradition treaty with Spain provides that “[n]either of the Contracting Parties shall be bound to deliver up its own nationals.” The warrants likely will not meet with success.

Second, these warrants likely will discourage freedom of the press (especially foreign press) in the theater of war, which will inure to the detriment of all of us. As the Spanish government has noted, reporters such as Couso are “our eyes, our ears, our lives–anonymous people behind a microphone.” In 2003 journalists embedded in Iraq signed waivers that agreed to hold the United States harmless in the event of death. Next time the United States will look with even greater skepticism at the prospect of any journalists on site.

Third, these arrest warrants will embolden the United States to resist joining the ICC for precisely the reasons they have expressed: fear of politically-motivated foreign prosecution of U.S. soldiers for debatable conduct in war. Conservative blogs are already abuzz that these warrants prove that the United States should never join the ICC. See here and here.

Fourth, there are plenty of other journalists who have been killed in Iraq by both sides. Why target this one incident? We do not see, for example, the Spanish judge issuing an arrest warrant for the Iraqi insurgents who killed a Spanish journalist on April 8, 2003, one day after Couso was killed.

Finally, the precedent this may set is remarkable. Any country whose civilians have been killed in foreign battle as a result of any questionable “collateral damage” may be entitled to prosecute foreign soldiers and officers. Are all of these subject to claims of “delitos de asesinato” as well? Under this precedent, countries such as Britain, France, Germany, Iran, Jordan, Lebanon, Poland, Ukraine, and the United States may also issue arrest warrants for those thought responsible for any suspicious deaths of their journalists who have died in Iraq. We are witnessing a yearning for the domestication of war.

For its part, it appears that United States refused to cooperate in the Spanish investigation. Had it done so and been able to allay the suspicions of the Spanish authorities, it may not have come to this. Apparently the Spanish authorities made two requeststo the Bush Administration, including an offer to fly to the United States to interview the soldiers. The judge wrote, “Given the nonexistent judicial cooperation offered by the American authorities in elucidating the facts” the arrest warrant is “the only effective measure for assuring the involvement of the accused in the process.” It will be important for the United States to disclose its version of events in this regard.

The full text of the arrest warrant (in Spanish) is here.

Senate Considers Removing International Law from the Alien Tort Statute

by Julian Ku

Senator Dianne Feinstein, a Democrat from California, has introduced a potentially revolutionary amendment to every international lawyer’s favorite statute, the Alien Tort Statute. While Sen. Feinstein calls her amendment a “clarification,” it looks to me like she is proposing a near-complete evisceration of the Alien Tort Statute as we (international lawyers) know it. And such an evisceration is almost certainly a good thing.

Since 1980, when it was first invoked to allow aliens to bring suits alleging violations of international human rights law, the Alien Tort Statute has become a vehicle for advocates of international law within the U.S. International lawyers loved the statute because it opened the door to federal court vindication of customary international law, a type of law rarely recognized by courts in other contexts. In recent years, advocates have used the ATS to sue large corporations and, more recently, the U.S. government for alleged abuses arising out of the war on terrorism.

If enacted, the Feinstein amendment would continue to permit lawsuits for genocide, torture, slavery and slave trade, extrajudicial killing, and piracy. But, unlike the current open-ended ATS, those are the only claims you can bring under the statute (creative claims for violations of, say, international environmental rights, would not be permitted). Most importantly, the definition of these claims would be statutory as opposed to based on international custom, which is notoriously fuzzy and evolving.

The amendment has some other salutary provisions. It would give the President the power to terminate an lawsuit if he certifies in writing that the suit would have a “negative impact” on U.S. foreign policy. It also appears to shield corporations from theories of “aiding and abetting” liability by limiting damages to defendants who are “direct participants acting with specific intent to commit ” one of the specified torts.”

In sum, Sen. Feinstein is proposing that Congress “de-internationalize” the Alien Tort Statute. Instead of looking to foreign courts or international tribunals (or to international law professor articles), courts considering a claim under the ATS would look to the text of the statute and the legislative history. Victims of serious human rights abuses would still be able to bring their lawsuits, but they would have to meet U.S. statutory standards, and not fuzzy international ones.

I have no idea whether this bill has a good chance of passing, although I think its sponsorship by a moderate Democrat is very promising.

* Here are some key excerpts from the bill

‘‘§ 1350. Alien’s action for tort
‘‘(a) JURISDICTION OF DISTRICT COURTS.—The district courts shall have original and exclusive jurisdiction of any civil action brought by an alien asserting a claim of torture, extrajudicial killing, genocide, piracy, slavery, or slave trading if a defendant is a direct participant acting with specific intent to commit the alleged tort. The district courts shall not have jurisdiction over such civil suits brought by an alien if a foreign state is responsible for committing the tort in question within its sovereign territory.

‘‘(c) LIABILITY FOR DAMAGES.—Any defendant who is a direct participant acting with specific intent to commit a tort referred to in subsection (a) against an alien shall be liable for damages to that alien or to any person who may be a claimant in an action for the wrongful death of that alien.

‘‘(e) FOREIGN POLICY INTERESTS OF THE UNITED STATES.—No court in the United States shall proceed in considering the merits of a claim under subsection (a) if the President, or a designee of the President, adequately certifies to the court in writing that such exercise of jurisdiction will have a negative impact on the foreign policy interests of the United States.

International Law Weekend

by Chris Borgen

From this Thursday through Saturday, the American Branch of the International Law Association (and co-sponsors including the NY City Bar and the American Society of International Law) will hold International Law Weekend 2005 at the House of the Association of the Bar of the City of New York, 42 West 44th Street, NY, NY. Links to the program and registration materials are available here.

Registration is free for students and members of one of the co-sponsoring organizations. Otherwise, registration is $50.

If you are attending, please swing by to say hello to Roger or me as we will both be there. Roger will moderate a panel entitled “The Charming Betsy and the Role of Presumptions in International Law” (4:00 pm to 5:30 pm on Friday, October 21st ) and I will moderate a panel on UN Reform and the ICJ (2:15 pm to 3:45 pm on Friday, October 21st).

We hope to see you there.

"The Mother of All Trials"

by Roger Alford

Michael Scharf argues that the trial of Saddam Hussein is the “mother of all trials.” He makes this argument based on (1) the scale of atrocities; (2) the status of the accused; (3) the level of interest of the international community; (4) the legal precedent the trial will set; and (5) the effect of the trial.

Personally, I have a hard time ranking this trial above the Nuremberg trials. Having just returned from a conference in Nuremberg, Germany that focused on the legacy of those trials, it is difficult to avoid the conclusion that the Nuremberg Trials were the genesis for the modern international human rights movement. But to avoid further bias of the poll, I will refrain from further elaboration. What do you think? Scroll down and vote.

Which International Criminal Trial is the Most Important?
Nuremberg Trials of 1945
Adolf Eichmann Trial of 1961
Klaus Barbie Trial of 1987
Nicolae Ceausescu Trial of 1989
Slobodan Milosevic Trial of 2002-05
Saddam Hussein Trial of 2005-06


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Saddam Hussein Trial Blog

by Peggy McGuinness

Michael Scharf at Case Western Law School, together with a group of other law professors and professionals with deep knowledge about international war crimes tribunals, has put together a very useful website and blog on the Saddam Hussein trial, aptly named Grotian Moment. It is well worth a visit.

Update: Of course, Julian posted this blog endorsement a couple of weeks ago. Two endorsement are better than one, no? We’ll add Grotian Moment to the blogroll for easy access.

"Open Skies" Agreements – It’s a Good Thing Congress is Not Involved

by Julian Ku

The U.S. entered into a new round of negotiations this week with the E.U. for “open skies” air transport agreements. These agreements govern the terms of air traffic rights between U.S.-based and E.U. based-carriers, and the intention is to liberalize these rules so that air carriers can fly to directly to more cities on each side. In other words, more direct flights to more places. This could only be a good thing. Maybe one day, I’ll be able to take Lufthansa from NY to San Francisco.

Air transport seems to be an area that could use more, rather than less, international coordination. Even the WSJ($) editorial page seems to think so. There is the 1944 Convention on International Civil Aviation (the Chicago Convention) but the important agreements appear to be bilateral, such as this recent agreement between the U.S. and Mali. On the other hand, since the majority of the world’s air traffic flows between the U.S. and Europe, perhaps no worldwide negotiations are needed.

Moreover, none of these current agreements appear to require U.S. Senate confirmation or any congressional confirmation. Talk about unchecked executive power! But Congress’ non-involvement may also explain why there are so many (72 and counting) and why they are so uncontroversial.

Australia Seeks ICC Referral Against Mugabe

by Julian Ku

Sometimes, countries really act in ways that don’t appear motivated by narrow material self-interest. Australia’s recent campaign to win a Security Council referral against Zimbabwe President Robert Mugabe is a good example of this type of moralist foreign policy. Australia has no obvious national interests at stake in Southern Africa. It stands pretty much alone in its level of outrage. But it is outraged nonetheless and it is taking action.

More on Amnesty and the ICC Arrest Warrants

by Roger Alford

U.N. Secretary-General Kofi Annan has praised the issuance of the ICC arrest warrants for top Ugandan LRA rebels. He noted that “the ICC only intends to prosecute those LRA senior leaders who are alleged to bear the greatest responsibility for the most serious crimes. He therefore urges all eligible LRA combatants to take advantage of existing disarmament and reintegration programmes.” This is an interesting take on what the ICC may be doing. The ICC prosecutor’s approach may be one of attempting to drive a wedge between the indicted top LRA rebels on the one hand, and the rank and file LRA soldiers on the other, hoping that the latter will lay down their arms in exchange for an assurance of amnesty. The U.N. has more on the Annan statement here.

Meanwhile the ICC prosecutor also has issued a statement in which he emphasized that the matter was referred to the ICC by the Government of Uganda in December 2003 and confirmed again in July 2004. One might well interpret such a State referral as obviating the need for compliance with the complementarity doctrine, as the State is requesting the prosecution before the ICC rather than national courts. Put differently, can there be an Article 17 objection based on complementarity where there is an Article 14 referral by a State?

The problem with this position is that in this case a Ugandan government agency, the Uganda Amnesty Commission, is still maintaining that all LRA rebels–including those indicted by the ICC–are eligible for amnesty. According to the chair of that commission, Ugandan high court judge Peter Onega, “As far as the amnesty law is concerned, all the people who surrender to us are still eligible for a blanket amnesty including the five who were indicted by the ICC.” That conclusion is based on the Ugandan Amnesty Act of 2000 which defines amnesty as “pardon, forgiveness, exemption, or discharge from criminal prosecution or any other form of punishment by the State” and is broadly extended to anyone who “engaged in war or armed rebellion against the government of the republic of Uganda.” Thus under Ugandan amnesty law, the LRA rebels are guaranteed that they will not be “prosecuted or subjected to any form of punishment for the participation in the war or rebellion for any crime committed in the cause of the war or armed rebellion.”

So what happens when a high court judge who chairs a government commission pronounces that amnesty is still available under local law to individuals indicted under the ICC, but at the same time the government has referred the entire conflict to the ICC for investigation? Article 17(1)(b) states that a case is inadmissible under the complementarity doctrine if a “State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute.” Can amnesty guaranteed under local law render a case inadmissible notwithstanding a subsequent State referral? It is difficult to reach a firm conclusion without an intimate knowledge of the ICC and Ugandan law.

“Ultimately it is Ugandans who have to decide what is best for them. Whatever they choose, it should not hinder reconciliation and healing and yet it should not encourage impunity and hurt the victims yet again,” said Archbishop Desmond Tutu. It appears Ugandans may not know which path is best for them, leaving successful prosecution before the ICC in a state of uncertainty.

Related links
ICC Watch: Uganda Arrest Warrants Unsealed
Peaceful Settlements in Uganda Jeopardized by ICC Arrest Warrants

Is McCain Amendment a Step Backwards?

by Roger Alford

Ian Fishback’s open letter to Senator John McCain cried out for clear rules on detainee interrogation. He wrote:

“For 17 months, I tried to determine what specific standards governed the treatment of detainees by consulting my chain of command …. Instead of resolving my concerns, the approach for clarification process leaves me deeply troubled. Despite my efforts, I have been unable to get clear, consistent answers from my leadership about what constitutes lawful and humane treatment of detainees. I am certain that this confusion contributed to a wide range of abuses including death threats, beatings, broken bones, murder, exposure to elements, extreme forced physical exertion, hostage-taking, stripping, sleep deprivation and degrading treatment. I and troops under my command witnessed some of these abuses in both Afghanistan and Iraq.”

Senator McCain responded to this letter with the “McCain Amendment” which he argued was necessary because our soldiers were crying out for clear rules:

“I can understand why some administration lawyers might want ambiguity, so that every hypothetical option is theoretically open, even those the President has said he does not want to exercise. But war does not occur in theory, and our troops are not served by ambiguity. They are crying out for clarity. The Congress cannot shrink from this duty, we cannot hide our heads, pulling bills from the floor and avoiding votes. We owe it to our soldiers, during this time of war, to take a stand.”

Marty Lederman over at Balkinization has an interesting post now arguing that the McCain Amendment as amended by Senator Ted Stevens may actually be a step backwards. Lederman argues that:

“if the Congress enacts the Amendment as so limited, it will be a major step backwards from where the law currently stands. This can’t be overemphasized: If Stevens is successful at adding his seemingly innocuous “augment[ation],” it would make the law worse than it currently is… [I]f Senator Stevens has his way, and successfully exempts the CIA from the McCain Amendment’s otherwise unequivocal ban on cruel, inhuman and degrading treatment, the Congress will for the first time have ratified the Administration’s view that such cruel, inhuman and degrading treatment is not uniformly off-limits, and will have given a green light to the CIA to engage in such conduct. Moreover, as explained above, that very unfortunate result would not be offset by any meaningful improvement in the law as it applies to the Armed Forces.

Meanwhile, Jon Holdaway, a former JAG officer over at Intel-Dump, objects to the McCain Amendment for a completely different reason:

“I would support an amendment that directed the military to create rules to protect detainees from such treatment, or which strengthens provisions of the Uniform Code of Military Justice to make such treatment specifically a criminal act (ie., add it to Article 93, Cruelty and Maltreatment). Putting the mandate in broad terms with the directive for DOD to create implementing policies and instructions, followed up by Congressional oversight gives the military much more flexibility to respond to the unique challenges posed by radical or fundamentalist Islamic detainees. A prohibitive statute such as this one, however, which tries to micromanage interrogations from Capitol Hill, is a mistake that will result in years of litigation, poor intelligence, and wasted opportunities to save lives.”

Both Lederman and Holdaway think the McCain Amendment that may eventually become law is a step backwards, but for very different reasons.

What is fascinating in this debate over detainee interrogation is the larger debate over the role of Congress and the Executive branch on what is essentially an administrative law question: whether Congress shall impose strict rules or general guidance on how an agency of the Executive branch conducts its affairs. The general approach of our administrative state is one of broad grant of authority from the legislative branch and trust in agency expertise to carry out the congressional mandate. The McCain Amendment appears to be one of those instances in which the legislative branch is stepping in because it now lacks confidence in the agency to exercise its expertise.

But of course, as anyone who has studied the Eighth Amendment or the Torture Convention in any detail well knows, precisely what terms like “cruel or unusual punishment,” or “cruel, inhuman, or degrading” treatment is an exceedingly difficult question. If we apply an administrative law gloss to the McCain Amendment, what are we to do if executive agencies interpret those words broadly or narrowly? Courts likely will defer to agency interpretations of what is “cruel, inhuman, or degrading” treatment. Hence the McCain Amendment may not have particularly cabined executive authority in any significant way. Administrative law principles will blunt any major impact it might otherwise have.

I am curious if others have thoughts on whether this administrative law gloss on the McCain Amendment is correct.

Related links:
What Congress Has Done and Not Done to Limit Inhumane Treatment
Congress Speaks–Defining Detainee Interrogation Policies

Goldstone and Arbour Hit Pay Dirt

by Julian Ku

Sometimes being virtuous pays off. The Thomas J. Dodd Prize in International Justice and Human Rights has been awarded jointly to Justice Richard Goldstone and U.N. High Commissioner for Human Rights Louise Arbour. The two well-known figures from the human rights community will share the prize of $75,000. Thomas Dodd, the father of current U.S. Senator from Connecticut Chris Dodd, served as an executive trial counsel at Nuremberg.

The prize has only been awarded twice, so it doesn’t quite have the pedigree of the Nobel Prize. Still, if the trend continues, it could be a nice bonus for those folks who make a living promoting or advocating for international human rights. Perhaps like the Nobel Peace Prize, politics is unavoidable. This year’s prize winners are openly critical of the U.S. policies toward the war on terrorism, and I am somehow guessing that taking this line against the U.S. is going to be de rigeur for future winners. Which means, I suppose, I’m never going to win this prize. Not that anyone was planning on nominating me, but it would be nice to have a little extra cash.

Three Years Ago Today: "Saddam Wins 100% of the Vote"

by Roger Alford

October 16, 2002: “Iraqi officials say President Saddam Hussein has won 100% backing in a referendum on whether he should rule for another seven years. There were 11,445,638 eligible voters-and every one of them voted for the president, according to Izzat Ibrahim, Vice-Chairman of Iraq’s Revolutionary Command Council.” (Link)
October 16, 2005: “I voted then, for Saddam, of course, because I was afraid… But this time, I came here by my own choice. I am not afraid anymore. I am a free man…. It gives me hope in God, and in my fellow men.” (Link)

Lots of wonderful news coming out of Iraq. Best summary of links from MSM is from Google News here. Nice graphic of the unofficial results from the Washington Post is here. An American Marine was live blogging the Iraqi vote here. Iraqi bloggers discuss their personal experience and have photos here, here, and here. Read the comments.

The full text of the Iraqi Constitution is here. The best part of the Preamble reads, “We the people of Iraq, … who are looking with confidence to the future through a republican, federal, democratic, pluralistic system, have resolved … to respect the rule of law, to establish justice and equality to cast aside the politics of aggression, … and to spread a culture of diversity and defusing terrorism.”

ICC Watch: Uganda Arrest Warrants Unsealed

by Julian Ku

The ICC Prosecutor has unsealed the arrest warrants issued in July 2005 against five leaders of the Lord’s Resistance Army (LRA). The warrants can be found here. Not surprisingly, these warrants allege pretty grisly crimes including:

murder, abduction, sexual enslavement, mutilation, as well as mass burnings of houses and looting of camp settlements … abducted civilians, including children, …to have been forcibly recruited as fighters, porters and sex slaves and to take part in attacks against the Ugandan army (UPDF) and civilian communities.

I am generally sympathetic to Roger and Peggy’s criticism of the effect an ICC intervention into a delicate peace negotiation, although I do think it is worth noting that the ICC does have some moral (and maybe) legal obligation to act. As one of its arrest warrants has pointed out, “LRA commanders are allegedly inclined to launch retaliatory strikes, thus creating a risk for victims and witnesses who have spoken with or provided evidence to the Office of the Prosecutor.”

But the jury is still out on whether this intervention will result in more or less violence and suffering for the people of Uganda.

Dutch Court Refuses to Extradite Alleged Al-Qaeda Suspect to U.S.

by Julian Ku

Speaking of Grotius, a Dutch court ruled this week that it would not extradite an alleged Al Qaeda suspect to the U.S. because his fundamental legal rights could not be guaranteed. The Court held, according to AP: “[t]he risk that the [individual] will be confronted with suspicions of involvement in the al Qaeda network is certainly not imaginary. … This gives sufficient reason to believe that with regard to him, fundamental legal guarantees—such as direct, unlimited and undisturbed contact with a lawyer and timely access to a judge—could be threatened.”

I’m not sure, but I think the Dutch court is concerned that the U.S. might deem the suspect an enemy combatant and try him before military commissions. This seems a bit far-fetched, but I suppose it is within the realm of possibility. But that shouldn’t matter, at least not under my reading of the U.S.-Netherlands extradition treaty. None of the provisions permitting a refusal of a request for extradition, e.g. for political or military offenses seems applicable.

Moreover, the problem with the Court’s analysis is that it would prevent the Netherlands, or any other country with a similar extradition treaty with the U.S., from ever extraditing someone connected to Al-Qaeda. But maybe I’m misreading something. International Extradition Blog has more analysis here.

War as a Necessary Evil?

by Roger Alford

Hugo Grotius, the Founding Father of international law, wrote in On the Laws of War and Peace (1625) that “So far from any thing in the principles of nature being repugnant to war, every part of them indeed rather favours it. For the preservation of our lives and persons, which is the end of war … is most suitable to those principles of nature, and to use force, if necessary, for those occasions, is no way dissonant to the principles of nature, since all animals are endowed with natural strength, sufficient to assist and defend themselves.”

On the other hand, the United Nations was established in order to “save succeeding generations from the scourge or war which twice in our lifetime has brought untold sorrow to mankind,” and the U.N. has as its objective “to practice tolerance and live together in peace with one another as good neighbors, and to unite our strength to maintain international peace and security.”

In light of these perspectives, do you agree or disagree with the following:

War is part of the natural order of things and is a necessary part of human existence.
I agree
I disagree

  
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China’s Taikonauts Fly Again

by Julian Ku

In another sign of China’s arrival as major world power, China’s space program successfully put two Chinese “taikonauts” into orbit Wednesday using their Shenzhou VI rockets. The state-run People’s Daily newspaper has set up a website for tracking the progress of the taikonauts here. This is yet another boost to China’s self-confidence (the 2008 Olympics in Beijing is another) and another way for the Chinese government to demonstrate the success of its policies and rally nationalist sentiments.

Ironically, the launch took place the same day that the U.S. Congressional-Executive Commission on China has released its (somewhat critical) annual report on human rights in China. I have to admit I had no idea that this commission existed. Apparently, it was created as part of the deal to get congressional support for admitting China to the World Trade Organization back in 2000. This is an odd creation: a free-standing commission existing solely to issue negative and critical reports about China. Even though China certainly deserves criticism, it is odd that the U.S. needs a full congressional-executive commission to complain ineffectually about China’s human rights practices. Isn’t that what the State Department is for?

In any case, no doubt most Chinese remain unaware of this and other reports detailing various human rights abuses in their homeland. A few might wonder why a country that has a per capita income of $950 is spending billions on a space program. But those are mere quibbles for most Chinese, who are probably breathlessly awaiting the return of their newest national heroes. Nationalism always trumps liberalism, at least in China today.

The Politics of Unacknowledged Legislators

by Chris Borgen

Percy Bysshe Shelly said that poets are the unacknowledged legislators of the world. If that’s true (and even if it’s not), then we need to consider why Harold Pinter has won the Nobel Prize for Literature. Think of this as being another way to assess the mood of our European allies and perhaps world opinion more generally.

As Peggy and Roger have pointed out, the Peace Prize is often used to send a signal. This year’s choice of Mohammed El Baradei and the IAEA can be viewed as sending two signals (a) it is part of the periodic reminders at Hiroshima/Nagasaki decennials of the importance of decreasing the threat of nuclear war and (b) it may be viewed as a rebuff to the current U.S. administration.

But what about the Prize for Literature? The interesting thing is that, according to the BBC World Service, Pinter was not a favorite to win. While one of the living greats, no one was focusing on him this year. A lot of the buzz was about Orhan Pamuk, a Turkish writer whose novels explore Turkey’s history and culture in a manner that some have found reminiscent of James Joyce’s novels about Dublin, or Gabrial Garcia-Marquez’s about Colombia (and Latin America), or Jorge-Luis Borges’ stories, more generally.

So why Pinter? Some argue that he won—and Pamuk did not—because of politics. Pamuk has had a political firestorm around him for his calling on his government and his country to take responsibility for the 1916 massacres (dare I say genocide?) in Armenia.

Pamuk’s public indictment of Turkey’s past actions is uncomfortable for Turkey and the EU as Turkey enters into accession talks; particularly because such human rights abuses are one of the issues that have derailed earlier attempts at Turkey’s EU accession. Pinter has been outspoken politically and, as of late, his main point has been critiques of U.S. policy which some have considered going beyond mere policy disagreements and into the realm of full-scale anti-Americanism. (See here, for example.) This is not to say that Pamuk is a big fan of U.S. policy. But I would note that his criticisms have been more balanced and morally nuanced. (See, for example, his essay from the New York Review of Books.)

By almost all accounts, Pinter deserves a Nobel for his body of work. This isn’t like when Jethro Tull won the Best Metal Album Grammy over Metallica. But what I am interested in is why Pinter got it now, when commentators thought it was Pamuk’s year, based on Pamuk’s recent work. If the answer is indeed politics, then this is an example as to how deep the Atlantic rift may be.

And now for my obligatory moment of dewy-eyed idealism. Literature, at its best, bridges gaps of experience and culture. It helps you stand in another’s shoes. If one of the things we, as international lawyers, care about is a just world then fostering an understanding of each other’s views is an important step in that direction, regardless as to whether we actually agree with those views. You cannot let rhetoric bury nuance, anger bury analysis. Anger can spur great literature and righteous anger can be the seed of political reform, but great literature and just policies are more than angry reactions. Writers (and international lawyers) are fortunately not the world’s legislators. But both can have a profound influence in how we understand and shape our world. And, based on this year’s Nobel (and other current events), I think some of us need to start doing our jobs a bit better.

UPDATE

For an interesting take on the politics of awarding this year’s Literature Prize, see this article.

"Civic Death" Penalty Violates European Convention

by Roger Alford

The Contracting States to the European Convention are obligated to “hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.” An English statute dating back to 1870 provides that: “A convicted person during the time that he is detained in a penal institution in pursuance of his sentence … is legally incapable of voting at any parliamentary or local election.” Last week the ECHR held that the latter violates the former and must be repealed.

Notwithstanding that over 25 Contracting Parties to the European Convention currently limit the right of prisoners to vote in free elections, the ECHR has now declared that the “civic death” penalty violates the European Convention. The decision in Hirst v. United Kingdom is here and the press release summarizing the decision is here.

The Court held that “the severe measure of disenfranchisement must … not be undertaken lightly and the principle of proportionality requires a discernible and sufficient link between the sanction and the conduct and circumstances of the individual concerned.” (para. 71). Significantly, the Court selectively relied on comparative experiences, looking to decisions of Canada and South Africa, but not the United States (see Richardson v. Ramirez, 418 U.S. 24 (1974)) and others, in concluding that the civic death penalty violated fundamental human rights (paras. 35-39). The Court concluded that “The provision imposes a blanket restriction on all convicted prisoners in prison. It applies automatically to such prisoners, irrespective of the length of their sentence and irrespective of the nature or gravity of their offence and their individual circumstances. Such a general, automatic and indiscriminate restriction on a vitally important Convention right must be seen as falling outside any acceptable margin of appreciation, however wide that margin might be, and as being incompatible with Article 3 of Protocol No. 1.” (para. 82)

Five dissenting judges argued that “the wording of this Article is different from nearly all other substantive clauses in the Convention and its Protocols in that it does not directly grant individual rights and contains no other conditions for the elections, including in relation to the scope of a right to vote, than the requirement that ‘the free expression of the opinion of the people’ must be ensured.” (para. 2) The dissent also noted that a majority of Contracting States impose such a restriction, and therefore “the legislation in the United Kingdom cannot be claimed to be in disharmony with a common European standard.” (para. 7) The dissent concluded, “Taking into account the sensitive political character of this issue, the diversity of the legal systems within the Contracting States and the lack of a sufficiently clear basis for such a right in Article 3 of Protocol No. 1, we are not able to accept that it is for the Court to impose on national legal systems an obligation either to abolish disenfranchisement for prisoners or to allow it only to a very limited extent.” (para. 9)

The case is an alarming example of an international tribunal finding an individual right where none exists, interpreting that right broadly to require felon suffrage, ignoring historical roots, rejecting the democratic preferences in 60 percent of Contracting States, and selectively relying on comparative experiences to reach the desired result.

Jacco Bomhoff at the ComparativeLawBlog has more.

UPDATE: For another perspective lauding the decision, see here.

Peaceful Settlement in Uganda Jeopardized by ICC Arrest Warrants

by Roger Alford

The story coming out of Uganda bears emphasis for its impact on the ICC doctrine of complementarity. Under Article 17 of the Rome Statute, “the Court shall determine that a case is inadmissible where … [t]he case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution.” The ICC website indicates that “the International Criminal Court will complement national courts so that they retain jurisdiction to try genocide, crimes against humanity and war crimes. If a case is being considered by a country with jurisdiction over it, then the ICC cannot act unless the country is unwilling or unable genuinely to investigate or prosecute. A country may be determined to be “unwilling” if it is clearly shielding someone from responsibility for ICC crimes.”

So what happens when a country considers the option of granting amnesty as part of a peaceful settlement of a civil war? Is an approach of amnesty – together with a Truth and Reconciliation Commission – one viable approach to resolving such conflicts? Should that qualify as an “investigation” within the meaning of the “complementarity” doctrine? One would hope.

Which makes the news coming out of Uganda all the more alarming. The lead mediator, Betty Bigombe, is according to the Washington Post, “a dynamic Ugandan woman who is shunning her comfortable office at the World Bank headquarters and risking her life to bring peace to the long-suffering people of northern Uganda.” So when Bigombe (pictured above with rebel negotiators) this week expressed concern about the ICC arrest warrants, this should merit world attention. According to reports,

“Bigombe managed to win some trust from both the LRA and the government as a mediator. Backed by the governments of Britain, the Netherlands, Norway, and the United States, she pitched camp in the region to mediate the peace process that had been started by religious leaders in northern Uganda. She came close to brokering a successful ceasefire agreement between the two sides late last year, when she organised the first face-to-face meeting in a decade between a senior government minister and a dozen LRA officials in the bushes in Kitgum district, some 450 km north of the capital, Kampala. However, last minute hitches saw the attempt fail. Bigombe said she had been trying to persuade the LRA leadership to end the rebellion and accept an offer of amnesty from the government. However, the ICC’s move has scuttled the amnesty option for the leaders accused of a number of atrocities…”

One does have the impression that the ICC prosecutor has not shown the better part of caution in issuing these arrest warrants at this time. How can you apply the Article 17 mandate of deference to national court proceedings when the government is in the process of brokering peace and deciding how to respond to the rebel forces by, among other options, considering a grant of amnesty?

The good news is that such arrest warrants may indeed provide a chilling effect for those contemplating the further commission of war crimes. That cannot be underestimated. But neither can one ignore the chilling effect that such arrest warrants may have on attempts to broker peace. War crimes may cease, but war will continue.

The Arctic Gold Rush: Another Reason to Ratify the Law of the Sea Treaty?

by Julian Ku

For better or for worse, the Arctic ice caps may be melting, opening up lots of virgin territory for economic development, the NYT reports. It may also raise the stakes over U.S. non-ratification of the U.N. Convention on the Law of the Sea (UNCLOS).

There appears to be lots of money to be made from melting ice caps. A Denver entrepreneur, for instance, bought a port from Canada that might turn into a $100 million port facility for a mere $7. Maybe as much as “one quarter of the world’s undiscovered oil and gas resources lies in the Arctic, according to the United States Geological Survey.”

The NYT suggests that the prospect of an Arctic gold rush may finally spur the U.S. Senate to move on the UNCLOS, which gives countries the right to claim the continental shelf extending from their territory under the sea. Russia has already invoked this treaty to claim the shelf under about half of the Arctic. The U.S., currently a signatory but not a party to the treaty, cannot directly invoke UNCLOS procedures and rules to challenge Russia (although we can be sure Canada will).

On the other hand, the U.S. already recognizes the relevant provisions of UNCLOS related to the continental shelf as customary international law. So the U.S. would follow the same rules. All it would miss out on is the UNCLOS dispute resolution procedures. But that may actually work to the U.S.’s long term benefit, forcing other states to bargain with the U.S. rather than litigate.

The Social Epidemic of Piracy

by Roger Alford

Great story in Sunday’s L.A. Times about the global web of pirated movies. The amazing sequence of events outlined in the article underscores the social epidemic of piracy. The story of bootlegged copies of Spider-Man 2 after it premiered in New York on June 30, 2004 is quite alarming:

  1. June 30, 2004, one minute after midnight: A cammer illegally records Spider-Man 2 at a theater in Manhattan.

  1. The recording is transferred to a computer and, often, posted online. The master copy is delivered to a manufacturer either as a DVD or electronically.4 a.m. the same day: Pirates of the Theatre, a group of bootleggers … posts [online] a copy of Spider-Man 2.
  1. The manufacturer starts churning out discs, then sells to a network of distributors. They, in turn, sell to teams of vendors and street peddlers.Hours later: Movie is downloaded and thousands of copies are made. First counterfeit DVDs for sale are seized in New York, New Jersey and the Philippines.
  1. Other bootleggers get the bogus DVD and start making their own versions. Meanwhile, online pirates obtain the disc and post its contents to the Internet.A week later: Bootleg DVDs of “Spider-Man 2” have been seized in nine countries.
  1. Manufacturers around the globe download the movie file from the Internet and produce more copies to feed their own networks of distributors and retailers. By the end of July: Authorities have recovered contraband copies in 22 countries. Virtually all the copies can be traced to three illegal recordings, done at 12:01 a.m. June 30.

That last paragraph bears emphasis: Thousands of pirated copies sold in almost two-dozen countries thirty days after the film’s release can all be traced to three illegal recordings at Manhattan theaters on opening night.

Quite reminescent of the social epidemic theory outlined in Malcolm Gladwell’s The Tipping Point. According to Gladwell, the key to an epidemic is “the law of the few”, “the stickiness factor”, and “the power of context.” A couple of cammers (“the few) record and distribute on the Internet extraordinarily popular (“sticky”) movies, and the global culture of online contraband movies (“context”) creates a tremendous market for the product. The end result: a global epidemic of a popular pirated movie.

Gladwell’s response to criminal epidemics is James Q. Wilson’s theory of “Broken Windows.” “If a window is broken and left unrepaired, people walking by will conclude that no one cares and no one is in charge. Soon more windows will be broken, and the sense of anarchy will spread from the building to the street on which it faces, sending a signal that anything goes.” (p. 141). He suggests that the solution to major crime is to change the environment that spawns minor crime.

What if every country that tolerated piracy was treated by the world community like an urban neighborhood that tolerated broken windows? Will changing the social context in these countries on “petty” theft like piracy alter their attitude about the rule of law for more serious offenses? What if we were to employ, as USTR recently announced, “all tools and resources at our disposal to bring pressure to bear on countries to reform their intellectual property regimes”? This list of recent enforcement efforts is encouraging. Piracy epidemics will no doubt continue, but stricter enforcement efforts brought to bear against targeted countries might stem the tide. That’s good not simply for fighting piracy, but for pomoting the rule of law in those countries.

Gore Drops Litigation With Lieberman in Bush Cabinet

by Roger Alford

Well ok, not exactly. But that is how an American television drama would portray an American version of what has happened today in Germany. Coalition governments are nothing new in Europe, but to an American ear the idea that major opposition parties will have a coalition with Merkel’s CDU cabinet filled with key members of Schröder’s team is, well, a recipe for disaster. As the London Times reports, “She has won the chancellorship at last, but it’s a poisoned chalice. Far from being Germany‘s equivalent to Margaret Thatcher many people believe she is going to be a short-term leader.” Her power is severely limited. Social Democrats have taken eight of the 16 ministries (including foreign affairs, reform, employment, health, transport and finance). Merkel’s Christian Democrats will have eight ministries (including interior, economy, defense, agriculture, family and education), but she must give “two or three away to the Christian Social Union, her sister party in Bavaria. This leaves her only five or six posts.”

They are calling it a Grand Coalition, although it sounds more like a Grand Collision.

U.S. Senate Ratifies Three Possibly Meaningless Treaties

by Julian Ku

Lest it seems like the U.S. Senate is the graveyard of all treaties, it is worth noting that the U.S. Senate has recently ratified two conventions: the United Nations Convention Against Transnational Organized Crime and the Inter-American Convention Against Terrorism as well as a Protocol of Amendment to the International Convention on the Simplification and Harmonization of Customs Procedures. The two conventions passed by division vote and the protocol won an 87 votes in support and none against.

None of these treaties are particularly controversial and none may be all that important, given that no newspaper has or will cover their ratification. Indeed, it is unclear what obligations these treaties impose that the U.S. does not already impose on itself. For instance, the U.S. has tacked on an “understanding” to the Transnational Organized Crime Convention that essentially limits the treaty’s obligations to whatever is required under existing federal and state law. Here is the partial text of the reservation shielding state laws from any obligations under the treaty:

(1) The United States of America reserves the right to assume obligations under the Convention in a manner consistent with its fundamental principles of federalism, pursuant to which both federal and state criminal laws must be considered in relation to the conduct addressed in the Convention. U.S. federal criminal law, which regulates conduct based on its effect on interstate or foreign commerce, or another federal interest, serves as the principal legal regime within the United States for combating organized crime, and is broadly effective for this purpose. Federal criminal law does not apply in the rare case where such criminal conduct does not so involve interstate or foreign commerce, or another federal interest. There are a small number of conceivable situations involving such rare offenses of a purely local character where U.S. federal and state criminal law may not be entirely adequate to satisfy an obligation under the Convention. The United States of America therefore reserves to the obligations set forth in the Convention to the extent they address conduct which would fall within this narrow category of highly localized activity. This reservation does not affect in any respect the ability of the United States to provide international cooperation to other Parties as contemplated in the Convention.

Further, the Senate added that:

The United States of America declares that, in view of its federalism reservation, current United States law, including the laws of the States of the United States, fulfills the obligations of the Convention for the United States. Accordingly, the United States of America does not intend to enact new legislation to fulfill its obligations under the Convention.

So the signing and ratifying the treaty will not require the U.S. to in anyway alter its domestic laws. I don’t have a problem with this, although it does make me wonder why it took four years from the treaty being signed to the time of its ratification…

Nobel Nuclear Disarmament Decennial Peace Prize

by Roger Alford

I always follow the news of the Nobel Peace Prize with great interest and occasionally I find myself pleased with their choices. But this year something struck me as particularly odd. Every ten years the Nobel Peace Prize returns to the subject of nuclear disarmament, and each time it goes to a peaceful dove and not a peace-loving hawk.

In 1975 it went to nuclear physicist Andrei Sakharov who made his name as an opponent of nuclear proliferation and spoke eloquently in his Nobel Lecture about the need for nuclear disarmament.

In 1985 it went to the little-known organization called the International Physicians for the Prevention of Nuclear War (IPPNW), which is “dedicated to mobilizing the influence of the medical profession against the threat of nuclear weapons.”

In 1995 it went to the Pugwash Conferences on Science on World Affairs “for their efforts to diminish the part played by nuclear arms in international politics and, in the longer run, to eliminate such arms.”

Now, in 2005 the prize goes to the International Atomic Energy Agency (IAEA) “for their efforts to prevent nuclear energy from being used for military purposes…”

Which raises the very serious question of whether only NGOs and IGOs should be recognized for their peaceful nuclear disarmament efforts, or whether military force should be recognized for its role in maintaining and restoring peace.

The Nobel Peace Prize has been awarded to a military recipient only once: in 1988 when it went to U.N. Peacekeeping Forces. Even then it was because “their presence made a decisive contribution towards the initiation of … peace negotiations.” Of course, military men have won the Nobel Peace Prize in the past as well–think George Marshall in 1953 and Teddy Roosevelt in 1906–but never for their military exploits.

It appears that with such awards the Nobel Committee is committed as much to the means of peace as to its ends. The message: peaceful means to secure peaceful ends. But what of military means to secure peaceful ends? Of course few would quibble with the obvious truth that force is sometimes the only way to secure and restore peace. Article 39 of the U.N. Charter recognizes the tautology that threats to the peace or breaches of peace shall be met with measures necessary (i.e., force) to maintain and restore international peace and security.

And if so, then why shouldn’t military exploits that truly do secure peace be rewarded? Why weren’t George H.W. Bush and the U.N. Security Council awarded the Nobel Peace Prize in 1992 for their monumental efforts to liberate Kuwait and restore international peace and security? More obviously, how can you justify awarding the Nobel Peace Prize in 1947 to the Quakers instead of Winston Churchill? Norway and all of Europe owed its peace to the courage of Winston Churchill and the blood of Allied Forces, not the pacificism of the Society of Friends.

So who will win the Nobel Peace Prize in 2015? It won’t be West Point or the Royal Military Academy in Sandhurst, England. But perhaps one of them should.

David Brooks: The "Hardest Working People on Earth"

by Roger Alford

Interesting column by David Brooks in the New York Times on Sunday. Money quote:

I believe that social mobility is the core of the American experience. I believe that society should be structured so that as many boys and girls as possible can work, and rise the way young Hamilton and Lincoln did.

If something is going to make American society more fluid and dynamic, then I am for that thing. That’s why I love globalization, even while I am aware of its costs. I love the fact that American businesses are going to be improved via competition with Chinese and Indian rivals. I love the fact that to compete we are going to have to reform our lobbyist-written tax code into something flatter and fairer. I love the fact we’ll have to make health insurance competitive and portable, so workers can move and companies can thrive.

I can’t believe people want to shield America behind the walls of “fair trade agreements.” I can’t believe some people think we’re going to be overrun by those hustling Asians. Americans are the hardest-working people on earth and the most mobile….

When I cut myself loose from the push and shove of today’s weary political titans, and go back to basics, I find myself strangely invigorated.

International trade and competition are nothing to fear if you are an American. I would bet others will disagree that Americans are the hardest-working, mobile people on earth. But we are happy to compete on that score.

You’d Be Smiling Too (If You Had Won the Nobel Peace Prize)

by Peggy McGuinness


It was announced today that the International Atomic Energy Agency and its director, Mohammed ElBaradei, were awarded the Nobel Peace Prize for 2005. The Committee cited Baredei and IAEA “for their efforts to prevent nuclear energy from being used for military purposes and to ensure that nuclear energy for peaceful purposes is used in the safest possible way.” They join these past winners.

If you, like me, wonder who else was nominated, you won’t have the satisfaction of finding out. The Nobel Committee, unlike the Academy of Motion Pictures, does not release the list of those nominated in a given year. There is no short list of nominees announced in advance, no red carpet, no deconstructing of the nominees fashion choices. Only the nominators and, if they tell the nominee, the nominees themselves know about the nomination, though they often issue press releases to let the world in on it. But, similar to the Academy Awards, not just anyone can make a nomination. Nominators are restricted to a group that reflects the “principle of competence and universality” which under the Nobel Statute means:

1. Members of national assemblies and governments of states;
2. Members of international courts;
3. University rectors; professors of social sciences, history, philosophy, law and theology; directors of peace research institutes and foreign policy institutes;
4. Persons who have been awarded the Nobel Peace Prize;
5. Board members of organizations who have been awarded the Nobel Peace Prize;
6. Active and former members of the Norwegian Nobel Committee; (proposals by members of the Committee to be submitted no later than at the first meeting of the Committee after February 1) and
7. Former advisers appointed by the Norwegian Nobel Institute.

Yes, that’s right: law professors! Who knew we had so much power?

Israeli Supreme Court Bans Use of Palestinian Civilians as "Human Shields"

by Roger Alford

On Thursday the Israeli Supreme Court ruled that the military cannot use Palestianian civilians as human shields when entering the homes of suspected terrorists. “You cannot exploit the civilian population for the army’s military needs, and you cannot force them to collaborate with the army,” Chief Justice Aharon Barak wrote in the ruling. “The central tenet is that it is mandatory to distance innocent local residents from the area of the hostile actions.” As for the use of consenting Palestinians to assist in raids of terrorist homes, the Court ruled “when an army unit comes at night no one would refuse to cooperate out of fear…. Ninety-nine times out of 100, it is not free will.”

The Jerusalem Post has details. The decision is not available in English but should be available in Hebrew at the Israeli Supreme Court website. A report on the practice of “human shields” by the Arabic organization that brought the challenge is here.
Without access to the opinion I will refrain from expressing my thoughts on the Court’s decision, although comments are welcome.

"Torture and the War on Terror": A Symposium with Even More Discussion of Detainee Interrogation Policies

by Julian Ku

I have been travelling today, so I don’t have much more energy left to respond to Peggy’s post, most of which I agree with anyway. Let me just say that I think the somewhat sketchy news reports on the actual substance of the legislation passed by the Senate may have misled Peggy on the scope of the Senate’s amendments. As I understand it, the legislation has two components: (1) It would require the military to adhere to the Army Field Manual; (2) It would require all U.S. personnel, including non-military personnel such as those in the intelligence agencies, to avoid “cruel, inhuman, and degrading” treatment of detainees held in U.S. custody overseas. Importantly, the “cruel, inhuman, degrading” language has been understood by the U.S. to coincide with the Eighth Amendment’s ban on cruel and unusual punishment. But it is possible that the legislation might be interpreted to incorporate international standards of “cruel, inhuman, and degrading” which go beyond what the Eighth Amendment requires. So the legislation may sweep quite broadly.

There is obviously lots more to say about this topic, which is why I am currently in Cleveland at Case Western Reserve School of Law’s symposium on “Torture and the War on Terror.” (a webcast can be found here). Our topic, not surprisingly, is treatment of detainees held by the U.S. in the war on terrorism. Lots of interesting scholars, advocates, and practitioners will be speaking (including myself, for what it’s worth).

ICC Watch: Arrest Warrants Issued for Ugandan Rebels

by Julian Ku

The International Criminal Court has issued indictments for the five leaders of the Lord’s Resistance Army (LRA) in Uganda. These are the first warrants the ICC has ever issued, although the ICC website has no official info on these warrants.

According to a U.N. official, the notifications went out last week to the governments of Uganda, Sudan and the Democratic Republic of the Congo, where a remnant of the LRA has taken refuge. It will be interesting to see the reaction of these governments.

It will also be interesting to see whether these arrest warrants will interfere with the ongoing peace negotiations in Uganda. The ICC Prosecutor has made great efforts to show its political sensibility, but, as I noted here and here, it is entering dangerous ground.

What Congress Has Done and Not Done to Limit Inhumane Treatment

by Peggy McGuinness

Julian’s post below on the bill passed by the Senate today misses a few key points. First, the standards set out in the bill will not apply to all detainees being held by the US, but only to those held by military personnel. This leaves the still troubling question of what the administration’s current policy is toward non-military interrogations. (But it does get address the enormous public diplomacy problem presented by Abu Ghraib.) Second, the standard barring “cruel, inhuman or degrading treatment” (language that is replicated in the Torture Convention) was already contained in the obligations under the Geneva Conventions. Setting aside the technical legal argument, as a matter of policy, it wasn’t until this administration that the US military was confronted with the notion that it might not be held to the GC standard. Indeed, it was the military that begged the Senate for additional guidance, even though its own internal standards (the Army Field Manual, for example) long required the higher standard of treatment.

Finally, by stating that “there is no serious legal objection to Congress getting involved in this process,” seems to imply that there are non-legal objections to Congress getting involved. What are those? Perhaps pesky checks on unbridled executive power raise the “inconvenience” objection? Or is it that there is a defense for allowing military personnel to treat detainees and POWs in a manner that is not only contrary to our obligations under international law, but also offends more deeply held beliefs that we are better than that? Harold Koh might call our nation’s insistence that we are better than that “good American exceptionalism.” Senator John McCain might just call it morality. But it is inextricably linked with our strong tradition of the rule of law. Senator McCain’s full statement today:

Mr. President, war is an awful business. I know that. I don’t think I’m naive about how severe are the wages of war, and how terrible are the things that must be done to wage it successfully. It is a grim, dark business, and no matter how noble the cause for which it is fought, no matter how valiant the service, many veterans spend much of their subsequent lives trying to forget not only what was done to them and their comrades, but some of what had to be done by their hand to prevail. I don’t mourn the loss of any terrorist’s life nor do I care if in the course of serving their ignoble cause they suffer great harm. They have pledged their lives to the intentional destruction of innocent lives, and they have earned their terrible punishment in this life and the next.

What I do regret, what I do mourn, and what I do care very much about is what we lose, what we — the American serviceman and woman and the great nation they defend at the risk of their lives — what we lose when by official policy or by official negligence — we allow, confuse or encourage our soldiers to forget that best sense of ourselves, our greatest strength: that we are different and better than our enemies; that we fight for an idea — not a tribe, not a land, not a king, not a twisted interpretation of an ancient religion — but for an idea that all men are created equal and endowed by their Creator with inalienable rights.

I have been asked before where did the brave men I was privileged to serve with in Vietnam draw the strength to resist to the best of their ability the cruelties inflicted on them by our enemies. Well, we drew strength from our faith in each other, from our faith in God, and from our faith in our country. Our enemies didn’t adhere to the Geneva Convention. Many of my comrades were subjected to very cruel, very inhumane and degrading treatment, a few of them even unto death. But everyone of us knew, every single one of us knew and took great strength from the belief that we were different from our enemies, that we were better than them, that we, if the roles were reversed, would not disgrace ourselves by committing or countenancing such mistreatment of them. That faith was indispensable not only to our survival, but to our attempts to return home with honor. Many of the men I served with would have preferred death to such dishonor.

The enemies we fight today hold such liberal notions in contempt, as they hold the international conventions that enshrine them such as the Geneva Conventions and the treaty on torture in contempt. I know that. But we’re better than them, and we are the stronger for our faith. And we will prevail. I submit to my colleagues that it is indispensable to our success in this war that our servicemen and women know that in the discharge of their dangerous responsibilities to their country they are never expected to forget that they are Americans, the valiant defenders of a sacred idea of how nations should govern their own affairs and their relations with others — even our enemies.

Those who return to us and those who give their lives for us are entitled to that honor. And those of us who have given them this onerous duty are obliged by our history, and by the sacrifice — the many terrible sacrifices — that have been made in our defense, we are obliged to make clear to them that they need not risk their or their country’s honor to prevail; that they are always, always — through the violence, chaos and heartache of war, through deprivation and cruelty and loss — they are always, always Americans, and different, better, and stronger than those who would destroy us. God bless them as he has blessed us with their service.

Update 10/7/05:
Julian rightly corrects me on the point about intelligence agencies. The amendment (full text here via Jurist) includes in Section 2(a) language that refers to any individuals in “custody of under the physical control of the United States Government.” This would not, of course, prevent rendition practices, although could plausibly include contractors acting on behalf of the USG (regardless of the nationality of the contractor).

Congress Speaks – Defining Detainee Interrogation Policies

by Julian Ku

The U.S. Senate has voted, by a 90-9 veto-proof margin, to establish uniform and clear interrogation policies for the interrogation of individuals detained in the war on terror. Apparently, the amendment (which would be attached to a spending bill) would require adherence to the Army’s existing field manual for interrogation.

I am obviously no expert in the effectiveness of interrogation methods supported by this provision, or the ones defended by the administration. (For a rousing defense of Congress’ amendment, from the Weekly Standard no less, see here). But I do think that there is no serious legal objection to Congress getting involved in this process.

Congress has fairly broad authority in this area. Of course, there is a limitation on any statute created by the Commander in Chief clause of the U.S. Constitution (the existence of which I have defended here). But that limitation is itself extremely limited and could only be invoked in the rarest of circumstances. This is almost certainly not that circumstance.

On the other hand, I don’t think that Congress’s intervention here suggests that the President’s prior policy of allowing more coercive interrogation techniques was somehow illegal, as many international lawyers have contended. In my view, the President has the discretion to set policies in this area unless and until Congress decides to get involved. Congress has been silent for a long time in this area and it is almost certainly a good thing that it is finally speaking.

"Class Action" Litigation Before the ECHR

by Roger Alford

The European Court of Human Rights last week rendered its long-awaited “class action” settlement decision in Broniowski v. Poland. The case is here and the official press release summarizing the case is here.

The case involved systemic unlawful confiscation of property by the Polish government relating to the redrawing of Poland following the Second World War. In a June 22, 2004 decision, available here, the ECHR ruled that the claim of Broniowski also implicated 80,000 similarly-situated claimants and that Poland must address their claims for compensation as well. On March 7, 2005 the Polish government approached the ECHR and asked the Court to facilitate a friendly settlement between the claimants and the government.

In the class action settlement judgment (or the so-called “pilot judgment procedure”) issued last week, the Court justified the procedure as “primarily designed to assist the Contracting States in fulfilling their role in the Convention system by resolving such problems at national level, thereby securing to the persons concerned the Convention rights and freedoms…, offering to them more rapid redress and, at the same time, easing the burden on the Court which would otherwise have to take to judgment large numbers of applications…” (para. 34) According to the press release, “It is the first time that one of the Court’s judgments has set out general as well as individual remedial measures.”

The implications of such an approach are profound. The ECHR can now issue “pilot decisions” that will require systemic, national relief to a class of similarly-situated claimants. The governments will then negotiate with the claimants under the supervision of the Court and the Court will render its settlement judgment. Anyone who has any experience with class action litigation in the United States understands the potential implications of this procedural tool. Obviously there will be significant differences between the ECHR’s “pilot judgment procedure” and Rule 23 class actions in the United States. But human rights mass claims litigation has established a foothold in Strasbourg and no doubt has the potential to take Europe by storm.

The ICJ President: Is Chinese Hypocrisy Better Than American Hypocrisy?

by Julian Ku

I wouldn’t usually take note of this commonplace account of an address to Canadian lawyers by Justice Shi Jiuyoung, the current President of ICJ, except for a couple of statements of interest.

First, Justice Shi defended the ICJ from charges that it moves way too slowly on the grounds that the procedures and various jurisdictions involved in interstate disputes. Moreover, he said that “[i]n recent years, the court has taken a full review of its operations and as a result has introduced mechanisms to enhance its internal functions.” My skepticism of these very minor changes can be found here.

More surprisingly Justice Shi commended Canada for its leadership in the development of international law, especially the International Criminal Court. This is surprising because, of course, the most important country that has refused to join the ICC (other than the United States) is, of course, China. The Canadian paper doesn’t mention this point, and I wonder if the paper would have skipped over this point if a U.S. judge had made the same laudatory comments about the ICC.

"Chorus of Hisses" Rains Down on Bolton at Yale

by Roger Alford

This is an interesting story. U.N Ambassador John Bolton addressed over 400 students at the Yale Political Union and was greeted with a chorus of boos and loud hisses. My favorite part is a Yale sophomore* reportedly chastising the Ambassador for being “extremely rude” to the undergraduate audience who were loudly hissing at him. But then he admits that Bolton “won the debate”!

What seems like audacious conduct on the part of nineteen-year-old undergrads is in fact custom for YPU events, with speakers routinely “pounded” with applause by compatriats and hissed down by the opposition.

A far cry from the alarming incident that occurred at NYU law school this past spring, in which law students exercised a heckler’s veto in shouting down Justice Scalia at a ceremony at the law school, resulting in a rebuke from Dean Richard Revesz and ACLU President Nadine Strossen.

* UPDATE: The name of the Yale sophomore was originally posted but has since been deleted.

Now on Video: “Two Justices, Two Lords and a Lady”

by Roger Alford

Last week Harvard Law School hosted an Anglo-American Legal Exchange addressing the topic of judging. The American justices were represented by Justices Antonin Scalia and Stephen Breyer and the British Law Lords were represented by Lords Rodger and Scott, and Lady Justice Arden. You can watch the video here.

In terms of sheer entertainment value the Americans beat the Brits hands down. Breyer and Scalia were in full form, while the Law Lords responded in the bracingly old-fashioned way that someone named Lord Rodger of Earlsferry or Lord Scott of Foscote should respond.

The low point was Dean Kagan’s self-congratulatory introduction of the panelists (2nd minute, Real Player) in which she noted that with the appointment of Chief Justice Roberts a majority of the justices are now Harvard Law School alums, so Harvard can “win every case.” Oh please. I suppose she inadvertently failed to mention that by her count white male Republicans win every case too.

There were numerous highlights. The first was Justices Scalia’s and Breyer’s discussion of the judicial role. Scalia suggested (25th minute) that Chief Justice Roberts’ baseball analogy is not entirely correct because of the Court’s system of certiorari. Lower courts often get it wrong and yet we don’t take certiorari. In this sense the focus is not on securing justice. On doing justice, Scalia said, “Drive out of your mind the notion that I care about your client… I am not about to do justice … to your client at the expense of doing injustice to hundreds of others… I am much less interesting in your client than about the rule of law which will be adopted thousands of times by the lower courts without the benefit of my review.” Justice Breyer’s response (29th minute), “That sounds a little callous…. But on the whole correct…. As I joke with my brother (who is a district court judge), the role of the district court is to rule wisely, quickly, and fairly, but that is not to say the job of the appellate judge is to decide slowly, foolishly, and unfairly, for that would usurp the role of the Supreme Court.”

Justice Scalia praised (44th minute) the British system of picking judges as a true meritocracy in which the bar picks the best judges to be Law Lords without regard to politics, whereas our system of appointing judges is an avowedly political system. Justice Breyer disagreed (46th minute) and said the vast majority of judges are qualified people and that the newspapers give a “warped idea of the extent to which politics enters into the process.”

Lady Justice Arden argued (51st minute) that judges should not have agendas. “We don’t go into cases with an agenda. We don’t have agendas and we shouldn’t have agendas.” Scalia’s response: “It is not agendas, but different philosophies of deciding” that explain the different approaches among members of the Court.

Lord Rodger’s discussion (55th minute) of the death penalty in various Caribbean countries was quite illuminating. These cases forced Law Lords sitting as the Privy Council to address similar concerns of constitutional interpretation in the British system. These countries do have written constitutions with a bill of rights and various death penalty challenges have raised similar issues of judicial interpretation. “It is very hard to say that it wasn’t partly a feeling about the death penalty which brought this issue to the fore…. It did lead to one lot saying the constitution should be interpreted as a living instrument … and other people [taking] a rather strict constructionist view.”

Justice Breyer quipped (105th minute) that writing opinions is like attending a faculty meeting. “People sit there and think ‘I hope it’s going to be short’…. Then people start to talk and then think, ‘If everybody else will just keep quiet and we can get out of here.’ But then there comes a tipping point, and at the tipping point enough people have spoken that others think ‘Well if everyone is going to speak they might as well hear something intelligent.’”

The final question was on the use of foreign law. There was a 3-2 split among the panelists on the practice. Lord Scott argued (119th minute) that judges would be neglecting a valuable tool if they didn’t look to such decisions. “It’s absurd not to do that.” To which Justice Scalia replied, “Spoken as a good common law judge and were I a common law judge I think I would do the same. If I were making up the law, I would go and see how other countries thought it was good to make it up…. Now I agree if you believe in a living Constitution, then of course consult foreign law… You may as well consult the Ouija Board.” Breyer’s response: “The notion that it is a new idea to look to other places to find out how people settle similar legal problems is perhaps an ahistorical notion.” Lord Rodger’s view: “The inevitable tendency is that you look with favor on the cases that decide the point in the way that you … want to decide it,… and you reject the vast tract of authority that goes the other way…. I get relatively little assistance from them.” Lady Arden noted that in the British system we are bound by EU and ECHR decisions. But beyond that, with human rights, we are greatly assisted by how other judges thought about fundamental problems. “It is helpful.”

Well that clears things up. If you don’t do it you are absurd and ahistorical; if you do do it you may as well be picking your friends or channeling the dead. Let’s just hope that if this latter interpretive device gains currency there will be a preference for channeling the Founding Fathers rather than Sir William Blackstone.

Posse Comitatus and the Shield of Achilles

by Chris Borgen

In the aftermath of Hurricanes Katrina and Rita, and in anticipation of any possible catastrophic terrorist attack, there’s been a lot of talk lately about revising the Posse Comitatus Act of 1878. (See here and here.) The Act (as amended) explicitly prohibits the use of the Army or Air Force for civilian law enforcement. It reads in whole:

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.

Although this is a criminal statute prohibiting the use of the Army or Air Force by civilian authorities for law enforcement, it has come to be viewed as a more general policy statement concerning the limits of military authority in the civilian sphere. As such, DoD regulations have directed the Navy and Marine Corps to act as if the Posse Comitatus Act applied to them as well.

Col. John Brinkerhoff, (USAF ret.) who is a former Associate Director of FEMA, has described this shifting interpretation of the Posse Comitatus Act. He argues that the Act, as written, is vague and imprecise and a more thorough modern statute is needed to properly define the military/civilian relationship in today’s terms.

While the Act may be vague, there is disagreement as to whether the proper response is a loosening to allow broader use of military personnel. Major Craig Trebilcock has written that “The erosion of the Posse Comitatus Act through Congressional legislation and executive policy has left a hollow shell in place of a law that formerly was a real limitation on the military’s role in civilian law enforcement and security issues.”

Perhaps stemming from this sense that the Posse Comitatus Act has already been gutted, there are others who argue that rather than loosening the Act, its original conception must be reaffirmed. A student note from a 1997 issue of the Washington University Law Quarterly argues why any relaxation of the Act is a bad idea. Military analyst Austin Bay is also wary of weakening the Act, arguing that while the military is very good at providing emergency communications and transportation assets, usurping the responsibilities of state and local officials is a mistake. As he explains, “Local and state authorities have both the intimate and institutional knowledge that translates into better crisis planning and better crisis improvisation.”

The arguments against a weakening of the Act generally boil down to (a) we don’t want to go down a slippery slope in allowing increased military involvement in civilian affairs and (b) local law enforcement is better at most of this stuff anyway.

This is an important issue that can set the tone for how we respond to future crises ranging from terrorist attacks to natural disasters to riots. Even complex criminal investigations. In The Shield of Achilles author Philip Bobbitt, a scholar and practitioner in national security and constitutional law, argued that the interplay of law, history, and strategy defines how states organize themselves. As military threats and strategies evolve, so do states. The possible revision of the Posse Comitatus Act is part of a larger debate as to whether we have struck the right balance in the allocation of powers in the face of current threats. The arguments that are made as part of this discussion, as well as the result itself, may tell us much about how we are—or are not—being changed by recent events.

What’s Next After Roper and Atkins?

by Roger Alford

Now that the Supreme Court in Roper and Atkins has relied on foreign and international practices to rule that capital punishment is cruel and unusual when applied to juveniles and the mentally disabled, there has been much speculation as to whether this portends the abolition of the death penalty entirely. My prediction is that the next push for comparative constitutionalism in the Eighth Amendment context will not be the death penalty but rather juvenile life sentences. A story in the New York Times on Sunday noted that “Western Europeans regard 10 or 12 years as an extremely long term, even for offenders sentenced in theory to life,” and that “life without parole was a legal impossibility in much of the world.” Article 37 of the Convention on the Rights of the Child, which the Roper Court relied upon, provides that “neither capital punishment nor life imprisonment without possibility of release shall be imposed” for juveniles. The Times’ story is a rather open and unobjective appeal to question the American approach in meting out this punishment.

The problem is the Court in Roper relied on the continued practice of punishing juveniles with this sentence as a justification for eliminating juvenile death penalty. “To the extent the juvenile death penalty might have residual deterrent effect, it is worth noting that the punishment of life imprisonment without the possibility of parole is itself a severe sanction, in particular for a young person.” The possibility of life without parole for juveniles was a justification for the result in Roper. It will be difficult for Roper to now be a justification for the impossibility of life without parole.

More importantly, assuming a global consensus against the punishment of life without parole for juveniles, it will be exceedingly difficult to identify a national consensus in this country against the practice. The New York Times survey highlighted the strong trend toward this punishment, not away from it. According to the survey, approximately 4,000, or 3 percent of all 132,000 prisoners sentenced to life without parole, were juveniles when they began their sentence. It is doubtful that existing community standards in this country will support abolition of this practice. And Roper underscored that we only look to foreign opinion to confirm the centrality of rights within our own heritage.

Capitalism, er, Socialism with Chinese Characteristics

by Roger Alford

This weekend marked the 56th anniversary of “communist” rule in China. In a speech at Tiananmen Square Premier Wen Jiabao proclaimed that “History has eloquently proved that socialism with Chinese characteristics and the road that Chinese people have chosen are the only right way.” Which essentially means that they will follow Deng Xiaoping’s maxim to “seek truth from facts,” which means “do what works,” which means “capitalism.” Whereas Marx proclaimed the “abolition of private property,” the Chinese Constitution now proclaims that “citizen’s lawful private property is inviolable.” It is of course inconvenient for a Marxist society to proclaim that they are marching inexorably toward the “only right way” of capitalism. Better the euphemism “socialism with Chinese characteristics.” Although their economic motto 具有中国特色的社会主义 uses Chinese characters, speak to any Chinese entrepeneur today and they will increasingly pronounce it with a cheerful 18th-century Scottish lilt.