Archive for
December, 2005

Gelukkig NieuwJaar!

by Julian Ku

As some of you have noticed, my blogging has been very light as of late. As I mentioned in a prior post (I think), I am currently teaching a winter course at the University of the Netherlands Antilles on the Dutch Caribbean island of Curacao. The winter course is co-sponsored by Hofstra, the University of Baltimore, and Erasmus University in Rotterdam. It’s a tough job to leave the wet snow in Long Island and to come down to teach amid sunny skies, beaches, and 80 degree weather, but someone has got to do it. (And for those of you readers who are law students, and want a chance to argue with me in person, feel free to sign up for the program next winter).

Due to my Curacao sojourn so I haven’t been able to follow up on the zillions of interesting stories including the continued fallout from the NSA spying program, the continuing legal struggle over Padilla and enemy combatants, and all the other stuff I would normally blog about. Thankfully, my co-bloggers have more than picked up the slack.

So let me content myself by wishing all of our readers a Gelukkig NieuwJaar, or Happy New Year and to thank them for keeping us in their bookmark files. This first year of Opinio Juris has been a lot of fun and I look forward to the next year with great anticipation. See you all next year!

Case of the Month: Xenides-Arestis v. Turkey

by Roger Alford

My vote for the most important international law case in December is the ECHR’s decision in Xenides-Arestis v. Turkey. The decision is available here and the official press release is here.

Arestis involved the deprivation of property rights as a result of the continuing division of Cyprus and the Turkish occupation of northern Cyprus. Arestis is a Greek-Cypriot who lives in Nicosia, the capital of Cyprus. She owns land, houses and a shop in northern Cyprus but has been prevented from living in her home or using her property since August 1974 as a result of the continuing division of Cyprus.

The applicant brought a property claim pursuant to Article 8 of the ECHR against Turkey. The Court concluded that the deprivation of her rights to enjoy her property constituted a violation of Article 8 of the European Convention.

But by far the most significant aspect of the decision is the Court’s opinion requiring Turkey to address this issue in a systematic way in relation to all similarly-situated applicants:

It is inherent in the Court’s findings that the violation of the applicant’s rights … originates in a widespread problem affecting large numbers of people…. Moreover, the Court cannot ignore the fact that there are already approximately 1,400 property cases pending before the Court brought primarily by Greek-Cypriots against Turkey….. The Court considers that the respondent State must introduce a remedy, which secures genuinely effective redress for the Convention violations identified in the instant judgment in relation to the present applicant as well as in respect of all similar applications pending before the Court, in accordance with the principles for the protection of the rights laid down in Articles 8…. Such a remedy should be available within three months from the date on which the present judgment will be delivered and the redress should occur three months thereafter. (paras. 38-40).

In short, the ECHR is ordering Turkey to compensate every Greek-Cypriot who has a claim against Turkey for the deprivation of three decades of use and enjoyment of their property in Turkish-occupied northern Cyprus (“TRNC”).

As reported here, one of the principal reasons that the Annan Plan for Cyprus was rejected by the Greek Cypriot community in 2004 was concern for Turkish settlers living on Greek Cypriot owned land. The ECHR decision is an alternative approach to resolving that aspect of the conflict.

Both sides are now trying to interpret the decision, with Greek Cypriots arguing that the decision requires an effective remedy of restoration of properties and compensation for the loss of use, while the Turkish press is arguing that the case affirms the use of an internal compensation commission within the TRNC to resolve the claims.

The Arestis case represents another example of the ECHR using its authority to resolve hundreds of disputes in a mass-claims process. The approach mirrors the earlier decision of the ECHR in Broniowski v. Poland discussed here and here. As I predicted there, “class action” litigation is garnering support in Strasbourg and will grow in popularity.

"Serpico" On Trial in Spain for Torture

by Roger Alford

As reported here, Ricardo Miguel Cavallo, a.k.a. “Serpico” or the “Angel of Death” can be tried in Spain for alleged torture committed over twenty-five years ago in Argentina. “The National Audience ruled that it has jurisdiction to try Cavallo for the crimes he allegedly committed under the Argentine dictatorship (1976-1983) …. This ruling gives Spanish courts universal jurisdiction to try crimes against humanity, no matter what the victims’ nationality.”

According to reports here, Judge Garzón has accused Cavallo of having participated in 227 kidnappings and acts of torture concerning 110 people, as well as in the kidnapping of 16 babies who had been removed from their mothers who were in prison.

It is increasingly clear that just as the United States is the world’s most important jurisdiction to litigate civil claims for human rights abuses, Spain is becoming the most important jurisdiction for the criminal prosecution of human rights abusers under a theory of universal jurisdiction.

Human Rights and International Law

by Seth Weinberger

Today’s New York Times has an interesting piece on the promotion of human/women’s rights in Africa and the tension between such rights and local custom. This is an excellent illustration of the central problem with international law (at least from a political science perspective). As I have discussed in several other posts here, the critical tension is between sovereign equality of states and the creation of strong, enforceable law. As the Times article makes clear, international legal standards, especially in an area like human rights, often runs counter to local practice, tradition, and custom in the developing worlds. For example, the rights of women to hold property or the practice of female genital cutting (both mentioned in the article) seem to be clear violations of internationally accepted norms.

In order for international law to be successful, it will have to challenge and likely make illegal many such practices. This is a problem for those believers in cultural relativism, or opponents of western “cultural imperialism.” In my experience, many supporters of broadening the breadth and scope of international law into domestic jursidictions like women’s rights are hesitant to acknowledge that doing so requires judging other cultures and declaring their traditions barbaric and illegal. This problem is compounded when international law seems to coincide with western standards for human rights or the treatment of women.

So, I’ll pose a question to all of you international lawyers out there: How can this problem be resolved? And this is not a rhetorical question. If law is to flourish, it must make judgments about right and wrong. On the other hand, if we are to protect the diversity of other cultures and prevent or slow the spread of western values, then the international community must promote sovereignty instead of law. Are you willing to promote the law at the expense of cultural diversity? Personally, I would be, although I can see few international mechanisms by which such decisions could be made. How can the international community agree on standards that violate the sovereign right of nations and peoples to govern themselves?

ACLU Files First Domestic Violence Case Against the United States at the Inter-American Commission on Human Rights

by Peggy McGuinness

The ACLU announced yesterday that it has filed a petition against the United States at the Inter-American Commission on Human Rights on behalf of Jessica Gonzales, a Colorado woman and victim of domestic violence. She lost her claim in US federal courts, which she argued all the way to the US Supreme Court, that the failure of local police to enforce a restraining order against her estranged husband was a violation of her substantive and procedural due process rights and that the police were therefore liable under 42 USC 1983 (civil rights claims) for the husband’s murder of their three children. The US Supreme Court ruled against her 7-2 (Ginsberg and Stevens in the dissent), finding that she had no individual right to have the restraining order enforced.

As the ACLU explains:

Gonzales is a Colorado woman whose three children were brutally murdered by her estranged husband when local police refused to enforce her restraining order. She repeatedly called the police, telling them of her fears for the safety of her daughters and guiding them to the girls’ location. The police failed to respond and several hours later all three children were shot and killed by their father, the abductor, against whom Gonzales had a restraining order. The ACLU said that its concern is not limited to the specific Gonzales case. It extends more broadly to all victims of domestic violence who are not adequately protected by law enforcement. This case is the first individual complaint against the United States brought before any international human rights body for the violation of the rights of victims of domestic violence.

The petition (full text available here) to the IACHR:

seeks compensation for the violation of Gonzales’ rights, adoption by the United States of necessary measures to deter the commission of similar crimes, and an advisory opinion from the Inter-American Court of Human Rights on the obligations of the United States under international law to protect victims of
domestic violence.

This may prove an interesting case of human rights advocates using both national and international courts to establish a new cause of action. Those who have been following Medellin and subsequent cases brought under the the Vienna Convention on Consular Relations (see discussion here) may recall that the first international court decision finding that due process obligations can be read into the consular notification provisions of the VCCR was made in a 1999 advisory opinion of the IACHR. Unlike the US Supreme Court, the IACHR is empowered to issue advisory opinions.

Correction posted 1/2/2005: The US has not yet acceded to the CEDAW, despite playing a central role in its drafting. President Carter signed the treaty in 1980, and it was twice discussed and voted favorably out of the Senate Foreign Relations Committee (1994 and 2002). But it has to date not been sent to the Senate floor for a vote. The US is a signatory to the OAS Charter, but it is not a signatory to and has not accepted the jurisdiction of the IACHR. That means that a decision of the Court that would be binding on the US is not possible. But an advisory opinion (as happened in the VCCR case) is still possible based on the US membership in the OAS.

Because the US is not a signatory to CEDAW, any advisory opinion of the Court would have to draw on other sources of the right. The petition filed by the ACLU relies on the American Declaration on the RIghts and Duties of Man as the source of US obligation as a member of the OAS. And it relies on interpretations of other treaties, including CEDAW, to develop the argument about the contours of the right at issue.

The question of whether private acts — particularly domestic violence — can be considered acts of the state for the purposes of international human rights law has been addressed most extensively within the context of women’s rights. Female genital mutilation, for example, is mostly a private act. Domestic violence is committed by private actors. But the state has a responsibility to protect the human rights of all its citizens. The argument can thus be made that where a pattern of gender discrimination on the part of the state is established, international human rights obligations may be triggered. For a full discussion, see the CEDAW Committee General Recommendation No. 19, which concluded:

[D]iscrimination under the Convention is not restricted to action by or on behalf of Governments (see articles 2(e), 2(f) and 5). For example, under article 2(e) the Convention calls on States parties to take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise. Under general international law and specific human rights covenants, States may also be responsible for private acts if they fail to act with due diligence to prevent violations of rights or to investigate and punish acts of violence, and for providing compensation.

The facts of this case are somewhat different from the scenario contemplated by the General Recommendation. The physical act was not done to the woman herself (though it is clear from the facts she suffered from a pattern of abuse) but to the children. It was a novel claim when it was brought in the federal courts and is, as far as I know, the first such claim to be brought internationally.

Note: The initial post incorrectly stated that the US had acceded to CEDAW and IACHR. The US has signed, but not ratified, CEDAW. It has not acceded to the jurisdiction of IACHR but is a member state of the OAS, which has adopted the American Declartion of the Rights and Duties of Man as a source of human rights obligations for its members. Apologies for any confusion.

What’s Your School?

by Duncan Hollis

I’ve been grading exams this week and reading various student explanations of how a decision on an international legal issue (defining torture) will vary depending on whether the decision-maker has a positivist or naturalist approach to international law. Of course, I could have asked my students to consider other “schools” of international legal theory — e.g., the New Haven School, championed by scholars such as Myres McDougal and Michael Reisman, or the New Stream scholarship of Martii Koskenniemi and David Kennedy. Moreover, I could’ve asked my students to draw on the whole set of “international law and . . .” scholarship, whether it’s Anne-Marie Slaughter’s work integrating international relations theory with international law or my colleague Jeff Dunoff’s work with Joel Trachtman advocating an international law and economics approach. And that’s just the tip of the iceberg.

My question though is how much of this matters to the international law practitioner? I know when I worked at the State Department there was little discussion of international legal theory or reference to how it might influence the outcome of particular cases or problems. Now, of course, I think about theory much more. But I do wonder how often lawyers in practice rely on it, or even consider how the analysis of a particular problem they are facing might vary depending on which “school” of international law they apply. Put another way, I’d be interested in knowing whether those readers who practice international law rather than teach it, self-identify with a particular school of thought, and if so, which one?

"Munich" and the Role of Law

by Roger Alford

I saw Munich over the weekend and found it quite an astounding achievement by Steven Spielberg. One of the most complex and engaging movies he has produced in years. It certainly ranks up there with Schindler’s List and Saving Private Ryan. There are plenty of good reviews of the movie. The New York Times has two reviews here and here, and David Brooks’ take on it is here, and they are all worth reading. I will not attempt to replicate.

But there is one aspect of the movie that is intriguing and, as best I can tell, missing from the movie reviews so far. That aspect is the morality play about the role of law in the conduct of war and the role of law in preserving the humanity of a killer.

Law featured prominently in the movie through its absence. The early meeting with Golda Meir, the total secrecy of the mission, the lack of respect for codes of conduct, the flagrant and repeated violations of territorial sovereignty, the extrajudicial killings, the willful transgression of national and international laws. The lawlessness of the mission is not opaque, and the dialogue among the avengers is replete with reference to their breach of the rule of law.

But what is most interesting about the movie is the impact that this lawlessness has on the hero assassin, Avner. Because Avner recognizes his lawlessness, he becomes tormented with his own humanity, his own evil. He descends into an inferno of fear. Fear not so much of death, but the loss of his soul.

The chilling dialogue between Avner and his mother at the close of the movie suggests that she has the heart of a terrorist who is willing to do anything, sacrifice anything, for home. Her words echo the words of the PLO terrorist’s words earlier in the movie yearning for native land. But she does not know at what cost these ends were achieved. She doesn’t want to know. But Avner’s torment is not about ends, but means.

As I watched the movie it struck me just how important the laws of war are to the soldiers who do the killing. Sterile academics dissect jus in bello and parse neat distinctions between enemy and non-enemy combatants. But soldiers actually live these rules of war. And the line between a tormented assassin and a noble and heroic soldier is the rule of law. Extrajudicial killing is portrayed in the movie as a type of moral relativism that begins to destroy the avenging assassin as much as the evildoers they are killing. That is why a soldier so desperately needs to know that his actions — his “judicial” killings — are not simply necessary, but morally justified. By sanctioning his conduct through the rule of law, society cleanses his killing of others and the soldier thereby preserves his humanity.

The movie brought to mind an excerpt from Elie Wiesel’s The Accident. This book is the last of Wiesel’s trilogy (Night, Dawn and the Accident) and one of his most thoroughly depressing. In short, it is about a Holocaust survivor who becomes a terrorist. In the book, Wiesel suggests that in the conduct of war, the terrorist soon forgets the night of terror, but the victims never forget. In their eyes, he who has killed is a killer for life. The terrorist may choose another occupation, hide under another identity, but for the victims he is an executioner, and an executioner he remains even after the backdrop has changed and he is acting in another play upon a different stage.

Spielberg’s morality play that is Munich posits that neither the victims nor the terrorists ever forget. Avner in the end abandons his mission, abandons his country, and seeks refuge in another land. But his soul cannot rest. A line has been transgressed and an assassin like Avner can never go back.

Update on Trial of Turkish Writer

by Chris Borgen

This is a quick follow up on my post and Seth’s post, concerning Orhan Pamuk, the Turkish writer who was shortlisted for the Nobel and also faces criminal charges for insulting the Turkish nation.

Pamuk is a great Turkish writer, however he is also a controversial figure, having criticized Turkey for ignoring Armenian and Kurdish massacres. This controversy is something Turkey (and Europe) would like to downplay as Europe is trying to smooth-out Turkey’s accession to the EU. (The winner of the Nobel, Harold Pinter has made his name most recently for his vocal criticism of U.S. policies–if not of America istself–which I gues is not a politically controversial topic for the Nobel Committee.)

So Pamuk didn’t get the Nobel. And, moreover, his problems in Turkey were only beginning.
Pamuk had said in a magazine interview that “One million Armenians and 30,000 Kurds were killed in these lands and nobody but me dares talk about it.” The government of Turkey claims that this violated Turkey’s Article 301, which, according to the BBC, “makes it illegal to insult the republic, parliament or any organs of state. A guilty verdict can carry a prison sentence of up to three years.” And so he is being tried for insulting “Turkishness” and also the Turkish armed forces.

Today Pamuk finally gets a little good news, such as it is: the prosecutors have decided to drop the “insulting the armed forces” charge, although the trial is going forward concerning his alleged insult to the Turkish state.

The EU, though, gets some bad news. The BBC reports:

The same nationalist lawyers behind Mr Pamuk’s indictment have succeeded in opening an investigation into comments made by a Euro MP, who was part of an EU delegation attending the writer’s hearing.
Joost Lagendijk, who chairs the EU parliament committee on Turkey, is accused of insulting Turkey’s armed forces after allegedly saying troops were provoking clashes with Kurdish separatists.

I’ll close with a couple of choice quotes (as reported by CNN) from Turkish Prime Minister Tayyip Erdogan and Pamuk concerning the wisdom of trying people ofr offending “Turkishness”:

“We should not hurry. This is a new law, let’s see how it works, what the outcomes are,” Erdogan said in reference to the law used to put Pamuk on trial for insulting “Turkishness.” “If there are serious problems, then of course the legislature will sit down, make a new assessment and take a new decision.”

In an interview published on Thursday, Pamuk told daily Aksam newspaper that the government should carry out real — not cosmetic — reforms to expand freedom of expression if it really wants to carry the country into the EU.

“For a country to enter the EU, there has to be full respect of minority rights, freedom of thought and expression,” Pamuk said. “If you drag your feet and make cosmetic changes … then this won’t do. To believe that, you would need to be a child.”

Nice to see that this law doesn’t seem to have much effect in quieting down Pamuk.

Government Shuts Down Volokh Conspiracy

by Roger Alford

There is a great post by Lyle Denniston at SCOTUSblog on the Solicitor General’s filing in Padilla yesterday. But what really caught my attention came from the comments. There was wild speculation that the U.S. government was so concerned about the heated discussion at Volokh on Hamdi, Padilla, and domestic surveillance that perhaps the government “has taken down Volokh. Anyone know anything?” When others expressed skepticism, the response was “I would reserve judgment on whether the Volokh issue is conjecture — maybe the WH [White House] can explain.”

Not to worry. The Government has reconsidered its actions and the White House has decided to let Volokh Conspiracy continue. It is back up and running today.

"You’ve Been Indicted!"

by Roger Alford

Interesting story from South Korea about prosecutors using text messaging to inform citizens that they have been indicted. In a country where 75 percent of the population carries mobile phones, the government concluded that it was more efficient to provide legal notices to citizens electronically instead of by mail. So if your battery dies or your phone is stolen and you never receive the indictment, can you claim inadequate service of process?

Of course, the “service” is not limited to legal notices of criminal prosecution. The government will also text message you if you owe a fine or penalty.

Social Audits as a Defense Against ATS Litigation

by Roger Alford

Owen Pell at White & Case has a chapter in our book Holocaust Restitution entitled, “Historical Reparation Claims: A Defense Perspective.” The chapter in essence argues that a company that wishes to defend against historical reparation claims must have detailed knowledge about its company history. He writes, “A crucial lesson of the Holocaust asset cases is that companies must invest heavily in historical research so that they will have control and an intimate understanding of the facts.” (p. 331-32).

Pell’s advice is sound for historical reparation claims. But if that is the approach corporations should take to address claims of historical misdeeds, what should corporations do to prevent claims of human rights or environmental abuses today? In short, with globalization and outsourcing, how can a multinational corporation avoid the risk of corporate ATS litigation? If I were advising corporate counsel, one of the most important steps I would recommend is to invest heavily in research on what actually is occurring on the ground in the manufacture of their products.

One of the most innovative approaches to such research is the use of independent “social audits.” The idea of social audits is that a multinational can be a better corporate citizen and avoid international human rights litigation if it takes preventive action through independent social auditors.

A U.S.-based NGO by the name of Verité is at the forefront of this new approach to curtailing human rights abuses abroad. This NGO works with corporations to research what is occurring in their factories abroad. Verité has conducted social audits in 60 countries for clients such as Wal-Mart, Timberland, Tommy Hilfiger, Nike, Gap, Reebok, Adidas, and Disney. Verité has performed over 1,300 social audits to assess factory compliance with local and international labor, health, safety and environmental regulations, company codes and industry best practices. It provides factory management with specific recommendations to remedy problems, as well as capacity-building training for factory management, manufacturer representatives, and workers. Verité’s factory audits cover the full range of labor standards outlined by the International Labor Organization and national law.

In recognition of its efforts, Verité recently was honored by Fast Company magazine as one of 25 groups that are changing the world. The company was founded by Heather White, who taught at MIT’s Sloan School of Management. The genesis of the idea came from a class she led on Asian economic growth, where a guest speaker shared stories of conditions in Asian factories: forced pregnancy tests for women, beatings, child labor, and harassment. But the students were unmoved. “Their attitude was, ‘This happens in every country. Any jobs are better than no jobs.’ ” White said she was “was disturbed that we were producing business leaders who didn’t feel corporations had responsibility for labor practices in their factories.” So she founded Verité in the hope that with constructive prodding, companies could wield their influence to change workers’ lives.

Social audits are good for corporations, not only in helping them to become better citizens, but also to avoid the risks associated with ATS litigation based on their global supply chain practices.

Unwarranted Surveillance and Standing

by Seth Weinberger

Over at the Exploring International Law blog, run by Anthony Arend (a former professor of mine at Georgetown), is an excellent post on the question of how any suits regarding warrantless NSA surveillance might reach the courts. I’m sure my colleagues here at Opinio Juris are much more qualified and capable of addressing this question than am I, but from a political perspective, it seems that this is a important issue. While Julian and I may disagree as to the legality of the spying, I do tend to agree with Tony that it’s very unlikely that this will be decided in the courts soon (although the New York Times reports that several men accused of ties to al Qaeda will challenge the legality of the surveillance) . Rather, it will take a political confrontation between Congress and the administration to settle whether or not the president does indeed have sufficient authority to conduct such a surveillance campaign without the explicit authorization from Congress.

I am no conspiracy theorist. I do not think that Bush and Cheney cooked up this scheme to seize power and spy on average everyday Americans or to subvert this country into their own private fiefdom. However, I do believe in the limitation of the power of government. And in this “war” in particular, specifically one that has no metrics for victory and no imaginable end, it seems that we need to be especially careful when we give the president unusual powers to conduct secret operations on American soil. It is hard to envision feckless congressmen mustering the political courage to challenge the president on this in the face of charges like “unpatriotic” and “soft on terror.” This is why, in my mind, it is so important to keep the domestic use of executive power on a tight legislative leash.

More Predictions of Israeli Airstrike on Iran

by Roger Alford

I have written on the madness of Mahmoud Ahmadinejah and the threat Iran poses to Israel. See here, here, and here. Other bloggers are now joining the fray.

David Bernstein at Volokh Conspiracy has just returned from Israel and has this prediction: “I predict that Israel will strike Iran within the next few months, with the goal of disrupting or terminating Iran’s nuclear program.” He notes that “[g]iven that the anti-Iranian consensus is so solid even on the Left, I would be very surprised if the Israeli government fails to follow through on its promise to prevent Iran from acquiring atomic weapons–assuming, of course, that Iran isn’t stopped by other international forces.”

I will follow David Bernstein’s prediction with two of my own: As long as Iran continues its current course and does not take outright belligerent action against Israel: (1) The United Nations Security Council will not authorize the use of force against Iran; and (2) the United States will not unilaterally attack Iran.

I would be curious what our readers think. Scroll down and vote.

Which of the following do you think is most likely to occur in 2006:
Israel will preemptively strike Iran to thwart its nuclear capability
Iran will take offensive action against Israel before any such preemptive strike by Israel
The U.N. Security Council will authorize the use of “all necessary means” to prevent Iran from attacking Israel
The United States will preemptively strike Iran to thwart it’s nuclear capability
None of the above will occur in 2006

Free polls from

Pinochet Fit to Stand Trial

by Roger Alford

The chances that Augusto Pinochet, age 90, may one day face prosecution increased dramatically this week after the Supreme Court of Chile ruled that he was fit to stand trial. Here is a link from the BBC, which has the best English coverage of the news. Photos and video clips from Chile showing Pinochet and the Supreme Court are available here.

Judge Alito and Immigration

by Roger Alford

Last week, Yale Law School professors and students who oppose the nomination of Samuel Alito have published a paper called the “Alito Project.” (Link) It analyzes Judge Alito’s judicial decisions, but does not purport to do so objectively. Indeed, many of the participants in the project were quoted in the New York Times last month as openly opposing Judge Alito.
As I have posted on Judge Alito’s immigration opinions in the past, see here and here, I was curious to see how the Alito Project would portray his immigration decisions. Unfortunately, I found myself disappointed with the manner in which Owen Fiss, Bruce Ackerman and other members of Yale community represent Alito’s immigration decisions.
The paper begins the immigration discussion with a patently false attempt to contrast Alito with other federal judges. It begins with the statement that “Judge Alito’s immigration opinions suggest a belief in a smoothly functioning system that merits judicial deference. This vision of the immigration system stands in stark contrast to that of other federal judges.” It then references an opinion by Judge Posner that the Seventh Circuit has reversed a “staggering 40 percent” of BIA cases in the past year. The purpose of this lead paragraph is quite obviously to suggest that Judge Alito is miserly in reversing immigration decisions as compared to other appellate judges.
So what are the actual numbers? A comparison with other federal appellate judges reveals that Judge Alito is 44 percent more likely to reverse the BIA than the typical federal appellate judge. Judge Alito has affirmed the BIA in seven of eight deportation decisions, and affirmed the BIA in seven of nine asylum cases. That’s a reversal rate of 3 out of 17 cases, or 18 percent. That may sound harsh to the folks who wrote the Alito Project. But it is not. According to an article in the New York Times today, the government wins more than 90 percent of immigration cases in federal appeals courts. So while the average federal appeals judge will reverse no more than 10 out of 100 immigration cases, Judge Alito would on average reverse 18 out of 100 immigration cases, or 44 percent more cases than the typical appellate judge.
The immigration section of the Alito Project concludes with a back-handed compliment to Judge Alito. It states with negative overtones that “Judge Alito has voted to deny an asylum request or to uphold an order of deportation in nearly all of the immigration cases about which he has written. He has followed the law when it was clear but has deferred to the government position in virtually all cases where it was not.” That is precisely what black-letter administrative law requirements of judicial deference require: No deference where Congress has clearly spoken and the agency departs from that mandate, but deference where the agency has rendered a decision that is a permissible interpretation of the statutory obligation.

The Child Who Cheated Fate

by Roger Alford

On this day of celebration for Jews and Christians, I thought I would spare you the daily grind of international news and commentary and give you a more human story. This is a true and inspiring story retold with permission from the person who lived it. I hope it will make you feel blessed that we live in a time of peace, prosperity, and security. Blessed that one man cheated fate and grew up to be good and great. Blessed that today our children need not cheat fate to grow up and have a chance to be good and great.
One year ago this November, my family and I had the privilege to have lunch in The Peace Palace with Judge Thomas Buergenthal, the American judge on the International Court of Justice. I had had the honor to work closely with Judge Buergenthal at the Claims Resolution Tribunal in Zurich, Switzerland a few years back. He was quite fond of my children then, and now welcomed the chance to become reacquainted with them.

As we arrived at the Peace Palace, Judge Buergenthal and his wife Peggy graciously greeted us in his chambers and escorted us to the judge’s dining quarters at the Peace Palace. It is an intimate and warm restaurant reserved for the judges and their guests. My wife and I warned our children, then 8 and 10, about just how important this man was and how much we respected him. I desperately wanted them to be on their best behavior. Thankfully, they were.

After a delightful lunch on white-linen cloth, I gathered up the courage to ask Judge Buergenthal if he might be willing to tell my children what he was doing when he was their age. My children had just finished visiting the Anne Frank house in Amsterdam and they knew full well that Hitler was intent on finding and killing Jews during World War II. But they had never heard a real story of the Holocaust from the perspective of an actual child survivor.

I knew Judge Buergenthal was fairly open about discussing his experience at Auschwitz, see here, but I did not want to presume that this was the appropriate occasion for such a discussion. Happily, the judge was more than willing to oblige. As my children’s eyes widened with astonishment, he said, “When I was your age I was a soldier in the Polish army.” He then told a long story about what life was like as a child survivor of Auschwitz sixty years ago.

He said you had to be clever, street-smart, to have any hope to survive each day of the Holocaust. Every morning at roll call he knew the routine. The Germans would pick off the weakest of the group for the gas chamber. Young Tom knew that he had to be invisible to avoid that fate. So he would hide in the back rows during roll call, answer when called upon, and then quickly sneak back to the barracks to hide in the shadows. It was a constant, daily game of cat and mouse for the young boy of Auschwitz.

In early 1945 young Tom was forced to participate in the Auschwitz death marches. To avoid getting shot as a straggler, he and two other boys would run to the front of the line, rest a few minutes while the rest of the group passed him by, and then repeat the routine over and over. As a result of the death march, young Tom became seriously ill. He was sent to the health ward at Sachsenhausen for treatment for frost bite. He knew that this injury meant his death, for the next stop would be the gas chamber. But as he lay there recovering in the ward, he suddenly noticed a strange silence. The Germans had all fled. No guards, no staff, no watchmen. As he sat in that ward, awaiting his imminent death, it was then that he realized that the Allied forces had liberated the camp. The Russians had arrived. Tom Buergenthal was one of three child survivors of the Auschwitz death marches.

Judge Buergenthal then told my children his remarkable experience after his liberation from Auschwitz. He said that when the Russians learned he spoke Polish, they sent him over to the nearby Polish army. The Polish army adopted this young ten-year-old as their mascot. They gave him a small horse, put a Polish uniform on him, and gave him a musket. This ten-year-old mascot of the Polish army was there rooting the Russians and Poles in the 1945 Battle for Berlin.

As Judge Buergenthal finished speaking, my children’s eyes were wide and receptive. They said scarcely a word. They could hardly believe this story of this old man who now sat on the International Court of Justice who was once a ten-year-old child survivor of Auschwitz and a young soldier in the Second World War.

As we left the lunch and were waiting in the lobby at the Peace Palace my oldest son asked for his diary from his backpack. He began retelling the story to himself in his halting cursive. The diary entry began, “Today I met a great man…”

Presidential Wiretapping – Not Such an Easy Legal Question

by Julian Ku

My travelling during the past two weeks has prevented me from blogging. Luckily, our intrepid guest bloggers Duncan and Seth have filled in wonderfully, along with our Opinio Juris regulars.

Although I have enjoyed reading posts from both Duncan and Seth (and I hate to start a fight on Christmas Eve), I have to disagree with some of Seth’s analysis of the presidential wiretapping flap. In blogosphere time, I realize I am very, very late to the fray, but better late than never. To sum up my views briefly (because this is a long post): I think the legality of the presidential wiretapping program is a much harder question than Seth and other critics have suggested. It is almost certainly constitutional. The only question is whether it violates a federal statute.

(1) The President has inherent constitutional power to conduct “foreign signals intelligence” or foreign wiretapping.
Although there is no specific text in the Constitution authorizing presidential spying, and (as far as I know) there is no specific congressional statute, there is little doubt that the President’s broad foreign affairs powers permit him to engage in purely foreign intelligence gathering. In other words, even without congressional authorization, the President has the constitutional authority to authorize agencies like the CIA or the National Security Agency to monitor foreign telephone calls and other electronic communications.

(2) The Fourth Amendment almost certainly does not constrain Presidential wiretapping abroad and even wiretapping of cross-border wiretapping
The Fourth Amendment is the main constitutional protection against unreasonable governmental searches and seizures. The Fourth Amendment has not been applied strictly to border searches, even of U.S. citizens, so it seems unlikely that it would apply to cross-border wiretapping, even if one party is a U.S. citizen. The Supreme Court has also held that the Fourth Amendment does not apply completely to U.S. actions overseas, even if the evidence seized in violation of the Fourth Amendment is used in U.S. court.

(3) The Foreign Surveillance Intelligence Act is the only legal limitation on the President’s cross-border wiretapping program
There is only one serious criticism of the legality of the wiretapping program: that it violates the Foreign Surveillance Intelligence Act, a federal statute. Those critics have a very strong argument, as Seth and others have explained. The FSIA is a fairly comprehensive act and the Administration has already admitted that its program does not comply with the FSIA. The Administration’s defense is based on two arguments: (1) Congress has authorized the wiretapping program in its authorization of the use of military force; (2) The President has a fundamental Commander in Chief power to engage in cross-border signals intelligence.

Unlike Seth and other critics, I think these arguments are both relatively persuasive, although I admit that this is a close question and a court could easily find the President in the wrong here. But they could also go the other way. Here’s why:

(4) The Authorization for the Use of Military Force (AUMF) has been interpreted broadly by the Supreme Court and it is also phrased very broadly.

The Supreme Court’s decision in Hamdi v. Rumsfeld upheld the indefinite detention of a U.S. citizen on the basis of the September 11 AUMF. It relied on the AUMF’s broad language authorizing the President to take necessary and appropriate force against those responsible for the September 11 attacks, Al Qaeda, and their allies. This force included detention without probable cause or any rights other than a limited due process right to challenge their designation. The theory was that the AUMF authorized the President to exercise all fundamental powers incident to warfare in carrying out the resolution, and this included detention as an enemy combatant.

In my mind, it is hardly implausible that a President authorized to detain enemy combatants is also authorized to engage in cross border signals intelligence, which implicates far less serious individual liberty interests than detaining someone as an enemy combatant. Moreover, this power is far more likely to fall within the core of the President’s power as Commander in Chief.

Some have pointed to to 50 U.S.C. s 1811 , which limits Presidential surveillance of “foreign intelligence information” to a mere 15 days after a declaration of war. If the statute gives the President 15 days after a declaration of war, one might argue, than how could the AUMF give broader authorization??

(5) The AUMF might actually give broader powers to the President than a Declaration of War

As a structural matter, the AUMF is indistinguishable from a war declaration, with both requiring the assent of both houses of Congress. Moreover, as a textual matter, the AUMF does give the President more explicit authority (e.g. “necessary and proper”) than a typical declaration of war. So it does strike me that there is a plausible argument that the AUMF granted the President more authority than a typical declaration of war would have. In other words, the President gets what Justice O’Connor called the “fundamental incidents” of war but also gets the broad authority to combat those allied with the Sept 11 attacks.

o o o

Is there any limit to what I think the current AUMF authorizes? I think if the facts reveal the program was not really seeking to wiretap suspected terrorists linked to Sept. 11 or AlQaeda, then the program is more likely in violation of the statute. If, for instance, the President was wiretapping his political enemies, than that is a plain violation and probably an impeachable offense. But there is nothing like that even alleged so far.

The functional problem, though, is how to interpret and cabin the AUMF to keep it from being a blank check to the President. I agree this is a problem, although not an insurmountable one. Congress can obviously amend the AUMF or even withdraw it. It can amend the FISA to plainly prohibit the President’s activities here. I just don’t think Congress has spoken plainly here (whatever Tom Daschle says, btw, because after the fact statements by legislators are almost always irrelevant to interpreting a statute). The AUMF, as it is currently drafted and as it is currently interpreted, can and probably does provide legal authority for the president’s wiretapping program.

Separation of Powers and the War on Terror

by Duncan Hollis

An Italian Judge today issued a European Arrest Warrant for 22 individuals alleged to have been involved in a CIA abduction of a Muslim cleric in Italy in 2002. Osama Mustafa Hassan was purportedly seized by CIA agents on February 17, 2003 in Milan, without permission from Italian authorities, and sent to Egypt for questioning. Mr. Hassan later alleged being tortured through electrical shock treatments in the interrogations. An earlier Italian arrest warrant had already been issued against the 22 suspects, so today’s action is significant largely because it extends from Italy to all 25 European Union Member States the geographic scope within which these individuals could be detained.

Yesterday, the Fourth Circuit Court of Appeals rejected the Department of Justice’s request to transfer “enemy combatant” Jose Padilla from military to civilian custody to face criminal charges for participating in a terrorist organization. The Court expressed concern that DOJ ‘s criminal case no longer referenced the allegations that Mr. Padilla had taken up arms against the United States in Afghanistan and had been plotting to blow up buildings in the United States with a “dirty bomb” – allegations on which the Fourth Circuit had relied in upholding Mr. Padilla’s detention as an enemy combatant. The court suggested that the government’s actions left “the impression that Padilla may have been held for these years, even if justifiably, by mistake.” The court’s opinion also questioned whether the transfer was motivated by an effort to ensure the Fourth Circuit’s earlier decisions concerning Padilla would not be reviewed by the U.S. Supreme Court.

What do these two cases have in common? They both reflect the increased willingness of courts to check executive power, whether here in the United States or abroad. The Italian judge in the Hassan case is operating without support from Italy’s Executive Branch; the Italian Justice Minister called the judge a “leftist militant” and Prime Minister Berlusconi, a close U.S. ally, said he saw no basis for the abduction case. Similarly, the Fourth Circuit, which until now had been noted for its deference to U.S. Executive interests, has become a significant roadblock to the Executive Branch’s prosecution of Mr. Padilla. Although only anecdotal evidence, both cases suggest that the deference accorded Executive officials to combat terrorism, which was nearly absolute in the immediate aftermath of 9/11, is now seriously on the wane.

Nor is the judiciary the only governmental actor stepping in to check Executive authority. In recent weeks here in the United States we’ve witnessed the McCain Amendment, Congressional resistance to renewing the Patriot Act (with Congress giving it only a one month extension as of yesterday), and Congressional inquiries into Presidential authorization of domestic wiretapping outside of the Foreign Intelligence Surveillance Act (FISA). Similarly, in Europe, the European Parliament has announced its own investigation into allegations that the United States operated secret prisons in EU Member States for high-value terrorism suspects.

Of course, the Executive continues to have considerable authority both here and abroad when it comes to issues involving foreign affairs. In the Hassan case, for example, the Italian Government appears unwilling to request the extradition of the 22 suspects, notwithstanding the judge’s arrest warrants. And in the Padilla case, the Executive Branch hinted that it might go ahead and transfer Padilla to Miami, irrespective of the Fourth Circuit’s opinion, on the ground that it did not need judicial approval for the transfer after all.

Whether the Executive will ultimately prevail in these cases is open to question, but clearly we are leaving the initial post 9/11 period behind, and with it the notion of near absolute judicial and legislative deference to executive power. Future efforts to combat terrorism will require governments to consider the views and positions of all their branches. This may make it harder for the Executive Branch to act in future cases, and we can debate whether that will benefit terrorists. But to the extent future Executive actions are taken with the support or outright approval of their judicial or legislative branches, those actions are likely to have greater support and legitimacy that we have witnessed of late.

Domestic Spying and Executive Power Redux

by Seth Weinberger

In an earlier post, I wrote that the language of the 2001 resolution authorizing President Bush to use force against al Qaeda and international terrorism did not specifically cede power over the domestic arena. Thus, the use of the NSA to monitor the conversations of US citizens in this country without going through the FISA courts was likely both illegal and unconstitutional and could certainly not be justified under Senate Joint Resolution 23.

It turns out that the Bush Administration must have been aware of this problem, as it asked Congress to specifically grant power to prosecute the war on terror domestically. In an op-ed in today’s Washington Post, former Senator Tom Daschle (who was Senate Majority leader during 9/11 and the passage of SJR 23) writes that “minutes before the Senate cast its vote, the administration sought to add the words ‘in the United States and’ after ‘appropriate force’ in the agreed-upon text.” If Daschle’s accout is accurate, this is a clear indication that the Bush Administration believed that the resolution as drafted was too narrow for its purposes and would not permit domestic activity, such as intelligence operations against US citizens.

In a concurring opinion to Youngstown Sheet & Tube Co. v. Sawyer, Justice Robert Jackson wrote that the ability of the president to expand his powers depended on the relationship between the desired action and Congress. When Congress has authorized the president to act, the president stands on the most firm legal and constitutional ground. If Congress has been silent, the president has a good case for action, and the question becomes more of a political one. But when Congress has expressly denied the president a particular power, any action to assume that power is highly suspect. Given that the Bush Administration asked for the ability to prosecute the war on terror domestically and was rebuffed, it seems that the question of use of the National Security Agency to spy on US citizens domestically falls into the third category. I am now even more convinced that, as I concluded in the first post on this matter, that this action by President Bush was both illegal and unconstitutional.

Opinio Juris: Over 100,000 Served

by Chris Borgen

This morning we had our 100,000th visit to Opinio Juris. Peggy, Roger, Julian and I want to thank everyone for reading and returning to our site and especially for taking part in the discussions. We can’t believe that in less than a year there would be 100,000 visits to a site that focuses on our discussions on international law and politics.

In the last year we’ve added a new blogger (Roger), had guests join us (Duncan and Seth, currently), started an interview series, and, in general, tried to bring up some interesting points about foreign policy and international law every day of the year. We try to present ideologically diverse views and engage in a real discussion on timely (and not-so-timely) topics. We hope you have as much fun here as we do.

While today marks our 100,000th visit, next month will be our one year anniversary and we have a few significant changes that we plan on rolling out then. I’ll leave that for the anniversary.

And, as always, if you have suggestions as to how we can improve this site, please contact one (or all) of us. And, if you like what we are doing, please tell your friends and colleagues about Opinio Juris.

Thanks, and we will try to make the next 100,000 visits even better.

The Global Perils of Christmas

by Roger Alford

In real news worthy of The Onion, here are a few stories circulating around the globe on the perils of Christmas:

1. In Paisley, Scotland a gang of youth attacked Santa at a shopping mall. The Santa Claus, a.k.a. Malky Watret, used his bag as a shield and a Christmas tree as a sword to fend off the attackers. Santa said of the ordeal, “They were calling me a fraud and a fake. If it had happened on the street I might have acted differently – I’d have given them a few choice words, but you can’t do that dressed as Santa.” (Link).

2. But the tables were turned in New Zealand. Forty drunken Santas described by Auckland police as an organized group of village idiots vandalized, smashed beer bottles, and attacked security staff. (Link). Police have requested tips from the public on any person wearing a red coat, red pants, red hat, black boots, and a large black belt.

3. In Leicestershire, England teachers who receive gifts from students must keep a detailed list of all presents they receive. Anything above a bar of chocolate or bottle of wine must be registered. According to a city councilman, the purpose of the Yuletide log is that “there be no suggestion that by taking the gift, preferential treatment should be received by the giver.” (Link). Teachers’ pets in England reportedly will take drastic measures to increase their chances of receiving high marks. Gifts received have included red “Hello Kitty” knickers, a pillow case, a pasta brooch, and a dead pheasant. (Link).

4. In Burundi, the government is imposing fines of $50 (six months salary) or two-year jail terms if you are caught cutting down a Christmas tree. The environmental ministry reported that the country had lost enough of its forest cover and could not afford any more trees to be cut down. The ministry encouraged residents to use artificial trees. (Link).

5. Christmas came early in the village of Carvin, France. It seems that 50 Euro notes were inadvertently put in the ATM slot meant for 20 Euro notes. The ATM malfunction caused a rush on the ATM machine until the police sealed off the area. The bad news is that all clients were tracked by the computer and the bank is demanding reimbursement. (Link).

6. In Coventry, England buying the wrong gift will result in a fine for anti-social behavior. If you purchase a mini-motorcycle you face arrest and a penalty of 5,000 pounds and an ASB citation. (Link).

7. In Rhode Island the official state Christmas tree fell victim to the state’s strict new fire code. “With the new fire code, we’re supposed to spray it, and apparently the spray killed it,” said Governor Donald Carcieri. Under state law, Christmas trees are “flammable vegetation” that must be treated with fire retardant, even if it kills them. (Link).

8. In Warwickshire, England thieves stole 40 Christmas turkeys from a truck outside the Belfry Hotel. The authorities encouraged anyone offered cheap meat to call the Warwickshire police immediately. (Link). Meanwhile in Lincolnshire, thieves stole an eight-foot inflatable Santa, several snowmen from a garden and even the bulbs from the town Christmas tree. (Link). Police have warned residents in the neighboring town of Whoville to keep on the look out for any suspicious-looking characters.

9. In Gwynnedd, Wales, Santa has apologized for a pub stop after a Christmas parade. Witnesses reported that Santa’s float stopped outside the pub, whereupon Santa jumped off, entered the pub, and took off his beard in full view of children. One child who witnessed Santa with a pint said his belief in the real Santa was unwavering. “I saw his ears, and they were pointy, so I knew he wasn’t a proper Santa. I guess he was one of the elves helping out.” (Link).

10. And finally, in Bethlehem strikers stormed city hall and the rooftop overlooking Manger Square in a labor dispute with the Palestinian Authority. The strikers expressed frustration with lack of pay. (Link). No word if the grievance also concerned the centuries-old difficulty with housing shortages in and around the little town of Bethlehem.

UN Reform and the Future of International Law

by Seth Weinberger

In yesterday’s New York Times, we find an article in which UN Secretary-General Kofi Annan bemoans the difficult year the UN has had in 2005. In particular, Annan gripes about the difficulties in creating a new Human Rights Council that will not have to seat notorious human rights violators like Sudan, the grueling ordeal of the oil-for-food scandal, and the problems the UN is having in passing its budget. Relatedly, in today’s Times, we read that while talks between the EU-3 and Iran about Iran’s nuclear program are resuming, there is little hope for significant progress. The main obstacles here are the resistance of Russia and China to referring the matter to the UN Security Council and, of course, Iran’s insistence on its right to develop an indigenous nuclear program that includes enrichment technology.

The common thread, and the largest problem in the development of meaningful and effective international law, is the problem of sovereignty. The UN was created in the aftermath of World War II with two main purposes: the prevention of large-scale inter-state conflict and the protection and promotion of state sovereignty (especially in the wake of the demise of the European colonial powers). Now, however, the purpose of the UN is changing. Inter-state war is no longer perceived as the primary threat to international security, in a large part due to the overwhelming dominance of American military and political hegemony. “Human security” issues like human rights and the prevention of genocide have risen on the security hierarchy, and the “hard” security issues that do exist, like terrorism or proliferation, have a much larger intra-state dimension to them. The problem is that the UN is not well suited to dealing with internal issues. If Russia and China refuse to allow the IAEA to refer Iran to the Security Council, the UN will be unable to act. If enough developing countries resist making membership on UN committees like the Human Rights Council contingent on meeting certain standards (and it’s also likely that Russia and China would object as well), the UN will be unable to act.

What can be done to make international law more credible, enforceable, and relevant? In the short- to near-future, it’s almost impossible to imagine any serious reform transforming the UN into a body capable of handling these kind of issues. While some people may dream of a truly international body that can enforce international law, perhaps it may be time to give that dream up. International law is at its best when it works through inducements (like the WTO) rather than coercion (like UN sanctions). Yes, the WTO has a punishment mechanism, but it really works by promoting cooperation in order to obtain long-term benefits of free trade and open markets. The UN has little to offer countries in order to get compliance on thorny and truly important issues, like nuclear proliferation or genocide. Inducements work best between like-minded countries that see common ground in their national interests. So, perhaps the international system should become bifurcated. The UN can continue to deal with the global issues at which it actually does reasonably well, such as the WHO or UNICEF, and could remain as a global forum to provide peacekeeping and prevent interstate war. Those countries interested in expanding the scope and power of international law could set up their own organization, like the EU, WTO, or NATO, in which sovereignty is curtailed to a greater degree and members gain serious benefits as a payment for cooperation. Of course, this is exceedingly unlikely, but I just don’t ever see the UN, hobbled by sovereignty and vetoes, as being effective.

Eritrea Ethiopia Claims Commission Finds Eritrean Liability for Start of Conflict

by Chris Borgen

The Eritrea Ethiopia Claims Commission has issued its final set of awards, including the award concerning liability for starting the 1998-2000 border war between these countries. See press reports from the BBC and CNN.

Eritrea had successfully split off from Ethiopia in the 1990’s after a protracted insurgency. However, tensions still existed and, in particular, there were issues concerning the delimitation of the boundaries of the two states.

The 1998-2000 border war claimed 70,000-80,000 lives. In its wake, and as part of the peace settlement, the Eritrea-Ethiopia Boundary Commission was formed to set the proper boundary between the two states and the Claims Commission was established to resolve the various damage claims arising out of the conflict. The Claims Commission is under the auspices of the Permanent Court of Arbitration (see also the PICT summary), which provides states with rosters of potential arbitrators.

Of the various awards made public on December 19th, the judgment on the jus ad bellum claims–the claims related to the outbreak of the conflict–are especially noteworthy.

According to the award,

Ethiopia contended that Eritrea planned and carried out [a series of attacks beginning in May 1998] against Ethiopia in violation of its obligations under international law, including notably the requirement of Article 2, paragraph 4 of the Charter of the United Nations that all members refrain from the threat or use of force against the territorial integrity or political independence of any State.

Eritrea had four main responses:

(a) the fighting had started on territory that was unlawfully occupied by Ethiopia;
(b) that an Ethipioan armed militia started the fighting with a series of incursions into Eritrea;
(c) Ethiopia declared war on Eritrea (not vice versa); and
(d) Eritrea’s actions were in self-defense.

The Commission denies the legal validity of the first claim—that force can be used to satisfy border diputes. Particulalry since such disputes are so common, weakening this principle “would create a large and dangerous hole in a fundamental rule of international law.”

The analysis of the second response—that Ertirean actions were in response to Ethipian armed militias—provides an interesting analysis of the right of self-defense in the UN Charter. The Commission writes:

As the text of Article 51 of the Charter makes clear, the predicate for a valid claim of self-defense under the Charter is that the party resorting to force has been subjected to an armed attack. Localized border encounters between small infantry units, even those involving loss of life, do not consoitute an armed attack for the purposes of the Charter.

This question of how large a military engagement must be before it is an “armed attack” sets a threshold requirement of Article 51. It may be an extension of the idea that any act of self-defense should be proportional to the attack and that some skirmishes are of such a minimal security threat as to not require any response beyond the fighting of the skirmish itself. I am curious to see if this is a point on which other commentators will focus. (The Commission also noted that Eritrea never invoked Article 51 or notified the Security Council of its acts as self-defense until the Commission hearing.)

The Commission then walked through the facts leading up to the Eritrean incursion into Ethiopia and reiterated that any of Eritrea’s arguments based on the doctrine of self-defense failed for lack of an initial armed attack by Ethiopia.

Concerning the alleged Ethiopian declaration of war, the Commission notes a resolution by the Ethiopian Council of Ministers and Parliament that condemned the armed incursions and demanding an immediate and unconditional withdrawal of Eritrean forces. However, the Commission explains,

This resolution was not, as Eritrea had asserted, a declaration of war. In international law, the essence of a declaration of war is an explicit affirmation of the existence of a state of war between the belligerents.

While Ethiopia demanded the removal or forces and claimed a right of self defense, the parties also kept up diplomatic and economic relations, after the resolution which would not have been expected if this resolution was an actual declaration of war.

Based on these arguments, the Commission found Eritrea liable for the armed attack on and immediately following May 12, 1998. The Commsission did not find adequate evidence to support th claim that the attack was premeditated.

The proceedings will now move to a damages phase to set the amount of compensation to be paid by Eritrea.

This award comes at a time of great danger in Ethiopian-Eritrean relations. The International Crisis Group writes:

The fragile peace maintained by Ethiopia and Eritrea since they signed a comprehensive agreement at Algiers in December 2000 is fraying dangerously. With a costly two-year war now followed by nearly five years of stalemate, patience on both sides of the border has worn thin, and there are worrying signs that the countdown to renewed conflict may have begun. Neither side appears eager for war, but to dismiss the tensions as mere sabre-rattling could mean missing the last chance to preserve peace in the Horn of Africa. The two parties need help urgently from the Algiers Group – the African Union (AU), European Union (EU), UN and U.S. – who witnessed the original accords. Its members need to work together urgently to forge a “3-Ds” parallel process of de-escalation, border demarcation and bilateral dialogue, using both intensive diplomacy and the credible threat (and employment as necessary) of punitive measures….

At the heart of the problem is the ruling of the independent Boundary Commission established to delimit and demarcate the contested border. Both sides agreed in advance that its decision would be final and binding, but the ruling produced a stalemate that has brought them back to the brink of war. The primary bone of contention is the small, dusty border settlement of Badme, where the 1998-2000 war started. Having initially welcomed the boundary decision, Ethiopia reversed itself upon learning (after closer examination of the less than clear documentation) that this town – against the expectations of both sides – had been awarded to Eritrea.

The coming weeks and months will require a delicate interplay of dispute resolution measures, such as the work of the Claims Commission and the Border Commission, and hard diplomacy to prevent the outbreak of further violence in the Horn of Africa.

Darwinian War and Peace

by Roger Alford

A few weeks ago I addressed the question in this survey of whether war is part of the natural order of things and a necessary part of human existence. As of today, the survey respondents were equally divided 50%-50% on the question. Our readers appear decidedly ambivalent about the proposition that war is an inherent part of human existence.

For what it is worth, we now have some help on the question from biologists. An evolutionary analysis of the question of war and peace was just published in an interesting article by Robert Sapolsky in Foreign Affairs this month entitled The Natural History of Peace. The question posed in the article is whether other primates display behaviors of war and peace similar to homo sapiens. The thesis of the article is that humans are not exceptional in their aggressive, war-mongering behavior, but neither are they “killer apes” destined for violent conflict. In short, peace can be a learned behavior in all primates.

Here is an excerpt:

“In the early 1980s, “Forest Troop,” a group of savanna baboons I had been studying … for years, was going about its business in a national park in Kenya when a neighboring baboon group had a stroke of luck: its territory encompassed a tourist lodge that expanded its operations and consequently the amount of food tossed into its garbage dump. Baboons are omnivorous, and “Garbage Dump Troop” was delighted to feast on leftover drumsticks, half-eaten hamburgers, remnants of chocolate cake, and anything else that wound up there. Soon they had shifted to sleeping in the trees immediately above the pit, descending each morning just in time for the day’s dumping of garbage….

The development produced nearly as dramatic a shift in the social behavior of Forest Troop. Each morning, approximately half of its adult males would infiltrate Garbage Dump Troop’s territory, descending on the pit in time for the day’s dumping and battling the resident males for access to the garbage. The Forest Troop males that did this shared two traits: they were particularly combative (which was necessary to get the food away from the other baboons), and they were not very interested in socializing (the raids took place early in the morning, during the hours when the bulk of a savanna baboon’s daily communal grooming occurs).”

The authors then relate how disease decimated all the aggressive baboons in both troops who had been fighting over the new food source. The result was a much more peaceful, low aggression/high affiliation troop. Years passed and new males from outside the troop were added (unlike females, males leave their troop and migrate to other troops at puberty), diminishing the importance of the genetic imbalance toward low aggression males (so-called “selective bottlenecking”). Yet the peaceful culture of the troop persisted.

“At present, I think the most plausible explanation is that this troop’s special culture is not passed on actively but simply emerges, facilitated by the actions of the resident members. Living in a group with half the typical number of males, and with the males being nice guys to boot, Forest Troop’s females become more relaxed and less wary. As a result, they are more willing to take a chance and reach out socially to new arrivals, even if the new guys are typical jerky adolescents at first. The new males, in turn, finding themselves treated so well, eventually relax and adopt the behaviors of the troop’s distinctive social milieu…. [T]he savanna baboon became … a textbook example of life in an aggressive, highly stratified, male-dominated society. Yet within a few years, members of the species demonstrated enough behavioral plasticity to transform a society of theirs into a baboon utopia.”

The suggestion of Sapolsky is that peaceful behaviors can be learned by all primates, including humans.

“The first half of the twentieth century was drenched in the blood spilled by German and Japanese aggression, yet only a few decades later it is hard to think of two countries more pacific. Sweden spent the seventeenth century rampaging through Europe, yet it is now an icon of nurturing tranquility. Humans have invented the small nomadic band and the continental megastate, and have demonstrated a flexibility whereby uprooted descendants of the former can function effectively in the latter. We lack the type of physiology or anatomy that in other mammals determine their mating system, and have come up with societies based on monogamy, polygyny, and polyandry. And we have fashioned some religions in which violent acts are the entrée to paradise and other religions in which the same acts consign one to hell. Is a world of peacefully coexisting human Forest Troops possible? Anyone who says, “No, it is beyond our nature,” knows too little about primates, including ourselves.”

Of course, I’m not knowledgeable enough about biology or primatology to know whether this evolutionary theory has merit. But it is an interesting thesis. Sapolsky suggests we may be natural born killers, but we can be nurtured toward peace.

UN Adopts Whistleblower Protection Rules

by Peggy McGuinness

Secretary General Kofi Annan today announced the adoption of a whistleblower protection policy for the U.N. The policy, which goes into effect next month, is intended to protect U.N. employees who report misconduct and/or who cooperate with investigations:

It is the duty of staff members to report any breach of the organization’s regulations and rules to the officials whose responsibility it is to take appropriate action. An individual who makes such a report in good faith has the right to be protected against retaliation.

This is welcome news for the project of creating genuine accountability at the U.N. and should help promote the kind of cooperation and good citizenship necessary to effective internal audits and investigations. It sets a standard higher than those available to government employees of many — if not most — member states.

The full text of the policy is here.

ICJ Decisions Rejected by Eleventh Circuit

by Roger Alford

The Eleventh Circuit this week rejected reliance on the ICJ Vienna Convention decisions in LaGrand and Avena to reconsider a British national’s conviction for murder. Noting that his claim had been procedurally defaulted, the Eleventh Circuit in Maharaj, available here, concluded that the Supreme Court’s decision in Breard was controlling. “In Breard, the Court unambiguously held that a habeas petitioner’s Vienna Convention claim was procedurally barred in federal court because it was not raised in the state court proceedings…. The Supreme Court has not retreated from its position in Breard, and none of the recent developments cited to us call the holding of Breard into substantial question, let alone overrule Breard.”

Maharaj then relied on the ICJ’s decision in LaGrand and Avena to have his Vienna Convention claims reconsidered. “Petitioner directs us to the cases of Avena and LaGrand, where the I.C.J. held that it was error to dispose of a claim under the Vienna Convention by use of a procedural bar. Petitioner cites no authority, however, for the proposition that precedent from the I.C.J. is binding upon this or any other state or federal court in the United States. Unsurprisingly, we were unable to find any controlling case law permitting us to ignore the rulings of the Supreme Court of the United States in favor of one from an international tribunal.”

Maharaj underscores the importance of the two pending Supreme Court cases in Sanchez-Llamas v. Oregon and Bustillo v. Johnson. Hopefully those Vienna Convention decisions will provide some clarity regarding the relevance of ICJ decisions on federal courts.

Peacebuilding and the Westphalian Legal Order

by Duncan Hollis

Today, both the United Nations General Assembly (UNGA) and the United Nations Security Council (UNSC) passed closely coordinated resolutions (see here and here) approving the establishment of a new “Peacebuilding Commission” (UN buffs will find such a procedural move noteworthy in its own right). As for the Commission, it will serve as the UN’s central repository for advising countries emerging from conflict to ensure they continue on the road to recovery. The Commission will have 31 nation-state members, including members who will represent the UNSC, the UNGA, the top contributors to the UN budget, and the top providers of military and civilian personnel to UN missions.

The Peacebuilding Commission is one of the few tangible results to emerge from the much-hyped UN reform summit this past September (the other one to watch for in the next few days would be a new Human Rights Council). The President of the UNGA went so far as to describe today’s move as truly “historic.”

Although calling it “historic” might be mere hyperbole, I prefer to take the reference at face value. As an historical matter, I see the Commission’s creation by UN member states as demonstrating the continuing vitality of what international lawyers call the “Westphalian Legal Order.” This is the notion that since the Treaties of Osnabrück and Münster ended the Thirty Years War in 1648 (collectively known as the “Peace of Westphalia”), the international legal order has functioned as a means of regulating relations among sovereign states. Certainly other subjects of international law now exist beyond the sovereign state, namely international organizations and, to a more limited extent, individuals. Moreover, terrorism provides a near daily reminder that threats to international peace and security can come from non-state actors as much as nation states themselves. But it is also true that international organizations obtain their legal personality through the action of sovereign states, just as individual rights and responsibilities under international law originate in state practice. Similarly, although terrorism may reflect the threat posed by some non-state actors, the tools used to fight it are (so far) largely state-centric through either national or inter-governmental action.

I see the Peacebuilding Commission, therefore, not as some “new” idea, but as a continuation of a much older one. Indeed, the central purpose of the Peace of Westphalia was to guarantee the peace through collective state action. And each of the subsequent (failed) efforts at collective action (e.g., the Congress of Vienna, the Congress of Berlin, the League of Nations, and, since 1949, the United Nations) had the same goal. With all the controversy over the UN’s continuing vitality and the need for reform, it’s fair to say the Peacebuilding Commission reflects one more effort in pursuit of that goal. Thus, as much as we talk about new actors and new threats in international law, it’s worth remembering how sovereign states are still the ones who address these developments and that the older problems of conflict and its aftermath remain. Whether the new Commission will work or not remains open to question (the odds are certainly stacked against it). But it got me thinking – aren’t we still in the same Westphalian Legal Order where sovereign states make the law and create the institutions (if any) to implement it?

The Death of Class Actions

by Roger Alford

Miriam Gilles has an interesting article in the Michigan Law Review (earlier version available here) warning of the impending death of class action litigation. Here is an excerpt:

[T]he vast majority of the remaining class actions are based on some sort of contractual relationship. Virtually all consumer class actions, for example, arise out of some form of contract (adhesive or otherwise), just as employment discrimination class actions arise out of employment contracts. Federal antitrust class actions necessarily grow out of contracts (indeed, standing rules require as much), and the same is true for class actions relating to insurance benefits, ERISA plans, mutual funds, franchise agreements, and an endless variety of other matters.

All of these contract-based class actions are, I believe, on their way to Mauritius. Corporate caretakers have concocted an antigen, in the form of the class action waiver provision, that travels through contractual relationships and dooms the class action device. Where class actions are based on some sort of contractual relationship, this toxin is quite lethal. Developed in the late 1990s by marketers for one of the arbitral bodies, among others, the waiver works in tandem with standard arbitration provisions to ensure that any claim against the corporate defendant may be asserted only in a one-on-one, nonaggregated arbitral proceeding. More virulent strains of the clause force the would-be plaintiff to waive even her right to be represented as a passive, or absent, class member in the event some other injured person manages to commence a class proceeding.

I am not nearly as critical of arbitration as Gilles, as I have seen first-hand how international and domestic arbitration is a salutory development in the modern era of globalization. But she is focused on one type of relief that is indeed threatened by arbitration. And she is right that we should not miss the momentous importance that arbitration and waiver clauses are having on the future of class action lawsuits.

For example, if you buy a Dell computer online and it goes on the blink because of a design defect, henceforth you will be precluded from aggregating your complaint with other similarly-situated claimants. Just read Article 13 here. You can arbitrate your petty little dispute, but there will be no class action muscle behind it. (Interestingly, Dell has not included such arbitration and class-action waiver clauses in their online contracts in other countries, such as the United Kingdom, France, and Spain, where Dell provides for litigation in the domestic courts of the respective jurisdiction.)

If a contract can include a choice of law clause, a waiver of a judicial forum, and a waiver of collective relief, then Gilles may well be right that collective action waivers will be the antigen that portends the death of contractually-based class action lawsuits. That may be good or bad thing depending on your perspective of the utility of those lawsuits in their modern incarnations.

ICJ Orders Uganda to Pay Damages to the Democratic Republic of Congo for Illegal Incursion

by Peggy McGuinness

The ICJ yesterday handed down a decision in Democratic Republic of Congo v. Uganda, ruling that Uganda violated the principles of non-intervention under Art 2(4) of the UN Charter and further violated international human rights and humanitarian law when it launched military operations in the DRC between 1998 and 2003. The Court explicitly rejected Uganda’s claim of self defense in the case, holding that Uganda should pay reparations, which the government of the DRC estimates will be in the $6-10 billion range. From the ruling:

(p. 57) The Court considers that the obligations arising under the principles of non-use of force and non-intervention were violated by Uganda even if the objectives of Uganda were not to overthrow President Kabila, and were directed to securing towns and airports for reason of its perceived security needs, and in support of the parallel activity of those engaged in civil war.

In the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) case, the Court made it clear that the principle of non-intervention prohibits a State “to intervene, directly or indirectly, with or without armed force,in support of an internal opposition in another State” (I.C.J. Reports 1986, p. 108, para. 206). The Court notes that in the present case it has been presented with probative evidence as to military intervention. The Court further affirms that acts which breach the principle of non-intervention “will also, if they directly or indirectly involve the use of force, constitute a breach of the principle of non-use of force in international relations”(ibid., pp. 109-110, para. 209).

In relation to the first of the DRC’s final submissions, the Court accordingly concludes that Uganda has violated the sovereignty and also the territorial integrity of the DRC. Uganda’s actions equally constituted an interference in the internal affairs of the DRC and in the civil war there raging. The unlawful military intervention by Uganda was of such a magnitude and duration that the Court considers it to be a grave violation of the prohibition on the use of force expressed in Article 2, paragraph 4, of the Charter.

The Court further held that both IHL and human rights obligations were binding on the Ugandan troops then occupying the DRC, and that the Ugandan government was liable under the doctrine of responsibilityiblity for those acts:

(p. 71) In view of the foregoing, the Court finds that the acts committed by the UPDF [Ugandan People’s Defense Force] and officers and soldiers of the UPDF (see paragraphs 206-211 above) are in clear violation of the obligations under the Hague Regulations of 1907, Articles 25, 27 and 28, as well as Articles 43, 46 and 47 with regard to obligations of an occupying Power. These obligations are binding on the Parties as customary international law. Uganda also violated the following provisions of the international humanitarian law and international human rights law instruments, to which both Uganda and the DRC are parties:

. Fourth Geneva Convention, Articles 27 and 32 as well as Article 53 with regard
to obligations of an occupying Power;
. International Covenant on Civil and Political Rights, Articles 6, paragraph 1, and 7;
. First Protocol Additional to the Geneva Conventions of 12 August 1949, Articles 48, 51, 52, 57, 58 and 75, paragraphs 1 and 2;
. African Charter on Human and Peoples’ Rights, Articles 4 and 5;
. Convention on the Rights of the Child, Article 38, paragraphs 2 and 3;
. Optional Protocol to the Convention on the Rights of the Child, Articles 1, 2, 3, paragraph 3, 4, 5 and 6.

The Court thus concludes that Uganda is internationally responsible for violations of international human rights law and international humanitarian law committed by the UPDF and by its members in the territory of the DRC and for failing to comply with its obligations as an occupying Power in Ituri in respect of violations of international human rights law and international humanitarian law in the occupied territory.

The full opinion in English is here.

Sudan Blocks ICC Probe on Darfur

by Peggy McGuinness

The government of Sudan has announced it will not cooperate with the International Criminal Court investigation into atrocities in Darfur. No one should be surprised, since the Sudanese government is itself complicit in the very acts being investigated. In a report released last week, Human Rights Watch lays out in great detail the responsibility of the Sudanese government:

Since July 2003, Sudanese government forces and militia forces, known as “Janjaweed”, have committed crimes against humanity and war crimes on a massive scale during counterinsurgency operations in Darfur, Sudan’s western region bordering Chad. Civilians have suffered direct attack from land and air, summary execution, rape, torture, and the pillaging of their property.

Military services participating in the attacks on the civilian population in Darfur include the air force, army, security and intelligence services, and the paramilitary Popular Defense Forces (PDF) under the command and supervision of the army. These forces have conducted military operations in close cooperation with the Janjaweed militia, which the government recruited through informal networks of ruling party insiders, former military personnel, and leaders of nomadic tribes.

The Sudanese government at the highest levels is responsible for widespread and systematic abuses in Darfur. Based on eyewitness accounts, on-the-ground investigations in Darfur, government documents, and secondary sources, Human Rights Watch believes that President Omar El Bashir and other senior government officials, the regional administrative officials in Darfur, military commanders, and militia leaders should be investigated for crimes against humanity and war crimes, either as a matter of individual criminal responsibility or command responsibility.

The Sudanese government has failed to prosecute serious crimes committed in Darfur. Instead of pursuing accountability for war crimes and crimes against humanity committed by government officials and Janjaweed members, it has made no genuine effort to investigate — much less discipline or prosecute –any of the individuals responsible. Instead, it has created a facade of accountability through sham prosecutions and created ad hoc government committees that produce nothing.

This development raises a couple of interesting questions.

First, what is the standard under the Rome Statute of the ICC for “complimentarity,” the requirement that the ICC only prosecute cases where the state with primary jurisdiction is “unwilling or unable” to do so. Art. 17 Sect. 2 states:

In order to determine unwillingness in a particular case, the Court shall consider, having regard to the principles of due process recognized by international law, whether one or more of the following exist, as applicable:

(a) The proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court referred to in article 5;

(b) There has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice;

(c) The proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice.

Here, the Sudagovernmentement has said: “We have the national law authority… The government is willing and able to try to these cases.” Of course, the Sudanese government has not yet brought any cases, nor does it appear likely to do so since its own actions lie at the heart of the allegations. That should be enough, given the passage of time, not to raise any objections of ICC jurisdiction under Art. 17. If however, Sudan does decide to bring its own case (regardless of whether they seriously intend to prosecute) that action may complicate the job for the ICC prosecutor who will then need to make his own assessment of compliance with Art. 17. It will be interesting to see whether Sudan attempts this kind of end run, or just continues to stone-wall.

The second issues concerns the fact that the current investigation was referred to the ICC prosecutor by Security Council Resolution 1593. Does that change what happens next? It appears the Council has an ongoing role to play here. It can and should demand cooperation by Sudan. Whether it will do so is contingent on China, which has a close relationship with the current Sudanese regime, and which abstained on 1593. But the Council need not wait untill the ICC’s next progress report to demand compliance with the earlier resolution.

As some of you may recall, I supported vigorous military intervention in Darfur many months ago. I objected to the referral to the ICC so long as it was a fig leaf for inaction by the Council or a meaningful commitment of troops by NATO. Now it appears there is no humanitarian crisis to end; the “ethnic cleansing” is all but complete. Talks to end the conflict in the region are progressing slowly. Prosecution, however imperfectinadequateqaute, may be the only form of justice left. Let’s see if the Security Council can have any impact on making it happen.

Remember the War on Drugs?

by Chris Borgen

Well, Evo Morales sure does and, as the man likely to be Bolivia’s next President, he’s going to make sure Washington remembers it as well—for the reasons it least wants to. Morales is the Socialist candidate for Bolivia’s presidency and he promises to reverse the any-coca growing campaign. Bolivia is the world’s third largest producer of coca. And in a move that sure to enamor him with the current Administration, Morales has promised to make foreign oil and gas companies to pay a fairer share to the Bolivian people. Here are a few evocative (pardon the pun) paragraphs from CNN:

Bolivia’s Socialist presidential candidate Evo Morales, who has promised to become Washington’s “nightmare,” held an unexpectedly strong lead over his conservative rival in Sunday’s election, according to two independent exit polls.

The wide margin means Morales, a coca farmer who has said he will end a U.S.-backed anti-drug campaign aimed at eradicating the crop used to make cocaine, will likely be declared president in January.

“If (the U.S.) wants relations, welcome,” Morales said after voting, holding a news conference where piles of coca leaves were spread atop a Bolivian flag. “But no to a relationship of submission.”

Among the countries where he does have good relations are, unsurprisingly, Cuba, Venezuela, and Brazil. Between Venezuela’s oil money, Bolivia’s drug money and Cuba’s…well, whatever it is Cuba still has, this could prove to be a serious head-ache for Washington. In any case it should be a wake up call that there are other pressing foreign policy issues besides Iraq and that while hegemony has its privileges, it also has its costs.

Stay tuned…

Bill and Bono’s Excellent Adventure

by Chris Borgen

Bono and Bill and Melinda Gates have been named Times’ People of the Year for their high-profile and effective philanthropic work. (See also this report.) Of particular note was their combined work on DATA, Debt, Aids, Trade, Africa, an organization they founded to focus on the combination of challenges facing Africa, and also the One Campaign, a U.S. campaign to fight AIDS and extreme poverty.

I’m just happy to post this because I’m a big U2 fan (and I was pulling for Bono to get this year’s Nobel) but I really do have a point to make about international law and foreign policy.

One of the prominent themes in international law in recent years has been the rising importance of non-governmental organizations—NGO’s—in the process of international policymaking. The following quote from DATA’s website echoes what many observers say about the work of NGO’s.

We talk to the experts, so we know what is really working — and what’s not. We pull together, summarize and explain cutting-edge research on what works in Africa — and use our access to deliver those insights to top officials who might otherwise not hear the message of hope. And above all, we work to tell our leaders and politicians that people like YOU want to see action.

This combination of economic power and access can make such organizations very effective or, at least, have entrée where others do not. While I am enthusiastic about celebrating the worthy work of Bono and the Gateses, we also need to think about the power of such organizations, especially if they are involved in pressing policy options that we do not agree with. What role should international NGO’s have in the policymaking—and especially the treatymaking—process? What types of disclosures could the be expected to make?

I have no pat answers. So far I see much good from the work of international NGO’s such as DATA but NGO’s are merely tools and they can be used in different ways, depending on who wields them.

Update on Syria

by Seth Weinberger

In yesterday’s Washington Post, we find an article in which Detlev Mehlis, the chief UN investigator into the murder of Rafik al-Hariri, actually accuses Syria of direct involvement in the assassination, as well as linking Syria to the murder of Gibran Tueni. While we can only sit and wait for the UN to release its evidence, let’s hope that what has been gathered is so damning that Russia, China, and Algeria will have no hope but to support punishment. I’m skeptical…but slightly hopeful that the UN will actually be able to do something in a case so apparently obvious as this one. If not, however, watch out….

International Law Is Part Of Our Law, Or Is It?

by Duncan Hollis

Last Monday, I attended a conference at Vanderbilt Law School, sponsored by the American Society of International Law’s Interest Group on International Law in Domestic Courts. It was a great conference on many levels. For one thing, it afforded me the chance to see several of my Opinio Juris colleagues–Julian, Peggy, Roger and recent alum, Bobby Chesney–in person (for those of you looking for gossipy details, let’s just say what goes on at the conference, stays at the conference). On a more academic note, I had an opportunity to present my own work in progress, Executive Federalism, which I’ll post on later.

For now, I wanted to flag a paper presented by Professor William S. Dodge of the Hastings College of Law, entitled “The Story of The Paquete Habana: Customary International Law as Part of Our Law” which is available here on SSRN. At a time when so many law students (and their professors) are preparing for their international law exams, it is worthwhile to read Professor Dodge’s take on this chestnut of the public international law course. Professor Dodge offers both an historical and theoretical context for Justice Gray’s famous statement that “international law is part of our law.” More interestingly, Dodge rejects reading the Paquete Habana to support the idea that a “controlling executive act” may supersede customary international law. Check it out.

Using State Tort Laws to Combat Terrorism Abroad

by Roger Alford

While on the subject of the extraterritorial application of state laws, a federal district court in Washington D.C. this week rendered an important and puzzling decision applying state tort laws to combat terrorism abroad. The case of Damarrell v. Iran concerns the Iranian government’s involvement in the Beirut embassy bombings of 1983, one of the defining moments in the modern era of terrorism. As the court correctly notes, “the bombing was the first large-scale attack against a U.S. embassy anywhere in the world.”

The claims were brought against Iran and its intrumentalities pursuant to the Flatow Amendment of the FSIA. Recent D.C. Circuit opinions in Cicippio-Puleo and Acree ruled that the Flatow Amendment, while a valid exception to the FSIA for terrorism claims, does not itself create a private right of action. In response, the district court in Dammarrell authorized the claimants in this case to amend their complaint to plead specific causes of action under the common law or statutes of their respective home states.

This week the court in Dammarrell ruled that the claimants were entitled to $126 million against Iran. But it did so on the basis of state tort laws for wrongful death, battery, and the intentional infliction of emotion distress. That’s right, the state tort laws of Georgia, Florida, North Carolina, New York, Texas, Virginia, and the District of Columbia were applied extraterritorially to combat terrorism in Beirut. Notably absent from this decision, or any other Dammarrell decision, is the word “extraterritorial.” There was absolutely no discussion of the presumption against extraterritoriality for this patchwork of state tort laws.

I am a strong advocate of using U.S. courts to fight state-sponsored terrorism against the United States and U.S. citizens. I therefore welcomed the Flatow Amendment. But it seems odd, to say the least, that we are applying state tort laws for battery, wrongful death, and emotional distress to combat terrorism in Beirut. If we can use those laws to combat terrorism, what prevents their use in others contexts for lesser evils? If a soccer hooligan violently assaults an American at a Chelsea football game in London, is that cognizable too? If not, why not under Dammarrell? It would seem that relying on the antilogy of this decision, every American tourist abroad is a walking vehicle for the potential application of their state tort laws against anyone anywhere who commits an intentional tort against them. Now that’s what I call tort reform.

One can hardly fault the claimants, as it appears the court previously instructed them to amend the complaint to include state law causes of action. But if the Flatow Amendment does not create a private right of action, and state tort laws do not evince a legislative intent to be applied extraterritorially, what are claimants to do? The court earlier this year had ruled here and here that the TVPA does not apply to foreign states and there is no federal common law private right of action. And, of course, the ATS cannot be invoked by American citizens.

It seems odd to say, but Americans still have no obvious statutory basis for a private right of action to combat state-sponsored terrorism abroad. State tort laws will (or should) have difficulty overcoming the presumption against extraterritoriality, and all federal causes of action appear wanting. I always hate it when academics blithely suggest amending statutes, but perhaps the only obvious (but unlikely) solution is a legislative override of Acree and Cicippio-Puleo, or an amendment to the TVPA to address this most egregious form of state-sponsored extra-judicial killing.

Declaring War and Executive Power

by Seth Weinberger

In the run-up to the invasion of Iraq, I published an op-ed in the Detroit News (8/28/02; the page is no longer available on the paper’s web site, but if you want to see it, email me and I’ll send it to you) arguing that the president did not need Congressional authorization to deploy troops for the invasion. My claim was that over time, as a result of precedent and Supreme Court rulings, Congress had effectively ceded the power to command troops to the president. However, Congressial war powers are still very important, and take two distinct forms. One is the power of the purse: If Congress is truly opposed to the use of force, they can cut off funding. Second, a formal declaration of war is essential if the president wants to mobilize or use the domestic arena in pursuit of the military objective. For example, during the Korean War, President Truman wanted to seize a steel mill that had been shut down by a strike, arguing that it was a critical part of the war effort. The Supreme Court, in Youngstown Sheet & Tube Co. v. Sawyer (United States Supreme Court, 1952), declared the seizure unconstitutional, as it was an executive order that infringed on an individual’s status, and therefore was legislative in nature. In his opinion for the court, Justice Black wrote that although the President is Commander-in-Chief, this role does not carry over into the domestic arena, but applies only to the actual prosecution of the hostilities. Therefore, if the president, in the course of prosecuting a conflict, needs to seize an industry, establish rationing patterns or special production schedules, or suspend the writ of habeas corpus, he must have a declaration of war from Congress. I concluded the piece by arguing that while the president could invade Iraq without a declaration of war, he might not want to, as the very nature of the war made it likely that he would in fact want to operate in the domestic arena.

Today, we learn from the New York Times that President Bush secretly authorized the NSA to spy on Americans without a warrant, using the September 2001 resolution that authorized the president to use “all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided” the 9/11 attacks. However, this is not a declaration of war. And, in particular, it lacks the crucial language that modern delcarations of war have contained, which states that “all of the resources of the country are hereby pledged by the Congress of the United States.” This language is present in the declarations for WWI and II. It is a recognition by Congress that total war is in fact total, and may require the president to act domestically in a legislative manner.

Absent such language in a formal declaration of war, I highly doubt that the president’s authorization of domestic spying is legal. And legal or not, it is certainly troubling. Especially in a war that has few metrics for victory (and I refer here to the war on terror, not the war in Iraq), it seems imperative that the president’s power to do things like this be controlled by Congress.

The Legally Meaningless McCain Amendment

by Julian Ku

As Duncan notes below, President Bush has reached a deal with Senator John McCain on the so-called anti-torture bill. I agree with Duncan that as a political, and maybe as a moral matter, the bill is a victory for McCain and critics of the U.S. detainee policies. I disagree with Duncan, however, that the bill is a “legal victory”. As a legal matter, I think the bill is largely meaningless.

Human rights groups are declaring the final bill, which had been the subject of substantial negotiations, a complete victory. According to Human Rights First, “All U.S. personnel – the military, the CIA, everyone — will now be on notice that torture and abuse are illegal, and those who engage in it will be subject to prosecution. Secretary Rice toured Europe last week claiming this is U.S. policy — and now it will be a clear U.S. law. Practices like waterboarding, stress positions, sleep deprivation and hypothermia are off the table.”

Human Rights First is a great organization but they are stating their aspirations for the bill – not what the bill actually does…

(1) Torture has always been (since 1996) illegal under U.S. law, no matter where it takes place

I am distressed at how the media and otherwise smart and thoughtful lawyers have mischaracterized his bill as a ban on “torture.” Even President Bush says that this bill “prohibits” torture. But “torture”, as defined in the Convention against Torture, is already illegal under U.S. law, whether at home or abroad. This bill does not ban torture, at least as it is defined in U.S. treaty obligations and in U.S. law. This bill bans “cruel, inhuman, and degrading” treatment (CIDT), which as I will explain, is also already illegal under U.S. law.

(2) CIDT overseas is already illegal
As I noted, though, Secretary Rice’s statements last week clarified and perhaps shifted U.S. policy to accomplish the same exact legal result. This bill simply codifies the policy that the U.S. government has already adopted, and which arguably was always the policy of the U.S. government (although poorly enforced).

(3) The definition of CIDT has not changed
It is far from clear that practices like “waterboarding” are off the table. The McCain bill adopts the definition of “cruel, inhuman, and degrading” treatment that was already established U.S. law – “CIDT” equals the prohibitions imposed by the Fifth, Eighth, and Fourteenth Amendments to the U.S. Constitution. “Waterboarding” may be immoral, but it still may not violate the U.S. Constitution. The bill adopts the lowest possible standard for CIDT. The only thing the bill arguably does is clarify that this ban applies to U.S. personnel overseas, which may not have been true before. (UPDATE: Although for a more aggressive reading of the language, see this article by Andrew McCarthy who suggests that the bill may actually require Mirandizing alleged terrorists overseas.

(4) There is still no enforcement mechanism
Moreover, the McCain bill itself is studiously silent on how it would be enforced (at least the last version I saw). Would alien detainees be able to bring civil suits? Does it create criminal liability? If so, what are the penalties? Who knows? The most likely mechanism are prosecutions under the Uniform Code of Military Justice, but what about CIA interrogators?

o o o

Everyone is kidding themselves if they think this is going to change the legal landscape dramatically, if at all. I think the bill is worth passing however, because I think it will push the Administration to focus on improving the implementation of the law regulating treatment of detainees. The implementation of the law has been the real problem, and hopefully, this bill will shift the focuse away from abstruse legal arguments and toward the nitty-gritty of trying to come up with effective but humane policies for interrogating detainees in the war on terrorism.

A Legal (and Moral) Victory Over Torture

by Duncan Hollis

Those in favor of a “gloves off” approach to the war on terror are finding themselves increasingly isolated both politically and legally. Last week, Secretary of State Rice made front-page news with her pronouncement that “As a matter of U.S. policy, the United States’ obligations under the CAT [the Convention Against Torture], which prohibits, of course, cruel and inhumane and degrading treatment, those obligations extend to U.S. personnel wherever they are, whether they are in the United States or outside of the United States.” Julian has argued that this represented a shift in policy, although Marty Lederman over at Balkinization disagrees.

Today’s news is more significant. President Bush, after months of opposition by his office (and notably personal lobbying by Vice President Cheney), has accepted Senator John McCain’s amendment to the Defense Appropriations Bill. The McCain Amendment, as it is known, will ban all U.S. government personnel from engaging in cruel, inhuman or degrading treatment of detainees — which is defined in terms of the Due Process Clause’s “shock the conscience” standard — anywhere in the world. Evidently, even the CIA will be covered under the Bill, although Senator McCain did accept certain additional protections for civilian interrogators equivalent to those already available to military interrogators (I’m not an international criminal law expert, but it’s interesting to note that McCain was quick to disassociate these new protections from the superior orders defense denied at Nuremberg). Why the capitulation? Well, on Wednesday, the House of Representatives backed the McCain Amendment by a vote of 308-122, following an earlier 90-9 favorable vote by the Senate in October. Those votes suggest any President Bush veto of McCain’s amendment might not have withstood a Congressional override.

Obviously, this represents a moral victory for those opposed to torture, the kind of conduct witnessed at Abu Ghraib and extraordinary renditions, regardless of what the terrorists do. At the same time, from a legal perspective, the McCain Amendment may reflect a shift in the locus of power which has resided almost entirely with the Executive since 9/11. Senator McCain’s campaign signaled the willingness of certain legislators to take back a Congressional role in the conduct of U.S. foreign affairs, a role now cemented in an amendment that by all accounts will become law in the days ahead. Of course, perhaps the most important question will be whether these laws actually change U.S. conduct on the ground, and, in doing so, improve the United States’ moral standing in ways that advance (rather than restrain) further efforts to achieve success against terrorism in all its forms.

The Noble Lie and International Politics

by Seth Weinberger

In the December 19th issue of the New Yorker, Orhan Pamuk (one of my favorite writers, the author of Snow and My Name is Red) has a fascinating piece about his impending trial in Turkey for insulting “Turkish identity” by discussing the Armenian genocide following World War I. Pamuk discusses his confusion at why a state like Turkey that is having so much trouble convincing the EU that it is sufficiently “Western” and “European” to merit membership would be pursuing such a troubling course of action. From an IR perspective, the answer is something along the lines of the limitations that law has to compel or induce states on issues of critical national importance. But, why would this issue, which is certainly not controversial to or disputed by most historians, constitute a sufficiently important issue that Turkey would be willing to jeopardize its EU accession talks? I’m reminded of the noble lie in Plato’s Republic, in which it is acknowledged that all states have their origins in brutality and blood, and therefore all states create national myths about their foundings that obscure those origins. These lies, while repugnant, may be necessary in the eyes of states for maintaining national identity and patriotism. So, international institutions may be limited in their ability to affect Turkish behavior on this issue. We can only hope, as does Pamuk, that the Turkish judge feels differently.

Enforcing Law and Punishing Syria, Part 2

by Seth Weinberger

Unsurprisingly, and as I suspected, the UN is having difficulty maintaining its focus in the investigation into Syrian involvement in the assassination of Lebanese former Prime Minister Rafik al-Hariri. And, while the investigation has been extended by six months, several members of the Security Council, including Russia, China (both with veto power) and Algeria, have resisted calls to accuse Syria of uncooperative behavior and to pressure Syria towards greater cooperation with the probe. This points out a serious problem for the UN specifically, and the prospects of international law more generally, (which I’ll address in more detail tomorrow when I get a break from grading final exams) namely the tension between the sovereign equality of states and the need to enforce law and punish violators. Until the UN resolves this tension (which I don’t think is likely), it’s ability to uphold international law will be limited, at best.

Arab Silence in Response to Ahmadinejad’s Remarks

by Roger Alford

The West has shown an impressive display of shock and disgust in response to Ahmadinejad’s remarks yesterday that the Holocaust is a myth. But as reported here, the silence from the Arab world has been deafening. “While official Arab reaction in such cases is usually slower than international reaction, any issue involving a defense of Israel is a thorny one for Arab governments, who risk appearing to side with Israel against a Muslim nation.”

Why is an admission that the Holocaust actually occurred and that millions of Jews actually were killed sixty years ago in any way perceived to be an appearance of siding with Israel? What kind of courage is required for a moderate Muslim leader to say that simple truth?

Live Blogging the Iraqi Elections

by Roger Alford

Pajamas Media has a nice set of stories from Kerbala, Basra, Baghdad, Babil, Mosul, Kirkuk and elsewhere in Iraq on the Iraqi elections. Just click here and then the left-hand menu gives you snapshot stories and pictures of the election in different cities.

This is very interesting stuff coming out of Pajamas Media, although I must say the contrast between pictures of serious Iraqi women voting in Iraq and wearing full-body abayas and hijabs juxtaposed right next to perky Victoria’s Secret models selling Christmas lingerie is a bit jarring.

Alaskan State Criminal Statute Applied in Canada

by Roger Alford

If someone sexually assaults a woman in Canadian territorial waters, where would you expect that person to be prosecuted? Why, in Alaska of course. Earlier this week the Alaska Supreme Court rendered an unusual decision in State v. Jack addressing the question of whether a state criminal statute against sexual assault could be applied extraterritorially to prosecute someone who committed the act in the territorial waters of Canada.

I’m all in favor of prosecuting persons who commit sexual crimes in Canadian territorial waters. But the question is, by whom and under what law? I am not a maritime expert, but it would appear the options are prosecution under the law of the coastal state (Canada) or prosecution under the law of the flag (United States). But in the latter case, does the law of the flag refer to state or federal law? One would have thought federal law.

There are two remarkable aspects of the decision. First, the Alaska Supreme Court ruled that the statute’s reference to commission of the crime on the “high seas” could encompass the territorial waters of Canada. The relevant Alaska statute provided that “The jurisdiction of the state extends to … the high seas to the extent that jurisdiction is claimed by the United States of America, or to the extent recognized by the usages and customs of international law or by agreement to which the United States of America or the state is a party.” It made no reference to jurisdiction over the commission of crimes in the territorial waters of another country. Nonetheless, the Court ruled that “[i]n view of the broad interpretation that should be given to the statute, we think that the State’s definition [of ‘high seas’] encompassing all ocean waters beyond the boundaries of the low-water mark is appropriate.” The obvious problem, of course, is that criminalizing conduct on the high seas does not encroach on the territorial sovereignty of another country, whereas criminalizing the commission of a crime in Canada has the potential to encroach on Canada’s authority as the coastal state, not to mention U.S. federal authority as the flag state.

Second, the Alaska Supreme Court broadly construed the effects doctrine to encompass this sexual assault. It ruled that “the Alaska ferry route to the state of Washington is an important transportation link between the state and the contiguous forty-eight states. Most of the cities and towns in Southeastern Alaska served by this link lack any road access. Further, the ferries are important to the tourism industry. As the State puts it: ‘If people believe that crimes can be committed on ferries traveling to Alaska without any real risk of being prosecuted, it will have a harmful effect on Alaska’s welfare–particularly on the personal security of ferry crew members and persons traveling to and from Alaska on ferries as well as on tourism and the economy.’ These interests are substantial and suffice to satisfy the application of the effects doctrine in this case.”

Unfortunately, it appears the Alaska Supreme Court fails to appreciate the full nature and purpose of the effects doctrine. The doctrine was developed to address extraterritorial economic violations that caused direct and substantial effects on the U.S. domestic market. This seems a somewhat strained interpretation for upholding a criminal conviction for sexual assault based on the potential economic harm to Alaskan tourism, particularly in the absence of some cognizable legislative intent to address such economic harms.

The prospect of a patchwork of state criminal laws regulating extraterritorial crimes occurring in the territorial waters of other countries should give one pause. For example, if Jack is correct, then potentially several coastal U.S. states on the Pacific or Atlantic seaboard could plausibly regulate crimes of this sort occurring in the territorial waters of Canada, Mexico, or various Caribbean countries. And of course, Canadian provinces potentially could assert a claim to do the same in U.S. territorial waters.

Airstrikes on Iran Move One Step Closer to Possibility as Ahmadinejad Declares Holocaust a "Myth"

by Roger Alford

While on the subject of the Holocaust, in case you missed it, the madness of Mahmoud Ahmadinejad is now nearing clinical diagnosis with his latest remarks. As reported in the New York Times, Ahmadinejad had this to say today: “Today, they have created a myth in the name of Holocaust and consider it to be above God, religion and the prophets … If you committed this big crime, then why should the oppressed Palestinian nation pay the price? This is our proposal: if you committed the crime, then give a part of your own land in Europe, the United States, Canada or Alaska to them so that the Jews can establish their country.” Mahmoud Ahmadinejad appears to seriously think that Israel should relocate. Now ask this: Exactly how do you move a country against its will? One can see how Israel might interpret this “proposal.”

At this moment Israel reportedly is preparing for airstrikes on Iran in March. As reported in the London Times, “defence sources in Israel believe the end of March to be the ‘point of no return’ after which Iran will have the technical expertise to enrich uranium in sufficient quantities to build a nuclear warhead in two to four years. ‘Israel — and not only Israel — cannot accept a nuclear Iran,’ Sharon warned recently. ‘We have the ability to deal with this and we’re making all the necessary preparations to be ready for such a situation.'”

The “Begin Legacy” of airstrikes on Iraq in 1981 is one step closer to reality for Iran.

Related Links:
The Madness of Mahmoud Ahmadinejad

New Book on Holocaust Restitution

by Roger Alford

The book that Michael Bazyler and I have been working on for over two years, Holocaust Restitution: Perspectives on the Litigation and Its Legacy (Bazyler & Alford, eds., 2006) is now available for purchase at Amazon here or NYU Press here.
The book has received good reviews (available here) such as IAGS President Israel Charney’s blurb that the book is “an invaluable text for students and scholars as well as a fascinating read for all those concerned with Holocaust and genocide issues in all disciplines and on behalf of all victims.”

The book is the culmination of months of effort to convince almost all the major players in the Holocaust litigation drama to put pen to paper and retell the story from their own perspectives. It is divided into six sections: Overview, Bank Litigation, Slave Labor Litigation, Insurance Litigation, Looted Art Litigation, and The Litigation’s Legacy. It includes chapters from the top diplomats (including Stuart Eizenstat and Otto Graf Lambsdorff), top historians (including Michael Berenbaum and State Department historian William Slany), top plaintiffs (including Burt Neuborne, Mel Weiss, Gideon Taylor, and Robert Swift), top defense counsel (including Roger Witten and Owen Pell) and prominent judges (including Thomas Buergenthal and Edward Korman). The full list of all contributors is available here. In all, we have gathered 38 contributors who have written over 30 chapters.

Since the “Look Inside This Book” feature is not yet available on Amazon, I will give you a sense of its contents from the Introduction:

Holocaust restitution is not about money. It is about victims. It is about individuals who have waited sixty years for something. Of course it is not about ‘perfect justice,’ a phrase that may never pass one’s lips in the same breath as ‘Holocaust.’ But it is about waiting for some recognition, some voucher to validate the misdeeds that have been perpetrated…. [But] Holocaust restitution is not only about the victims. It also is about those who victimized. As German president Johannes Rau put it in the December 1999 ceremony on the signing of the German slave labor settlement, … ‘I know that for many it is not really money that matters. What they want is for their suffering to be recognized as suffering, and for the injustices done to them to be named injustices. I pay tribute to all who were subjected to slave and forced labor under German rule and, in the name of the German people, beg for forgiveness.’ Such an apology is, in the words of one survivor, a ‘moral victory that will live forever.’ It is a recognition that promises a cleansing for the chlidren and grandchildren of those who victimized. It offers, if you will, a release from their past too. Holocaust restitution, then, is about satisfying the victims’ and the victimizers’ historic need for a moral accounting regarding the horrific events that transpired during and after the Second World War.
If you are interested in Holocaust restitution as a scholar or lay person, I would encourage you to purchase the book. I’m not tooting my own horn when I say that it was a joy to work with these great people and I think you will find it a delight to read.

Strawberries versus Skin Cancer

by Duncan Hollis

That’s a central question for states as they gather this week in Dakar, Senegal for the 17th Meeting of the Parties to the Montreal Protocol. Unlike its more controversial cousin, the Kyoto Protocol, the Montreal Protocol is widely regarded as the success story for using treaties to address a global problem — i.e., the hole in the ozone layer. Although it’s a harmful pollutant at ground-level, it is well documented that we need ozone gases in the atmosphere over our heads, as they block out harmful ultraviolet-B radiation from the sun. The less protection we get from the ozone layer, scientists say, the more we’ll see incidences of skin cancer and weakened immune systems, not to mention damage to crop yields, fisheries, and other eco-systems. So, it was largely hailed as an achievement, when states banded together and agreed to limit their consumption and production of ozone-depleting substances. For example, you have the Montreal Protocol system to thank for no longer having ozone-depleting chemicals such as Freon or other chlorofluorocarbons (CFCs) in your automobile air conditioner or your refrigerator. Based on these results, UN Secretary General Kofi Annan has called the Montreal Protocol “[p]erhaps the single most successful international agreement to date.”

But, we’re not out of the woods yet, as there are still chemicals being produced today that threaten the ozone layer, most notably methyl bromide. Methyl bromide is a pesticide that protects certain crops, such as California strawberries and Florida tomatoes, from harmful organisms. Under the Montreal Protocol, as amended, developed states, including the United States, agreed to phase-out their consumption and production of methyl bromide by January 1, 2005, with a few exceptions, including one for “critical uses” as agreed by the parties to the treaty.

The problem was that the 2005 U.S. request for continued critical uses of methyl bromide not only exceeded all of the other states’ critical use requests combined, but the levels requested by the United States actually exceeded the consumption and production limits EPA had put in place in 2003. The U.S. position is that its farmers need methyl bromide since it’s often the only pesticide that really works; i.e., there are no technically and economically feasible alternatives to it. Thus, the claim, that without methyl bromide, you can forget about eating strawberries. On the other side, NGOs and, to a lesser extent a number of European states, have cried foul, suggesting the U.S. position is not science-based so much as it involves protecting the economic position of politically powerful lobbying groups in swing states at the expense of human health (i.e., increased rates of skin cancer) and the environment. There have also been allegations that the chemical manufacturers and distributors have long stockpiled methyl bromide in ways that won’t be covered by the treaty, but which, when used, will actually affect the ozone layer.

The methyl bromide issue proved problematic in both of the last two Meetings of the Parties, each of which required separate Extraordinary Meetings of the Parties to deal with the question of how much of a critical use exemption to give the United States and other similarly situated states (disclosure notice: I served as the U.S. lawyer to some of these meetings in 2003 and 2004). In both cases, the United States generally got what it asked for. Thus, the score to date, strawberries: 2; skin cancer: 0.

But since the treaty requires the critical use exemptions to be approved on an annual basis, the game is far from over. I am sure the methyl bromide question will prove equally tough this week in Dakar. Without wading into the quagmire of how “critical” these continued uses of methyl bromide really are, I would expect that we’ll see foreign states upping the pressure on the United States to demonstrate some political will to reduce its consumption and production of methyl bromide, regardless of whether it makes technical or economic sense to the individual farmers to do so. For example, the CFC phase-out originated before alternatives existed, and it was the phase-out itself that drove industry to find replacements. I would bet some states will take the position that the continuing broad availability of methyl bromide under the critical use exemption may actually have stymied such innovation here (although USDA says they’re working hard on researching alternatives). In any event, keep an eye on the Montreal Protocol this week to see who wins the latest round. My money is on strawberries, although I’ll use my winnings to buy SPF 40 for my kids just in case.

Council of Europe Finds Credible Evidence that US Detention Sites and Flights Were Unlawful, Investigation to Continue

by Peggy McGuinness

Dick Marty, the Council of Europe Rapporteur to the Committee on Legal Affairs and Human Rights announced today that there is credible evidence of secret detention centers and of detainees being transported through Council member states without required judicial involvement. No detainees are currently being held by the United States in Europe, though Poland and Romania are believed to be the two European states in which the US operated the detention centers. Any detainees that had been held in Europe, Marty asserted, the US has moved to North Africa. Marty made clear that his report does not conclude that wrongdoing has taken place, but rather that the allegations of illegality — most of which are familiar from press reports and from investigations by human rights groups — are credible. His full report to the Council is due in January. Here are some excerpts from today’s statement:

From a general point of view, the rapporteur underlined that the information gathered to date reinforced the credibility of the allegations concerning the transfer and temporary detention of individuals, without any judicial involvement, in European countries.

Legal proceedings in progress in certain countries seemed to indicate that individuals had been abducted and transferred to other countries without respect for any legal standards. It had to be noted that the allegations had never been formally denied by the United States. The rapporteur takes note of the situation and deplores the fact that no information or explanations had been provided on this point by Ms Rice during her visit to Europe.

The rapporteur urges all member governments to commit themselves fully to establishing the truth about flights over their territories in recent years by aeroplanes carrying individuals arrested and detained without any judicial involvement. The Rapporteur intends to ask the leaders of the parliamentary delegations to the Assembly to take initiatives within their parliaments in order to obtain more precise information on this matter, either by putting questions to their governments or by proposing the setting up of committees of enquiry. In fact, the delegations to the Parliamentary Assembly can make use of their unique position to lobby national parliaments to shed light on the matter. Mr Marty welcomes the fact that steps have already been taken here by certain national parliaments.

While it was still too early to assert that there had been any involvement or complicity of member states in illegal actions, the seriousness of the allegations and the consistency of the information gathered to date justified the continuation of an in-depth inquiry. If the allegations proved correct, the member states would stand accused of having seriously breached their human rights obligations to the Council of

In this connection, the rapporteur underlined that, although contacts between secret services were entirely normal and even necessary in the fight against terrorism, it was important for governments to exercise proper supervision over them (see here the detailed principles set out by the Assembly in Recommendation 1402 (1999) on control of internal security services in Council of Europe member states).

Dick Marty stressed that the aim of the Parliamentary Assembly, as the Council of Europe’s political/parliamentary organ, was not to condemn individual countries or seek to impose penalties but to defend the values shared by the member states and combat terrorism resolutely and thoroughly, while, however, complying with the fundamental principles of states founded on the rule of law and the observance of human rights.

The full press release from the Council is here. I am not familiar with the principles governing intelligence service cooperation in the Council, but it appears that the investigation is focused on the extent to which the members of the Council have complied with those as well as other minimum human rights requirements in the Charter.

As I blogged last week, the European investigations will likely remain a focus of trans-Atlantic relations until the Council investigation is complete and, perhaps until some of the legal proceedings (including this case brought in Italy against CIA officials) are resolved.

NB: The Italy case raises some interesting questions about the application of consular immunity to a U.S. intelligence officer operating under official consular/diplomatic cover.

France’s Rift: Culture, Not Color…

by Chris Borgen

… this is the title of an op-ed in today’s International Herald Tribune by Spencer Boyer. Spencer and I were law school classmates and I appreciate his insights.

His essay returns to a topic that we have discussed here on Opinio Juris–the riots in an around Paris–but he is provocative in how he assesses prejudices on both sides of the Atlantic. Here are a couple of excerpts:

I had my first interaction with the French police on a December night in 1991. I had recently moved to Paris, and was strolling back to my tiny apartment in an exclusive neighborhood. I probably looked scruffy in my old army jacket and jeans. Suddenly two unmarked police cars pulled up. Four officers climbed out, asked where I was going, and demanded to see my “papers.” But when I began speaking French, one of the officers heard my accent. “Oh, you’re American? Please excuse us. Have a great evening.”

I was stunned. Americans had warned me that the French didn’t welcome people of color and constantly harassed Arabs and Africans. But I soon learned that being an African American in France is wonderful. I was generally treated better than I would have been back in the States…

Throughout the 20th century, legions of black American artists, writers, and jazz musicians escaped racism at home by fleeing to Europe. Paris, in particular, has been a second home for black intellectuals such as Richard Wright and James Baldwin.

I have inherited that legacy. Europeans associate me with the aspects of America they embrace, especially African American art and music, and the historical struggle for freedom and civil rights – exotic, but not threatening. It never seemed to matter that I personally was not artsy or hip. I was “ethnic,” but I wasn’t an immigrant with a culture and customs that were so different as to be feared. I was Christian, not Muslim. Different, but not too different.

And this, in my experience, is why prejudice in Europe is such a dramatically different beast from prejudice in the United States. In America, prejudice has long been a question of color. In Europe, it’s not about color, it’s about culture. France doesn’t have a race problem. It has a problem embracing the culture and customs of its immigrants and their children.

The whole essay is well worth reading.

Swedish Supreme Court Decision in Åke Green

by Roger Alford

An English translation of the Swedish Supreme Court decision in Åke Green was sent to me today by the religious liberty organization Alliance Defense Fund. A copy of the English translation is here (UPDATE: link now fixed). The original Swedish Supreme Court decision is here. In brief, the case involved the prosecution of pastor Åke Green for hate speech for preaching and publishing a sermon against homosexuality. The text of the sermon is here.
The most interesting aspect about the decision is that the Court viewed the Swedish constitution as imposing no impediment to his prosecution, relied almost exclusively on Green’s rights under the European Convention on Human Rights, and then rendered its decision based on its understanding of what the European Court of Human Rights would do if seized with the case. It is an important example of a national court enforcing European Convention obligations in light of ECHR jurisprudence. Here is the key language:
It is not obvious that the constitutional protection of freedom of expression would constitute an impediment to convicting ÅG as charged….Nor does the Constitution in other respects prevent him from being convicted under the provision on agitation against a national or ethnic group….The assessment that then must be made is to what extent the European Convention affects the issue of responsibility for ÅG. Freedom of religion is there regulated in Article 9 and freedom of expression in Article 10…
Freedom of religion under Article 9 includes freedom, either alone or in community with others, and in public or private, to manifest one’s religion or belief, in worship, teaching, practice and observance. Freedom of expression under Article 10 includes the right to receive and impart information and ideas without interference by public authority. Both freedoms may be subject to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of health or morals, or for the protection of the rights of others. In other respects it can be noted that freedom of religion may also be restricted to protect public order and freedom of expression to prevent disorder or crime and for the protection of the reputation of another….

What is conclusive seems to be whether the restriction of ÅG’s freedom to preach is necessary in a democratic society, which means that an evaluation must be made of whether the restriction is proportional in relation to the protected interest….In view of the central significance a religious conviction has for the individual, it must be assumed that when applying the European Convention some restraint must be maintained with regard to approving restrictions as legitimate under Article 9. The equivalent applies if ÅG’s statements were to be judged in accordance with Article 10. The European Court of Human Rights’s practice in applying Article 10 may provide guidance even if the assessment is on the basis of Article 9….

In an overall assessment of the circumstances – in the light of the practice of the European Court of Human Rights – in the case of ÅG it is clear at the outset that this is not a question of such hateful statements that are usually referred to as hate speech. This also applies to the utterance of his that may be regarded as most far-reaching, where sexual abnormalities are described as a cancerous tumor, since the statement, seen in the light of what he said in connection with his sermon, is not of such a nature as can be regarded as promoting or justifying hatred of homosexuals. The way in which he expressed himself cannot perhaps be said to be so much more derogatory than the words in the Bible passages in question, but may be regarded as far-reaching even taking into account the message he wished to convey to the audience. He made his statements in a sermon before his congregation on a theme that is in the Bible. The question of whether the belief on which he based his statements is legitimate or not is not to be taken into account in the assessment…

Under such circumstances it is probable that the European Court of Human Rights, when examining the limitation on ÅG’s right to preach his ideas based on the Bible which a verdict of guilty would constitute, would find that the limitation is not proportionate and thereby would constitute a violation of the European Convention.

Enforcing the Law and Punishing Syria

by Seth Weinberger

Lots of news today regarding the involvement of Syria in Lebanese politics and specifically the assassination of former Lebanese Prime Minister Rafik a-Hariri. On the same day that the UN annouced that it has new evidence of Syrian involvement in the assassination and accused Syria of obstructing the investigation, a car bomb exploded in Beirut , killing a prominent anti-Syrian legislatorGebran Tueni (suspicious, no?).

Now, while we haven’t seen the complete results of the UN investigation into Hariri’s death, nor do we know whether Syria will be implicated in today’s bombing, let’s assume that Syria is eventually determined to be complicit, if not responsible, for both acts. Here is an excellent test of whether the UN is willing and able to enforce its own laws. Assassination of the political leaders of another state is, short of naked aggression, about the most clearly illegal act one state can take (leaving aside the question Julian considers here of targeted killings/assassinations during times of war). Will the UN punish Syria? Will Russia accept the evidence and judgment against its former client and refrain from vetoing any sanctions? My guess is that international opinion and pressure will be so overwhelming that Russia will go along with any punishment against the Syrian state, but that the punishment will be sadly weak. Sanctions are a fairly inefficient tool of statecraft, have little effect (link is to the JSTOR database; subscription required), and typically punish the civilian population more than political leadership (I’ll consider the problem of sanctions in a post later this week). So, for those of you who have faith in the UN and international law, how do you see this playing out? Will the UN be able to punish Syria sufficiently, and what form will that punishment take?

Top International Law Journal Or Mid-Level Mainline Journal?

by Roger Alford

Two stories on choosing between publishing in a mid-level mainline journal and an international law journal:

Story Number 1: I had a colleague a few years back who was going up for tenure that year and had outstanding offers to publish her article from the Harvard International Law Journal and the Rutgers Law Review. She was particularly concerned that year about getting tenure first and foremost and therefore canvassed the opinions of various tenured faculty members about her choice. The uniform answer: Rutgers Law Review. As a tenured faculty though, she looks back on that decision with some regret and wishes that she had chosen the Harvard International Law Journal because she has a strong suspicion it would have been read and cited by more scholars in her field.

Story Number 2: I had a colleague at a major law school who is an old friend who doesn’t write in the international law field but writes prolifically on the subject of negotiation. He did a one-off piece on negotiating the Middle East peace conflict. He called for guidance on where to place the article because he really wanted to target international scholars. He had an offer from Yale International Law Journal and wanted to know what was the cut-off for expediting with mainline journals that made it more worth his while to go with one of them instead of the YILJ. Given his objectives, I recall that I said something like top 25, otherwise go with YILJ. He ended up going with the Yale International Law Journal, and the article is cited quite frequently.

As most readers know, thanks to Washington & Lee Law School’s “Most Cited Legal Periodical List” there is now objective data to assist in making such choices. According to that website these are the top ten international law journals in terms of citations (excluding Tulane Law Review which I don’t count as a true international law journal), together with their overall rank among all law journals:

1. American Journal of International Law (#18)
2. Virginia Journal of International Law (#54)
3. Fordham International Law Journal (#61)
4. American Journal of Comparative Law (#69)
5. American University International Law Review (#75)
6. Harvard International Law Journal (#78)
7. Yale International Law Journal (#82)
8. Michigan Journal of International Law (#83)
9. Vanderbilt Journal of Transnational Law (#85)
10. International Lawyer (#99)

This is very helpful as far as it goes, but I am still troubled with the possible implications of this information. This data would suggest that by and large international law scholars will be cited with greater frequency if they go with mid-level mainline journals than top international law journals. But do our international law colleagues really read and cite those journals with greater frequency? Is it really better to go a with any top fifty law journal (such as Houston Law Review, or Depaul Law Review, or University of Cincinnati Law Review to name but a few) instead of a top five international law journal? I rather doubt it.

I would be quite curious what your opinions are on this topic, as it is a perennial problem for many international law scholars. Scroll down and vote.

Given the choice between any top fifty mainline journal or any top five international law journal you should publish in which journal:
One Of The Top Fifty Mainline Journals
One of the Top Five International Law Journals

Free polls from

Israel Defends Legality of Targeted Assassinations

by Julian Ku

The Israeli Defense Forces has long used targeted assassinations to eliminate alleged terrorists, as Steven Spielberg’s newest film Munich reminds us. Interestingly, the government of Israel is currently defending the legality of the practice, invoking the customary international law of war to justify its recent killing of two alleged Palestinian terrorists. The theory here is that after Israel withdrew from the Gaza strip, any assassinations in Gaza are legal attacks on Israel’s military enemies on their own territory.

I have to admit I haven’t thought much about the legality of assassinations or killings like this. The U.S. also engages in this practice, although I think the favored term is “killing” since assassinations are prohibited by Executive Order 12333 . Unlike Israel, though, the U.S. has not (to my knowledge) defended the legality of killings or assassination. I imagine, though, that when and if that time comes, the U.S. will look to Israeli courts for legal precedents.

Law Student Crowned Miss World

by Roger Alford

On the lighter side of international law, over the weekend a law student was crowned Miss World 2005. You would think the most beautiful law student in the world would attend the most beautiful law school, (as ranked by 100,000 students who attend elsewhere). But no, Unnur Birna Vilhjalmsdottir, 21, is a law student in Iceland of all places, and apparently a serious one at that. As reported here, Unnur was in China on a four-week tour with the other 101 Miss World contestants and while at the contest, she found time to continue her studies. “I brought my law books with me and study in the evenings after dinner.”

I know at this point I should post a photo to drive up traffic, but I just can’t bring myself to. Oh, and what was her response when asked if she could have one wish granted what would it be? You guessed it. “That the people on this planet could live in peace…”

Rice’s Strategic Vision – A Democratic Peace, But What About International Law?

by Julian Ku

Secretary Rice continues her PR offensive. This time, her target audience is U.S. readers of the Washington Post’s Sunday Outlook section and her topic is not torture, but a restatement of the Bush Administration’s main strategic goals in foreign policy as the search for a Kantian(?) “democratic peace.” None of this is new exactly, but it is interesting nonetheless. Here’s a key graf:

Our experience of this new world leads us to conclude that the fundamental character of regimes matters more today than the international distribution of power. Insisting otherwise is imprudent and impractical. The goal of our statecraft is to help create a world of democratic, well-governed states that can meet the needs of their citizens and conduct themselves responsibly in the international system. Attempting to draw neat, clean lines between our security interests and our democratic ideals does not reflect the reality of today’s world. Supporting the growth of democratic institutions in all nations is not some moralistic flight of fancy; it is the only realistic response to our present challenges.

This is all very well and good, but there is something missing. There was no reference to building a world of democratic states that band together through international treaties to develop a global rule of law. Or to strengthen international institutions like the U.N. There was, in short, no explicit reference to the development of international law.

Was this omission deliberate? You betcha!

El-Baradei Nobel Lecture: Imagine a World

by Roger Alford

The text of Mohamed El-Baradei‘s Nobel Peace Prize Lecture is here. It is quite good. It is perhaps too utopian for my taste, but if any group deserves utopian license it is that category of individuals known as Nobel Peace laureates. We may have in El-Baradei a prophet of peace from (and for) the Arab world.

The speech is hopeful, cosmopolitan, poetic, tolerant, demanding, and imaginative. It does not target any one nation (i.e., the United States) for specific criticism. It does not attempt to address current events (i.e., the war in Iraq). Rather, it focuses on the broad sweep: globalization, intolerance, world poverty, and nuclear proliferation. It is far more expansive than you might expect from someone who has spent the last twenty years focused on a single theme. The essence of the speech is a call for the world to address root causes that create human strife. Best of all it uses simple language to convey profound ideas.

Here is the hopeful and eloquent conclusion:

Imagine what would happen if the nations of the world spent as much on development as on building the machines of war. Imagine a world where every human being would live in freedom and dignity. Imagine a world in which we would shed the same tears when a child dies in Darfur or Vancouver. Imagine a world where we would settle our differences through diplomacy and dialogue and not through bombs or bullets. Imagine if the only nuclear weapons remaining were the relics in our museums. Imagine the legacy we could leave to our children. Imagine that such a world is within our grasp.

Nobel Prizes and Power: The UN, International Law, and Hegemony, Part 2

by Seth Weinberger

As IAEA chief Mohamed ElBaradei is about to receive the Nobel Prize at the same time as he announces that the international community is losing patience with Iran’s intransigence over its nuclear program, I’m prompted to continue thinking about the relationship between international law and US power. Now, it’s true that the IAEA has had numerous successful instances of preventing nuclear proliferation. However, one has to distinguish between the easy cases, where states would prefer not to proliferate but feel pressured by the security dilemma to do so, and the hard ones, where states really do want nuclear weapons. Getting Brazil and Argentina to step back from their nuclear arms race, or convincing Ukraine and Kazakhstan to return their newly acquired nukes to Russia, while admirable and important efforts, are not the same as preventing an aggressive rogue state from proliferating. When the chips are down, as with Iraq (before the invasion), Iran, and North Korea, the IAEA’s effort has been less than stellar.

There is a good chance that matters with Iran will come to a head. If Iran continues to refuse to give up its “right” to uranium enrichment and refuses the recent proposal to use fissile material enriched in Russia, what will the IAEA and the international community do? Will it be capable of enforcing its own rules and regulations and slap sanctions on a country that violates its clear commitments and duties under the Nuclear Non-Proliferation Treaty? The institutional structure of the UN means that any and all punitive actions to be imposed by the IAEA have to go through the Security Council where it subject to veto by, in this case, Russia. Even if sanctions are imposed, will the UN be able to keep them in place? As the oil-for-food scandal makes clear, sanctions create a powerful moral hazard by raising the price of goods and creating the opportunity for huge profits, encouraging defection and cheating.

Regardless of whether you agree with the logic of the invasion of Iraq, there is an important lesson there that is relevant to the problem of Iran. If the UN is unwilling or incapable of enforcing its own rules and international law, the US as global hegemon and police enforcer may take matters into its own hands. Iraq is not the only pertinent example: the NATO bombing of Serbia to protect the Kosovars is another example of the US (in cooperation with other actors) picking up the slack where the UN was incapable of living up to its ideals and laws. As I mentioned in part 1 of this post, hegemony and the willingness to use power outside of the framework of international law may be necessary for those laws to be enforced. If you don’t think that the US should use force to enforce international law, how else can the law be respected?

The Madness of Mahmoud Ahmadinejah

by Roger Alford

In 1933, his first year as chancellor, Adolph Hitler began boycotting Jewish shops. By 1935 he deprived Jews of German citizenship. In early 1938, laws were passed restricting Jewish economic activity. In October 1938, thousands of Polish Jews were deported. Then, on the nights of November 9-10, 1938, a pogrom was unleashed on Jewish businesses as gangs of Nazi youth broke the windows of Jewish businesses and homes, burning synagogues and looting. Kristallnacht (“The Night of Broken Glass”), as it came to be known, was the defining moment for many when they realized the true madness that was Adolph Hitler. That night German theologian and political dissident Dietrich Bonhoeffer circled Psalm 74:8 in his Bible: “They said in their hearts, let us destroy them together: they have burned up all the synagogues of God in the land.” He wrote in the margin next to the passage, “10 November 1938.”
There is a little-known man named Mahmoud Ahmadinejad who is now the President of Iran. If you are like most people, you probably have only the faintest clue who he is. If you don’t know him, read this short but chilling biography.
On October 27, 2005–the closing day of Ramadan–this man, Mahmoud Ahmadinejad, called on Israel to be wiped off the face of the earth. The new Iranian President reportedly “repeated his call, from earlier in the week, for Israel to be annihilated, and the “Zionists” (i.e. Jews) exterminated, while several tens of thousands chanted anti-Semitic and anti-American slogans.” Following those remarks, Tony Blair responded “I felt a real sense of revulsion at those remarks … There has been a long time in which I’ve been answering questions on Iran with everyone saying to me ‘tell us you’re not going to do anything about Iran…. If they carry on like this, the question people are going to be asking us is, ‘When are you going to do something about this,’ because you imagine a state like that with an attitude like that having a nuclear weapon.” EU leaders issued a joint statement that same day: “Calls for violence, and for the destruction of any state, are manifestly inconsistent with any claim to be a mature and responsible member of the international community.” Israel is so alarmed with events in Iran that Netanyahu is now calling on Sharon to adopt the “Begin legacy,” a reference to the 1981 bombing of Iraq’s nuclear facility.
Yesterday, this man Ahmadinejad was reported to describe Israel as a “tumor” that should be removed to Europe. These were his words: “Some European countries insist on saying that Hitler killed millions of innocent Jews in furnaces and they insist on it to the extent that if anyone proves something contrary to that they condemn that person and throw them in jail. Although we don’t accept this claim, if we suppose it is true, our question for the Europeans is: ‘Is the killing of innocent Jewish people by Hitler the reason for their support to the occupiers of Jerusalem?’ “If the Europeans are honest they should give some of their provinces in Europe – like in Germany, Austria or other countries – to the Zionists and the Zionists can establish their state in Europe. You offer part of Europe and we will support it.” Then Ahmadinejad said he will continue to develop nuclear power and that the West had no right to suspect Iran.
Thankfully, the reaction from world leaders was swift and strong. The United Nations, United States, France, Germany and Britain have all unequivocally rebuked Ahmadinejad, with Annan expressing shock, Merkel calling his words “totally unacceptable,” Jack Straw condemning them “unreservedly,” and the State Department describing them as “appalling and reprehensible.” But Ahmadinejad has refused to back down.
As we divert our gaze toward other concerns, we should not miss the momentous nature of current events in Iran. In the course of a few weeks, the Iranian President has called for the annihilation of Israel, denied the “claim” that millions of innocent Jews were killed in the Holocaust, and offered to support any Europeans who would work to relocate Israel. Thus, we have from the mouth of one man – the leader of a country seeking nuclear capability no less – a bold call for a new Holocaust and a flat denial that the original one ever occurred.
I am not given to hyperbole, but when is the defining moment that we realize the madness that is Mahmoud Ahmadinejad? I fear we should be circling that passage from Psalm 74 again: “They said in their hearts, let us destroy them together” and writing in the margin “8 December 2005.”

In Praise of Treaty Denunciations

by Roger Alford

What if contract law scholars never studied the end game? What if they offered little to no analysis of early contract termination, rescission, or frustration of purpose? What if the entire focus of contract law was on contract formation, performance and breach, and that any unilateral lawful attempts to avoid contractual obligations were looked at with a jaundiced eye? What if Holmes never stood up and freely admitted that getting out of contractual obligations actually may be a good and salutary thing for the effective functioning of our economic system?

In many respect that is the state of affairs in the study of international treaties. Larry Helfer has just published a wonderful article in Virginia Law Review that begins to fill that void. Helfer makes a convincing case that sometimes treaty denunciations may actually be a good thing for the effective functioning of the international legal system.

Entitled Exiting Treaties, available here and on SSRN here, the article addresses the subject of the lawful termination of treaties. As Helfer notes, “[g]iven the prevalent use and diverse design of denunciation and withdrawal clauses, it is surprising that the subject of exiting treaties has received so little attention in international law and international relations … scholarship.” (p. 1585). Indeed.

So what are exit clauses? “Distilled to their essence, exit clauses create a lawful, public mechanism for a state to terminate its treaty obligations or withdraw from membership in intergovernmental organization. They do not require the consent or approval of other states and may often be effectuated simply by providing notice to the other parties.” (p. 1582). The Article discusses why exiting treaties is different – most importantly that it is lawful – and then offers some nice empirical analysis of the practice of treaty denunciations. (Peruse the tables on page 1603-1607 for a picture of denunciations in a nutshell).

But Helfer does not end there. After offering empirical analysis of treaty exit he then provides a theoretical basis to distinguish between treaty breach and treaty exit, offering “prescriptions for negotiators to structure denunciation and withdrawal clauses in ways that augment the cooperation-enhancing functions of exit while diminishing the incentives for unilateral opportunism.” (p. 1611). In short, Helfer thinks critically about how to structure exit options more thoughtfully into the process of treaty formation.

In his conclusion he offers this apt summary of why the article is important: “Although the possibility of unilateral denunciation and withdrawal may seem anathema to the successful functioning of international law, this Article suggests a strikingly different conclusion – that exit may sometimes enhance interstate cooperation.” (p. 1647).

Larry’s a friend and old classmate of mine so admittedly I am biased. But objectively speaking this article is definitely worth reading and taking quite seriously.

I may torture the Latin here, but perhaps the maxim should be amended to read: Pacta sunt servanda nisi exitus.

Red Cross Movements Adopt Red Crystal, Clearing Way for Israel to Join

by Peggy McGuinness

In very welcome news on the humanitarian law front, the signatory states of the Geneva Conventions voted yesterday (98 in favor, 27 against, 10 abstentions) to adopt a Third Optional Protocol, adding the red crystal symbol to the red cross and red crescent as a permissible emblem. This clears the way for membership into the movement of Isreali relief agency Magen David Adom.

See full details at the ICRC website, here.

Rice Shifts U.S. Policy on Interrogation, and Gets No Credit

by Julian Ku

Secretary of State Condi Rice appears to have shifted or at least clarified U.S. administration policy over whether the Convention Against Torture’s prohibition of “cruel, inhuman, and degrading” treatment extends to U.S. government personnel operating overseas. In a news conference with the Ukraine Premier, she stated (emphasis added):

As a matter of U.S. policy, the United States’ obligations under the CAT [United Nations Convention Against Torture], which prohibits, of course, cruel and inhumane and degrading treatment, those obligations extend to U.S. personnel wherever they are, whether they are in the United States or outside of the United States.

Despite this statement, both this Washington Post article and this NYT piece suggest that Rice’s statement has “raised questions” largely because she couches her statement “as a matter of policy.” But so what? Because the Convention Against Torture is non-self executing, and because Congress had not (prior to the McCain Amendment) attempted to extend “CID” prohibitions overseas, then any decision to do so by the executive branch is plainly “a matter of policy.” It is a matter of policy until or unless Congress decides to codify it as a matter of “law” (which it might do so in the McCain Amendment).

U.S. statutes implementing the Convention Against Torture (such as 18 U.S.C. § 2340A(a).) have only criminalized torture by U.S. personnel overseas, and not “cruel, inhuman and degrading” treatment. Article 16 of the CAT could be read in this limited way: “Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture. . . .” (emphasis added). Note also that the CAT Article 5 treats torture differently, requiring countries to establish jurisdiction over torture “[w]hen the alleged offender is a national of that State;” or “[w]hen the victim was a national of that State if that State considers it appropriate.

So Rice appears to have won an internal administration battle of “policy”, which shouldn’t be sniffed at by commentators. The U.S. government has unequivocally agreed to prohibit “CID” treatment by U.S. personnel overseas. This sounds like the right decision, at least as a matter of policy. No rendition policy is going to succeed without cooperation of foreign governments and accepting the prohibition on “cruel, inhumane, and degrading” treatment is politically necessary. I’m less sure this is required by U.S. treaty obligations, but that is now an academic question.

Where Have All the Treaties Gone?

by Duncan Hollis

The United States is currently bound by over 10,000 treaties and other international agreements. That’s a big number. But as Detlev Vagts noted seven years ago (subscription required), the United States has done a poor job of making these treaties publicly available. In terms of publications, the situation has only deteriorated in the interim. If you are hoping to find a hardbound print of a recent treaty in the United States Treaties series (UST), good luck. The last UST volume contains treaties from 1984. And even if you are willing to accept a pamphlet version from the Treaties and International Acts Series (TIAS), the most recent treaty text you will find dates from 1996. Of course, the Senate has recently begun posting treaties submitted to it by the President (see here and here), and various international organizations also tend to make multilateral treaties available online. Still, if you are looking for bilateral executive agreements, you frequently have to rely on (and pay for) unofficial, private sources (e.g., Hein Online, Lexis, Westlaw, Oceana).

Now, as someone who worked in the Treaty Office at the State Department for several years, I can attest that the publication lag was largely a resources problem – there was simply neither the money nor the personnel to keep up with a dramatic expansion in U.S. treaty-making. Still, the “lack of resources argument” was often a cold comfort for international lawyers trying to find “official” texts for purposes of research, citation to courts, etc. Moreover, to the extent one views these treaties as the “supreme Law of the Land” under Article VI and attendant Supreme Court caselaw, there is a serious notice problem when the public has no readily available way to access the contents of these instruments.

Fortunately technology (with a little push from Congress) seems poised to save the State Department from further criticism. In accordance with Section 7121 of P.L. 108-458, the State Department must now post online international agreements that it otherwise intends to publish in TIAS within 180 days of their entry into force. Nearly 1500 such agreements are now available, dating from 1998 to the present. You can find them here as part of the State Department’s “International Agreements Collection.”

This is good news for those of us who do treaty research on a regular basis. It may not make treaty-research any easier; there is still no “one stop shopping” for U.S. treaty texts. But it is certainly worth applauding that texts previously unavailable short of a phone call to Foggy Bottom can now be accessed online. And without appearing greedy, might I suggest it should serve as a precursor to putting all U.S. treaties and international agreements online at some point in a publicly available, official forum. Until then, happy treaty-hunting.

Pinochet and Precedent

by Seth Weinberger

A Chilean court has just stripped former dictator Augusto Pinochet of his immunity so that he may face human rights charges in the disappearances of 29 people. While this may be a good decision from the perspective of retributive justice (see my earlier post on this), it has some troubling implications for international politics. Not the least of which is the possibility of undermining the likelihood of striking bargains in order to secure the ceding of power by dictators in other countries in the future. Dictators who believe that they will face prosecution and punishment are much less likely to step down and allow a peaceful transtition than are dictators who believe they will enjoy a cushy life in exile, or at least the chance to live out their dotage without being dragged into the dock. Now, while it may be evident to all that Pinochet deserves to be punished for his crimes, is that worth perhaps prolonging the rule of other brutes in other countries?

The UN, International Law, and Hegemony; Part 1

by Seth Weinberger

Last week, US Ambassador to the United Nations John Bolton claimed that the UN was demonstrating its irrelevance by adopting several resolutions calling on Israel to withdraw from the West Bank and the Golan Heights. Bolton argued that the resolutions were undermining the real progress being made in the peace process, and only served to advance one narrow position and to alienate Israel.

For a scholar of IR, this demonstrates the fundamental problem with international law: the bodies charged with interpreting and enforcing the law have little to no ability to enforce it. While the UN is most capable of passing symbolic, non-binding statements and resolutions, when it comes to actually enforcing the dictates of international law, it has few teeth. Rwanda is left to slide into genocide, Sudan continues to allow the janjaweed to rape and pillage while sitting on the UN Human Rights Commission, UN peacekeepers stand by and allow the Serb army to massacre the inhabitants of Srebrenica, and Kosovo is only defended thanks to the good graces of NATO.

However, that is not to say that international law has no purposes or power. It does. But not in the sense that domestic law does. International law much resembles a domestic society with a judiciary and legislature, but no police force. There are bodies that can create law and interpret it, but not to arrest law-breakers and punish them. The power of international law rests mostly in the phenomenon of legitimacy. States that conform to international law develop a characteristic of legitimacy that makes it more likely that other states will cooperate on other issues in the future, which can contribute to the creation of a legalistic international community.

Such a community still needs a police force. Lately, the US has filled this role (although leaving enforcement up to a posse means that the law will be enforced capriciously), but there is a growing movement towards internationalizing the enforcement mechanism, such as in the ICC. But, so long as the international community lacks a communal understanding of justice, fairness, equity, interest, security, and all the other concepts that go into a common identity and legal understanding, it is impossible to imagine states ceding their sovereignty to an international body with enforcement powers. Even the enlightened, post-modern institution that is the EU is running into problems with efforts to enforce its deficit rules on France and Germany, or attempts to cut farm subsidies (which contributed to the rejection of the EU constitution by France).

So, perhaps hegemony is a good thing for international law. While it may be true that the US is so powerful that it can pick and choose which laws to follow and when, it also must be recognized that without US power, there would be even less compliance with international law than there is now. That’s not to argue that US is fair in applying the law, or even always capable of solving every problem (as with N. Korea). But, when the US stays out, as it did in the early days of the Balkans crises or the initial stages of negotiations concerning the Iranian nuclear program, there is little hope for solving the really difficult problems. US hegemony may be the best guarantor of international law there is.

International Survey on Torture and Secret Interrogation

by Roger Alford

An international survey of nine countries reveals that in no surveyed country except two do a majority of respondents maintain that torture is never justified. A majority in four countries maintain that it rarely, sometimes, or often is justified. In response to the question, “How do you feel about the use of torture against suspected terrorists to obtain information” these were the results:

Never Justified: U.S. (36%), Canada (49%), Mexico (40%), S. Korea (10%), France (40%), Germany (48%), Italy (60%), Spain (54%), U.K. (48%).

Often, Sometimes, or Rarely Justified: U.S. (61%), Canada (49%), Mexico (49%), S. Korea (86%), France (57%), Germany (50%), Italy (37%), Spain (37%), U.K. (51%).

But when asked where U.S. interrogations (not torture) of suspected terrorists should occur, the overwhelming response in eight of the nine surveyed countries was not in my back yard. In response to the question “Would you support or oppose allowing the United States to secretly interrogate suspected terrorists in (Country) to try to obtain information about terrorist activities” these were the results:

Oppose: U.S. (32%), Canada (63%), Mexico (78%), S. Korea (71%), France (60%), Germany (60%), Italy (55%), Spain (66%), U.K. (62%).

What is remarkable is that there is stronger international opposition to the secret interrogation of terrorists by the United States abroad than there is to the occasional use of torture itself.

The survey is available here. An ABC news article on the survey is available here.

Secretary Rice, Torture, and the Meaning of Berlin

by Peggy McGuinness

There are weeks when the irony level in the news is almost too much to bear. This is one of those weeks. In the city where the U.S. led and won the long battles against fascism and communist totalitarianism, a city that is now a vibrant center of democracy, the capital of one of the world’s largest economies and of hte most important U.S. policy partner in Europe, a city where Kennedy declared, “Ich bin ein Berliner” and where Reagan famously demanded, “Mr. Gorbachev, tear down this Wall,” the Secretary of State is reduced to this legalism:

“It is against U.S. law to be involved in torture or conspiracy to commit torture.”

For anyone who served in Berlin as a member of the American armed forces or, as I did, a diplomat, it is simply heartbreaking.

How did we come to this? It is too early to write the complete history of the legal opinions and policy decisions that led us to this sad, yet entirely avoidable, juncture. But let’s remember what the past Secretary of State and his legal adviser wrote in 2002 about why it is important to follow the path of international law, law that the U.S. itself had created over decades of practice:

*It has high costs in terms of negative international reaction, with immediate adverse consequences for the conduct of our foreign policy.
*It will undermine public support among critical allies, making military cooperation more difficult to sustain.
*Europeans and others will likely have legal problems with extradition and other forms of cooperation in law enforcement, including brining terrorists to justice.
*It may provoke some individual foreign prosecutors to investigate and prosecute our officials and troops.
*It will make us more vulnerable to domestic and international legal challenges and deprive us of important legal options.

The renditions of terror suspects to black sites in Europe and to other countries, the capture of European citizens in European states and their transfer to Afghanistan and Guantanamo, the indefinite detention and yes, in some (how many?) cases, the mistreatment of detainees at the hands of U.S. military and intelligence personnel, have come to dominate the U.S.-European relationship. And will continue to do so for years to come, as criminal and civil investigations into U.S. policies and conduct go forward. It is more than a pity; it is to the detriment of many other bilateral and multilateral policy initiatives that are crucial to the security and safety of people on both sides of the Atlantic. What is the future of Kosovo? What about European commitments in Afghanistan? Will the U.S. ever be able to share with the Europeans the burden of training and security in Iraq? The second term was supposed to be the “diplomatic turn” for an administration that had disdained it in the first. But how can the State department feel unconstrained on the diplomatic front when it is faced not only with the deep reputational harm of the detention practices, but quite literally faced with the possibility that senior officials will be slapped with subpoenas or arrest warrants if they travel abroad?

The struggle against violent Islamic extremism (I leave to others to debate whether it is Islamo-fascism or Islamo-Bolshevism) will be with us for quite some time, perhaps our lifetimes. Like the two great struggles played out in Berlin in the 20th Century, this is one that the free world cannot lose. If the past two years of revelations – from Abu Ghraib to Guantanamo to the “mistake” of holding a German citizen without charge for nine months – has taught us anything, it is that how democratic states treat terror suspects matters a great deal in this struggle, just as it mattered in 1945 and 1989 how we dealt with the crimes of fascism and totalitarian communism. The spectacle at the Iraqi Special Tribunal yesterday of a victim of one of Saddam Hussein’s “rape rooms” being forced to concede that, unlike at Abu Ghraib under the U.S. occupation, no one used dogs on her or took photos of her, is sickening. But we can expect to see more of it. As Secretary of State Rice has said in another context, but which applies equally to the question of humane treatment of detainees and the battle to win respect for the rule of law:

“The terrorists only have to be right only once. We have to be right all the time.”

Jihad and International Law

by Roger Alford

While on the subject of Islamic radicalism, I thought it worthwhile to point you to an important article published by Professors Shaheen Sardar Ali and Javaid Rehman in Oxford’s Journal of Conflict & Security Law entitled The Concept of Jihad in Islamic International Law.
Particularly important is the discussion of differing interpretations of jihad. The authors identify three current theories of jihad: (1) a permanent state of belligerence against non-believers; (2) jihad as just war and a state of self-exertion and passivity; and (3) the third way of coexistence, in which peace is the normal relationship between Islamic and non-Islamic states.

Regarding the first interpretation, the authors write: “According to this significantly popular interpretation, the totality of jihad ideology represents a religiously sanctioned aggressive war to propagate or defend the faith…. One proponent of this theory [argues] … that … ‘The Muslims are, therefore, under a legal obligation to reduce non-Muslim communities to Islamic rule in order to achieve Islam’s ultimate objective, namely the enforcement of God’s law (the Sharia) over the entire world. The instrument by which the Islamic state is to carry out that objective is called the jihad (popularly known as the ‘holy war’) and is always just, if waged against the infidels and the enemies of the faith.'”

Regard the second interpretation, “the jihad ideology is exclusively one of self-exertion and peaceful co-existence…. [T]he advent of Islam (especially if compared with its historical epoch) brought forth a peaceful revolution. Islam set peace as the perfect social and legal ideal. War was strictly regulated and limited by compulsory legal rules based on sacred texts and equitable principles. Many Muslim scholars cite Quran and Hadith texts to put forward the argument that in the Islamic tradition (unlike popularly held belief), war is an aberration and a condition which may be resorted to only under unavoidable circumstances.”

The authors espouse a third view. “It is submitted that the truth probably lies somewhere in the middle, and on a historical plane one might argue that Islamic doctrine of war changed course in keeping with imperatives of time and circumstances: A critical feature in this regard is the contextualising of jihad. Originating from the premise of peaceful propagation of the Islamic faith and resort to war only as a measure of self-defence, the doctrine went through a change when persecution of Muslims by the Makkans lead to their emigration to Madina. [J]ihad (in the sense of use of force) was established and permitted to protect Muslims and to ensure their right to practice their religion…. The ‘age of coexistence’ or the third age in Islamic international law coincides roughly with the formative stage of international law as we know it today. In the age of coexistence, which continues to this day, peace has come to be more widely recognised as the ‘normal’ relationship between the Islamic and non-Islamic states, and treaties of amity no longer need to be of fixed duration.”

The article is quite useful in conceding that there is today a “significantly popular interpretation” of jihad in which Muslims are required to adopt a state of permanent belligerency with non-believers. It has always struck me as odd that many prominent Westerners simply ignore this strong strand of Islam that is so antithetical to international law. This approach is not an aberration, but one popular and accepted version of Islamic jihad. Having said that, it is quite encouraging that the authors identify competing notions of jihad that are compatible with international law.
We can only hope that in the ideological battle within Islam, the view that Muslims must permanently battle non-believers does not prevail.

An abstract of the article is available here. Full text requires a subscription.

Rice Offers Legal Defense of Rendition

by Julian Ku

As I mentioned earlier, U.S. Secretary of State Condi Rice is currently in Europe trying to build transatlantic ties, while at the same time fending off complaints about the CIA’s activities in Europe. One of her statements defending the legality of “extraordinary renditions” is a useful pushback against the growing chorus of criticism against the CIA. She points out (and I think she’s right) that renditions themselves are not a violation of international law. She also states, unequivocally, that the U.S. is not using renditions to countries where detainees are tortured.

Here is the key unequivocal part of her statement (emphasis added):

In conducting such renditions, it is the policy of the United States, and I presume of any other democracies who use this procedure, to comply with its laws and comply with its treaty obligations, including those under the Convention Against Torture. Torture is a term that is defined by law. We rely on our law to govern our operations. The United States does not permit, tolerate, or condone torture under any circumstances.

Moreover, in accordance with the policy of this administration:
— The United States has respected — and will continue to respect — the sovereignty of other countries.
— The United States does not transport, and has not transported, detainees from one country to another for the purpose of interrogation using torture.
— The United States does not use the airspace or the airports of any country for the purpose of transporting a detainee to a country where he or she will be tortured.
— The United States has not transported anyone, and will not transport anyone, to a country when we believe he will be tortured. Where appropriate, the United States seeks assurances that transferred persons will not be tortured.

Of course, many folks may not believe her. (UPDATE:The relentless Marty Lederman, for instance, offers reasons to doubt her meaning here). But it means something when the U.S. Secretary of State goes on the record like this. It means that if there is bad stuff going on in the rendition process, and it becomes public, she and the administration will be in a bad position. But it also means that if this statement is accurate, then there is a huge uproar about renditions that is essentially about nothing.

Niall Ferguson on Islamo-Bolshevism

by Roger Alford

In this month’s issue of Foreign Affairs, Niall Ferguson — one of the best gifts Glasgow has bestowed upon the world in recent times — has an interesting article entitled Sinking Globalization. Essentially the article presents a possible doomsday scenario that draws parallels between the perils of today and those of the 1910s. One aspect of his thesis that is particularly chilling is his comparison between Osama bin Laden and Vladimir Lenin:
It is a big mistake to think of al Qaeda as “Islamo-fascist” … Al Qaeda’s members are much more like “Islamo-Bolshevists,” committed to revolution and a reordering of the world along anti-capitalist lines.
Like the Bolsheviks in 1914, these Islamist extremists are part of an underground sect, struggling to land more than the occasional big punch on the enemy. But what if they were to get control of a wealthy state, the way Lenin, Trotsky, and company did in 1917? How would the world look if there were an October Revolution in Saudi Arabia? True, some recent survey data suggest that ordinary Saudis are relatively moderate people by the standards of the Arab world. And high oil prices mean more shopping and fewer disgruntled youths. On the other hand, after what happened in Tehran in 1979, no one can rule out a second Islamist revolution. The Saudi royal family does not look like the kind of regime that will still be in business ten years from now. The only monarchies that survive in modern times are those that give power away.
But is Osama bin Laden really a modern-day Lenin? The comparison is less far-fetched than it seems…. In a proclamation to the world before the recent U.S. presidential election, bin Laden declared that his “policy [was] bleeding America to the point of bankruptcy.” As he explained, “al Qaeda spent $500,000 on the [September 11 attacks], while America, in the incident and its aftermath, lost–according to the lowest estimate–more than $500 billion. Meaning that every dollar of al Qaeda defeated a million dollars, by the permission of Allah.” Bin Laden went on to talk about the U.S. “economic deficit … estimated to total more than a trillion dollars” and to make a somewhat uncharacteristic joke:
‘[T]hose who say that al Qaeda has won against the administration in the White House or that the administration has lost in this war have not been precise, because when one scrutinizes the results, one cannot say that al Qaeda is the sole factor in achieving those spectacular gains. Rather, the policy of the White House that demands the opening of war fronts to keep busy their various corporations–whether they be working in the field of arms or oil or reconstruction–has helped al Qaeda to achieve these enormous results.’
Two things are noteworthy about bin Laden’s quip: one, the classically Marxist assertion that the war in Iraq was motivated by capitalist economic interests; and two, the rather shrewd–and unfortunately accurate–argument that bin Laden has been getting help in “bleeding America to the point of bankruptcy” from the Bush administration’s fiscal policy.
Much as I respect Ferguson, I just don’t buy it. First, I seriously doubt Saudi Arabia is at risk of an Islamic Revolution akin to 1979 or an October Revolution akin to 1917. More likely it will succumb to a democratic transition akin to the Velvet Revolution of 1989, with the Muslim Brotherhood showing alarming strength.
Second, I seriously doubt the world will sit idly by and simply watch as Osama bin Laden rides into power in Riyadh on a donkey. Indeed, there is one person on earth that personifies evil incarnate in the American psyche. It is foolhardy to think the world will countenance a scenario with bin Laden in a position of Saudi leadership. Certain men rise to power and then display the full extent of their evil intentions. But it is another matter altogether to display to the world evil in full flower and then later have any hope of national leadership.
Third, I seriously question the use of anti-capitalist Bolshevik rhetoric to describe Islamic terrorism. Yes, al Qaeda is more than willing to use economic warfare to battle the United States. But that terrorist organization is far from being grounded on any economic thesis or capitalist antithesis. An Islamic restoration movement? Yes. An anti-Zionist movement and anti-American movement? Yes. But a genuine anti-capitalist movement one day led by a religious leader at the helm of a country that is the world’s largest net oil exporter? No.
Fourth, I seriously question the proposition that the United States is on the verge of bankruptcy as a result of Osama bin Laden. Peruse this recent speech by Alan Greenspan on budget policy and one is left with three impressions: (1) The economy has delivered a solid performance in 2005; (2) defense and homeland security spending will not continue at current levels; and (3) long-term budget problems in the future are a function of changing demographics. The one great economic risk of terrorism, Greenspan has highlighted elsewhere, is that we take it too seriously and let it result in a change in our economic behavior. I am surprised Ferguson falls for bin Laden’s specious argument that al Qaeda is bleeding America to the point of bankruptcy.

The CIA’s War On Terrorism – Another Source of ATS Lawsuits?

by Julian Ku

As the fighting over the U.S. military’s conduct of the war on terrorism, particularly its conduct in Guantanamo Bay, may be heading toward some resolution as a result of new legislation, attention is now turning to the CIA’s activities in the war on terrorism.

The CIA certainly seems busy. Recently, an alleged Al Qaeda leader was mysteriously blown up in Pakistan, perhaps as a result of a CIA missile from an unmanned Predator aircraft. Meanwhile, the Washington Post has this long report on the CIA’s system of “extraordinary rendition” and its alleged network of detention centers for suspected Al Qaeda members. The Post has also has this report on the CIA’s alleged abduction of a radical Islamic cleric in Italy (misleading Italian authorities in the process). Moreover, Secretary Rice is being hounded in Europe with questions about CIA use of German airfields for its rendition policy and its “secret” prisons.

Intelligence activities are not, as far as I’m aware, generally regulated under formal international law e.g. through some international treaty. Of course, certain – in fact, many- activities engaged in by intelligence agencies plainly violate general principles of international law. Taking satellite photos, intercepting wireless communications, and old-fashioned human spying often violate another country’s sovereignty. More seriously, intelligence agencies sometimes engage in targeted assassinations, abductions, and very severe interrogation techniques (tantamount to torture).

In the old days, the most important check on intelligence agencies like the CIA (other than domestic oversight) was the threat of retribution against their own agents from the other side. The CIA and KGB had a tacit agreement not to kill or torture agents they caught from the other side. I somehow doubt the CIA has any similar deal with Al Qaeda – as a result, all gloves are off.

But the rise of the Alien Tort Statute opens another avenue for checking the CIA. Those mistreated by the CIA can have their day in U.S. court and, for what is probably the first time, we may see CIA policies directly challenged under international law standards. For better or for worse, I foresee the CIA becoming the new defendant du jour in the ongoing litigation over the conduct of the war on terrorism.

Differing Conceptions of Justice

by Seth Weinberger

Hello! First, thanks to Julian and the rest of the Opinio Juris team for inviting me to guest blog here for a while. I’m very excited to represent the IR perspective, and hope that I can bring something interesting to the table.

I’d like to start off by addressing one of the more interesting and relevant questions: How is justice conceptualized in international politics and law? Waking up this morning, I’m greeted in the morning news by pictures of Saddam Hussein sitting in the dock. This amazing sight raises the question (or at least it does for me) as to what the purpose of the trial should be. At first glance, the question seems to have an easy answer: to provide justice. But that begs the question: What is justice? There are always different formulations of justice working simultaneously in any trial, and while these formulations may sometimes coincide, they do not always. For instance, procedural justice (the right to a fair trial, the right to be free from unwarranted search and seizure, etc.) can obviate the demands of retributive justice (vengence, punishment, etc.). Now, in a domestic society, where the risks any one person poses to the society as a whole are low, procedural justice tends to dominate. That is, when the established procedure is violated, a person goes free, even when it is clear that person may be guily and deserving of punishment (and no, I didn’t say O.J.).

Which conception of justice should “win” out in Iraq? Should Hussein be given a fair trial at all costs, to demonstrate the superiority of the rule of law? Such an approach could go a long way to establishing the legitimacy of the Iraqi regime, and perhaps even to placating the Sunni part of the insurgency. However, if anyone can be judged guilty without trial, it must be Hussein. Would allowing him to walk free because a sufficient evidentiary chain linking him directly to massacres and genocide could not be established be “just?” Would it undermine the faith of the Shiites and Kurds that a government can protect them against a Baathist resurgence? Executuing Hussein (the likely outcome) will likely be a critical step in creating an emotional release valve that makes it possible for the Shiites and Kurds to move forward and permit the Sunnis to participate in the New Iraq.

The approach of the international community writ large seems to prefer the emphasis on procedural justice. I’m thinking not only of the pressure placed on Iraq to move the trial out of Iraq and perhaps even into an international tribunal, but also of the trial of Slobodan Milosevic. In its attempt to provide Milosevic with a fair trial, the ICTY has now dragged on for several years, and the end does not appear to be in sight (as Julian has previously pointed out). Many IR scholars believe that the odds are decent that Milosevic will walk, mainly because of the difficulty in proving the chain of command linking his orders directly to genocidal behavior or war crimes.

Is this really in the best interests of the international community, let alone the Iraqi people? I’m not so sure, and I don’t know what the answer to this problem should be. However, it is clear that sometimes “justice” gets in the way of politics. Should Pinochet go on trial if it makes it less likely that future dictators will accept immunity agreements to step down and allow a democratic tradition? As for Hussein (and Milosevic as well), my sense is that is more important for Iraq, and for the international community, that he be punished for his crimes than he be provided procedural justice.

"Why Don’t You Just Execute Us?"

by Roger Alford

An excerpt of a motion challenging the legitimacy of the tribunal is here:

“The Defense considers it their duty to point out at this juncture another peculiarity of this Trial which departs from the commonly recognized principles of modern jurisprudence. The Judges have been appointed exclusively by States which were the one party in this war. This one party to the proceeding is all in one: creator of the statute of the Tribunal and of the rules of law, prosecutor and judge. It used to be until now the common legal conception that this should not be so; just as the United States of America, … always demanded that neutrals, or neutrals and representatives of all parties, should be called to the Bench….”

But this motion was not filed by defense counsel for Saddam Hussein. No, this motion was filed in November 1945 by defense counsel near the beginning of the Nuremberg trial challenging the legitimacy of that tribunal.

Today, Saddam Hussein is trying the same approach. Here is a brief excerpt of the exchange at Hussein’s trial today:

Judge: ”Mr. Khalil, if you are going to leave the room, it will harm your client. The court will be obliged to appoint lawyers from the defense bureau.”

Saddam: ”The court is allowing the witness to speak, but it does not allow the defense lawyers to defend. Is this the justice?”

Judge: ”You will be heard.”

Al-Dulaimi: ”We will not stop until we receive the full answer to the question we are concerned with.”

Judge: ”We will give you enough time, regarding the refutation of the legitimacy of this court. This court is legitimate, legal and formed according to a law issued by the National Assembly.”

Saddam: ”Under the American occupation!”

Judge: ”No, and you are not allowed to speak.’

Saddam: ”How is it legitimate while it is the Americans who formed it?”

Al-Dulaimi: ”We will make presentations to you and refute the legitimacy of this court — that was based on the unjust U.S. aggression — verbally and then in writing.”

Then, after the judge called a recess, Saddam Hussein shouted, “Why don’t you just execute us?”

The tactic of challenging the legitimacy of the Nuremberg tribunal didn’t work in 1945. Hopefully it won’t work in calling into question the legitimacy of the Hussein trial in 2005.

Bringing Political Science to Opinio Juris: Introducing Guest-Blogger Seth Weinberger

by Julian Ku

Although those of us who blog here on a permanent basis come from a variety of perspectives, all of us are legal academics and no doubt our posts reflect the thinking of international lawyers.

But there are other ways of looking at international relations, of course, especially from the discipline of political science. That is why we at Opinio Juris are very pleased to have Professor Seth Weinberger, a scholar of international relations, as a guest blogger for the next few weeks. Professor Weinberger teaches courses on international relations, US foreign policy, international security, terrorism, and political philosophy at the University of Puget Sound. His most recent n article is entitled “Institutional Signaling and the Origins of the Cold War” in the journal Security Studies (Summer 2003). His current research focuses on the signaling applications of international legal negotiations. Before getting his doctorate in political science from Duke University, he worked for the Strategic Assessment Center of Science Applications International Corporation as a Defense Analyst, where he designed strategic war games and workshops on issues such as the proliferation of nuclear weapons, the future of the Air Force, robotics, and biotechnology.

Between Duncan and Seth, we are very lucky to have such accomplished guest-bloggers over the next few weeks. Welcome!

ATS Lawsuit Against Haitian Colonel Goes Forward

by Roger Alford

Last week the 11th Circuit issued a decision in Jean v. Dorelien, available here, authorizing the plaintiffs ATS and TVPA lawsuit against the Haitian Colonel Carl Dorélien to go forward. In 1993, Dorélien allegedly subjected the plaintiffs relative, Michel Pierre, to torture, arbitrary detention, and cruel, inhuman and degrading treatment. The 11th Circuit reversed the dismissal of the lawsuit by the district court.

The case is important for two reasons. First, it reaffirmed the equitable tolling of the statute of limitations in cases involving grave human rights abuses. “Congress acknowledged that plaintiffs face unique impediments such as reprisals from death squads and immunity of high-ranking government officials in bringing human rights litigation. Litigation will often not be possible until there has been a regime change in the plaintiff’s country of origin, after which the plaintiff can investigate and compile evidence without fear of reprisals against him, his family and witnesses… The pattern and practice of torture, mass murder, intimidation and reprisals against perceived opponents of the government during the military regime in Haiti from 1991 to 1994 as alleged in [the] complaint clearly qualify as extraordinary circumstances….”

Second, it ruled that the plaintiffs were not required to exhaust available remedies in Haiti. It declined to apply the exhaustion of remedies requirement for ATS claims. As for their TVPA claims, the court found that defendants had not satisfied their burden of showing that plaintiffs had not exhausted available remedies under the TVPA. The facts are complicated because in November 2000 a Haitian tribunal found Dorélien responsible for the massacre the led to Pierre’s death, but that since that time Dorélien has been freed from prison and returned to power. As such, this Haitian judgment is currently ineffective and unenforceable in Haiti.

In a bizarre twist in the story, this particular defendant is anything but judgment proof. While living in the United States in 1997 Dorélien won over $3.2 million in the Florida lottery. Part of this ATS litigation involves attempts by the plaintiffs to prevent Dorélien from shielding these assets from future attachment. A Florida state court has blocked the transfer of over $1 million of Dorélien’s assets. Dorélien attempted to assign to a third party, LSC, his right to 13 additional payments of $159,000 in exchange for one-time payment of $1.3 million. Part of the plaintiffs’ claim is that that transfer was fraudulent and a violation of state laws on the fradulent transfer of assets.
What is not clear is why the plaintiffs are still pursuing their ATS and TVPA claim given that, according to this report, the Haitian judgment has been enforced in the United States as a foreign money judgment and the plaintiffs are seeking to garnish Dorélien’s assets pursuant to that judgment.

International Relations Via The Onion

by Roger Alford

Lots of breaking international news over at The Onion. As reported here, a group named the Army of Martyrs has acquired a quarter kilogram of plutonium, but then its terrorist efforts were thwarted after they discovered that not a single member of the group had the necessary physics and engineering background to construct a thermonuclear device. In addition, in this piece the nation of Snakistan reportedly has broken off relations with Fritolaysia after the latter signed a fat-free trade agreement with the Yogurtslavian nation of Colombo. Next, there is a disturbing report of the CIA’s use of black markers to conceal its activities. Finally, in this report on today in history, Sadat and Begin celebrate their 1979 Middle East peace accord at Studio 54 in New York.

Litigation Trends in the U.S. and U.K.

by Roger Alford

I figured Saturday morning would be a good time to publish a post specifically targeted at all those seriously overworked and slightly bored lawyers in law firms who simply must work this weekend. As Opinionista (the Law Firm Drone du jour) notes in her blogroll, this group is always in need of a few links to click when bored at work. For the rest of us, hopefully we will be ignoring our computers, taking the weekend off, and doing something really important like watching to see if Reggie Bush will clinch the Heisman Trophy as the USC Trojans battle the UCLA Bruins. (I obviously have put more strategic thought into the random Google-rich words in this post than Fiona de Londras did here over at Mental Meanderings).
So what better subject to target weekend warriors in big firms than … trendy info about life in law firms. Seriously, the folks at Fulbright & Jaworski have just published what is actually quite an interesting survey of litigation trends in the United States and the United Kingdom. The U.S. findings are available here and a short summary is available here. The U.K. findings are available here and a short summary available here.
The shiny glossies are quite impressive, and the facts inside them are somewhat surprising. As reported in this article, some of the findings of the U.S. survey include:
Domestic and International Arbitration Preferences – Arbitration has been keeping lawyers busy at $1 billion-plus companies this year: over 50% of such respondents reported having arbitrations initiated against their companies in the past year; 18% reported being on the receiving end of least four to 10 new arbitrations. By contrast, only 4% of small companies had four to 10 arbitrations initiated against them during the last year. And while no companies in the small- or mid-market range reported having 100 new arbitrations, 3% of the $1 billion-plus group did. When it comes to drafting international arbitration clauses, American lawyers have a clear preference for AAA/ICDR; two thirds identified that as their tribunal of choice. The second most popular (selected by less than a third) was the International Chamber of Commerce. Roughly 10% each said they prefer the London Court (LCIA) and the CPR Institute. Respondents gave an overwhelming thumbs-up to administered arbitration over non-administered arbitration, with more than half reporting that they liked the process and the rules better and are more “familiar with that type.” Paris may be lovely, but American corporate counsel are not particularly anxious to arbitrate there, citing convenience and cost; far and away the favored spot for Americans to arbitrate international disputes is New York. Close to 30% of U.S. respondents believe they have realized “some savings” from international arbitrations, with a small percentage achieving “large savings.” No companies reported large cost increases from arbitrating international disputes, although 4% reported that their company had experienced some cost increases.
Litigation Dockets – Eighty-seven percent of U.S. companies are engaged in some form of litigation in the U.S. Twenty percent had one to three cases pending, nearly a quarter had between four and 10 cases pending, and another quarter of respondents had up to 50 cases pending. That still left a full 20% facing an average caseload of 50 to 100 litigation matters. Given how much of an equalizer litigation is – hitting all companies regardless of size, industry or regional differences – it seems remarkable that as much as 13% of U.S. companies surveyed managed to avoid business disputes. Companies most likely to be litigation-free: those with revenues under $100 million. However, 12% of $1 billion-plus companies also reported that they are free of litigation, which may be one of the survey’s biggest surprises.
Litigation as a Percentage of Overall Legal Spending – Litigation is not eating up all of the legal costs in corporate America, though it is a significant chunk. Among counsel who track litigation costs, about a quarter said that they account for 21 to 50% of their legal budgets; an additional 12% reported that litigation expenses accounted for more than 50% of the total legal budget. Broken out by size, counsel for 15% of mid-market companies and 16% of businesses in the $1 billion-plus range reported that litigation consumes over half of their legal budgets. For companies with revenues under $100 million, that figure dropped dramatically to only 8%. Translated into the bottom line, nearly a quarter of U.S. companies are spending 2% or more of their gross revenues on legal fees; 10% of them spend more than 5%.
Top Current Litigation Matters – Despite the dramatic headlines about corporate corruption, the top two slots on the in-house litigation docket are contracts claims and labor/employment matters. For mid-market and $1 billion-plus companies, these types of actions accounted for as much as half of their litigation matters. For smaller companies, contract disputes account for more than a quarter of their caseload. Following contracts and labor/employment actions, the third most frequent type of case filling corporate America’s litigation plate is personal injury actions. Rounding out the top five – product liability and IP disputes. A snapshot of each sector reveals more of a spread: the most frequent type of case pending against health care companies was professional services litigation, whereas insurance litigation topped the list for insurance companies. For manufacturers, product liability cases were most commonly pending, while real estate companies face personal injury lawsuits. The most common cases for other industries were: energy and finance (contracts); tech/comm (labor/employment); and retail/wholesale (split equally between contracts and labor/employment).
Class Conscious – The bigger the company, the more likely it is to end up at the receiving end of a class action. While only 5% of smaller companies were targeted with class actions in the past year, nearly 40% of companies with revenues of $1 billion or more were served with class action lawsuits. Manufacturers were the most likely to be named as defendants in class actions; almost a quarter of them had at least one such action pending. Energy, finance and tech/comm companies were the next most likely to have at least one class action filed against them last year, although real estate companies were most likely to have been hit with more than three such actions.
What Litigation Concerns Are On the Horizon? – Reflecting the types of cases in-house counsel currently face, contract and labor/employment actions topped the list of matters that U.S. counsel were most concerned about for the future. Number three was IP disputes, followed by class actions. For counsel at $1 billion-plus companies, however, class actions rose to the number two spot, over concerns about contract-based litigation. Technology companies are far more focused on IP/patent issues then any other industry, whereas real estate and energy companies are understandably more concerned than other sectors about environmental/toxic tort litigation. Professional services litigation naturally was the leading concern for health care companies, but not for others, while insurance litigation was of principal concern only for those in the insurance industry. Only the financial and real estate industries had serious concerns about securities litigation/enforcement in the future.
Read the whole thing. Well, actually, don’t.

ACLU Sues the CIA, Challenges "Extraordinary Rendition"

by Julian Ku

The ACLU will be suing the C.I.A. (at least according to this BBC Report) alleging C.I.A. officials broke U.S. and international law “when they authorised agents to abduct an innocent man, detain him in incommunicado, beat him, drug and transport him to a secret CIA prison in Afghanistan. . .” The BBC refers to a press release, but I can’t find it on the ACLU website yet nor a copy of the complaint. I assume at least part of the claim will be brought under the Alien Tort Statute alleging violation of customary international law, but I’ll have to wait and see.

I’ve called this and other lawsuits challenging the U.S. government’s conduct in the war on terrorism the “Third Wave” of Alien Tort Statute lawsuits (see here for my essay). The first wave was against foreigners, the second was against corporations, and the third is increasingly against the U.S. government itself. Each lawsuit may have merits in their own right, but I have to believe that these third wave lawsuits will ultimately lead to the eventual elimination of the ATS in its current form.

Is Life Imprisonment an "Unusual" Punishment?

by Duncan Hollis

For the last several years Mexico had certainly thought so. But on Tuesday, Mexico’s Supreme Court decided to lift a ban on extradition of persons who would be subject to life imprisonment, reversing an earlier 2001 decision that had found such extraditions violated the prohibition on “unusual penalties” in Article 22 of the Mexican Constitution. As a result of the 2001 decision, hundreds, if not thousands of fugitives had been able to avoid extradition because U.S. prosecutors could not give assurances that life imprisonment was off the table or were unwilling to press lesser charges that did not involve such a penalty. I find the Court’s decision to reverse its earlier ban interesting for international lawyers on no less than three levels.

First, it opens the door to resolving a nascent treaty dispute over whether Mexico could deny extradition of U.S. nationals on the basis of the potential life imprisonment sentence to be imposed. Under Article 1 of the 1978 U.S.-Mexico Extradition Treaty, Mexico agreed to extradite to the United States persons charged with 31 named offenses (e.g., murder, robbery, fraud) which are punishable by not less than one year in prison. Article 8 makes an exception, however, for capital punishment cases, such that Mexico would not have to extradite someone who would be subject to capital punishment, unless it receives assurances from the United States that the death penalty would not be imposed, or, if imposed, not executed. Those assurances, however, by their terms only extend to capital punishment cases, not life imprisonment. Separately, under Article 9, Mexico does not have to extradite its own nationals, provided it submits their case to its competent authorities for purposes of prosecution. Thus, even though Mexico could argue the treaty allowed it to decline extradition of its own nationals whether or not life imprisonment was at issue, it did not seem to have a textual claim for doing so for non-Mexican nationals, even if its Constitution required such a result. The Court’s recent decision, however, removes this problem and should ensure Mexico can more fully comply with the treaty.

Second, the fact that for four years Mexico did not extradite persons who faced possible life imprisonment, reminds us that the United States is not the only state to take a dualist stance on the relationship between international and domestic law. In the United States, the Supreme Court has made it clear that treaties cannot contradict the Constitution. Mexico’s treatment of the life imprisonment question suggests it takes a similar approach. Even though the Extradition treaty required Mexico to extradite non-nationals for life imprisonment offenses, such extraditions did not take place given the finding of a constitutional prohibition.

Finally, the decision could also suggest an easing of tensions in the longstanding dispute over the legality of various U.S. law enforcement activities vis-à-vis Mexico and Mexican nationals. Mexico’s earlier objections have been well publicized, from its outrage over the U.S. abduction of Dr. Alverez-Machain to its more recent efforts in the Avena case and elsewhere to obtain new trails for Mexican nationals on death row who had not received consular notification under Article 36 of the Vienna Convention on Consular Relations. Combined with President Bush’s earlier decision on the Avena case, Tuesday’s court decision suggests that conditions may now be more favorable to greater law enforcement cooperation between U.S. and Mexican officials.

I would be interested in whether readers have alternative perspectives on this issue as well as the underlying “why” question – why did the Court change its opinion after only 4 years? Was it influenced by the fact that its prior interpretation had put Mexico in breach of at least some of its treaty obligations? Could the reluctant shift in the U.S. position on consular notification and the death penalty have influenced the Mexican Supreme Court to soften its own stance? Or, could the court be responding to different pressures, namely the recently enacted State Department Appropriations Bill, P.L. 109-102. Section 583 of that Act prohibits (subject to waiver) certain financial assistance to any “country with which the United States has an extradition treaty and which government has notified the Department of State of its refusal to extradite to the United States any individual indicted for a criminal offense for which the maximum penalty is life imprisonment without the possibility of parole.” Congress clearly had Mexico in mind when it passed that law. So, I wonder how much Mexico’s Supreme Court had that bill in mind when it decided that life imprisonment isn’t such an “unusual” punishment after all.

International Law in the South Africa Gay Marriage Case

by Roger Alford

In Minister of Home Affairs v. Fourie the Constitutional Court of South Africa yesterday recognized the marriage of two women and gave the Parliament one year to extend legal marital rights to all same-sex couples. A copy of the opinion is here.

Just a quick thought on one aspect of the Court decision, namely its methodology in relying on international law. If you are at all interested in the issue of constitutional comparativism, you really should read the entire international law section of the opinion (paras. 99-105) and the one passing reference I could find to comparative experiences. (para. 127, n. 119). International law was one of the four main arguments articulated for refusing to extend the right of marriage to gays and lesbians. (para. 84).

It should be emphasized that constitutional comparativism is not in the least suspect in the South African context. The key difference between the South African Constitution and the U.S. Constitution is that the former has a specific provision (Section 39) stipulating that “[w]hen interpreting the Bill of Rights, a court … must consider international law.” (See para. 99 discussing Sections 39 and 232). Thus, reference to international law in constitutional decision-making in South Africa is not only recommended, it is textually required.

At first blush what is most intriguing to this American about Fourie is its apparent facial incompatability not only with its own celebrated comparative approach in the death penalty case of Makwanyane, but also with the comparative approach urged by the U.S. Supreme Court in the recent decision in Roper v. Simmons.

In Makwanyane, the South African Constitutional Court relied extensively on international and comparative experiences to inform whether the death penalty was consititutionally suspect in that country. (paras. 33-109) The Court there argued that “The international and foreign authorities are of value because they analyse arguments for and against the death sentence and show how courts of other jurisdictions have dealt with this vexed issue. For that reason alone they require our attention.” (para. 34).

In Roper the U.S. Supreme Court concluded that there was near universal international support for abolition of juvenile capital punishment, both in state practice and international agreements. The U.S. Supreme Court seized upon this fact to conclude that the Eighth Amendment must be read consistent with this international standard of decency.

In Fourie, by contrast, only four countries in the world recognize gay marriage (Netherlands, Belgium, Spain, and Canada), and the government expressly relied upon international law to maintain that the current international law standard does not recognize homosexual marriage. That standard, the state argued, should inform whether to extend the right in South Africa.

The approach taken by the South African Constitutional Court in Fourie does not inspire confidence for the future of constitutional comparativism. Unlike in Makwanyane, the Court all but ignored comparative law and severely discounted the importance of international law. It recognized that while there is no international law support for gay marriage, neither does international law expressly prohibit it. “[W]hile it is true that international law expressly protects heterosexual marriage, it is not true that it does so in a way that necessarily excludes equal recognition being given now or in the future to the right of same-sex couples…” (para. 105). This suggests that international law is not being used as confirmation of a standard, as in Roper and Makwanyane, but simply as a floor that can be ignored as necessary.

Instead of relying on international law to articulate an international standard of decency and equality, the Court opted for a breathtakingly open-ended version of living constitutionalism, quite literally a constitution with limitless horizons: “[E]ven if the purpose of the [international] instruments was expreslly to accord protection to a certain type of family formation, this would not have implied that all other modes of establishing families should for all time lack legal protection. Indeed, rights by their nature will atrophy if they are frozen. As the conditions of humanity alter and as ideas of justice and equity evolve, so do concepts of rights take on new texture and meaning. The horizon of rights is as limitless as the hopes and expectations of humanity.” (paras. 101-02).

The Court also undescored that international law can only be used to expand rights, not contract them. “It would be a strange reading of the Constitution that utilised the principles of international human rights law to take away a guaranteed right.” (para. 104). So we should use international law to interpret the Constitution, but only if we use it as an intepretive device to grant a right, not curtail one?

In light of these excerpts, query whether you can square the comparative approach in Fourie and the comparative approach in either Makwanyane or Roper. As the former decision is still fresh off the press, I have not had the chance to think it through fully. But they do not seem particularly consistent with each other, to say the least.

As I have written elsewhere, it appears that constitutional comparativism is a one-way ratchet. Fourie certainly leaves one with that impression. If international and comparative law does not support the expansion of rights, it will be discounted. If international and comparative does support the expansion of rights it will be used as confirmation of what the Constitution requires. This gives one pause, causing many to wonder if the goal of this project really is a thorough-going methodology of international norm internalization, or a selective and results-oriented borrowing of international source material to reach a desired result. This only underscores the fears of skeptics that the constitutional comparativism game is rigged.

If you want to know the comparativists’ game plan for discounting the importance of international and comparative law when it affords less capacious protections than they would like, just take a look at Fourie.

When Pacifists Become Hostages

by Roger Alford

The story coming out of Iraq of four members of Christian Peacemaker Team being held hostage by an insurgent organization provides a new twist on hostage-taking in Iraq. There are several factors that make this situation so complicated.

First, these hostages are pacifists. CPT is founded by Mennonites and Quakers and is one of the latest incarnations of that long pacifist tradition. These hostages are prepared to die as a witness to the cause of peace. As the BBC reported, their commitment to the cause of peace is no less strong than a soldier’s commitment to the cause of war. “We are convinced they are on the wrong track as soldiers, so we are challenging ourselves and asking: ‘Do we not have as much faith and as much courage as soldiers have and are we willing to put our own lives on the line’?”

Second, they are opposed to the war in Iraq and even blame the Americans for their plight. According to the organization’s website, they “are angry because what has happened to our teammates is the result of the actions of the U.S. and U.K. governments due to the illegal attack on Iraq and the continuing occupation and oppression of its people.” This perspective seems to conflate but for with proximate causation.

Third, they do not want ransom payment or armed intervention to rescue them. According to this report, CPT “policies state that ransoms will not be paid for workers taken hostage [and] … its members … do not use armed protection in Iraq, are prepared to die for peace and would eschew the use of violence to rescue hostages.” What they want, apparently, is to make a statement. The CPT members had previously issued a “statement of conviction” expressing the hope that “in loving both friends and enemies and by intervening non-violently to aid those who are systematically oppressed, we can contribute in some small way to transforming this volatile situation.”

So what should be our response to the plight of such hostages? CPT has stated that “[o]ur experience is that violence can be disarmed with the witness to peace, truth, love and justice. The willingness to give life instead of taking life is very powerful.” I have spoken with pacifists I know well and they say that their deaths will make a profound statement for the cause of peace. But a statement to whom? The bloodthirsty radical insurgent groups bent on killing civilians? The allied forces in Iraq? The public or politicians back home?

In some respects it appears their non-violent peacemaking efforts are intended to be a modern manifestation of Martin Luther King’s nonviolent civil rights movement or Gandhi’s nonviolent revolution in India. I am quite familiar with the peacemaking movement that spawned those great successes. But the enemy here is an altogether different animal than the “enemy” in those celebrated causes. How will nonviolent protests from the likes of CPT members work in a situation like Iraq? Any clarification would be most welcome, as I just don’t see how the violent death of these hostages will have the intended effect they envision. I suspect that if the hostages are killed, it will only embitter the public against this enemy and embolden the soldiers to root out the insurgents by force. The death of these pacifists will not beget peace, but only further violence.

Prior to leaving for Iraq, one of the hostages, Norman Kember, age 74, was quoted on this video as saying “I’ve done a lot of writing and talking about peacemaking … but that is what I would call ‘cheap peacemaking.’ This is a bit more costly, or could be.” Indeed.

Fourth Circuit Slaps Government on Padilla?

by Julian Ku

SCOTUSBlog notes that the Fourth Circuit has, unusually, denied the government’s unopposed motion to transfer former enemy combatant Jose Padilla to civilian custody. Instead, it has ordered the government to brief the question of whether the Fourth Circuit should vacate its current judgment upholding Padilla’s detention as an enemy combatant in light of the new facts revealed by the government in Padilla’s civilian court indictment.

It is somewhat unclear what this means, although it probably isn’t good news for the Government’s effort to keep the Fourth Circuit panel opinion (which basically upholds the Government’s views) the law of the Fourth Circuit, thereby supporting its ability seize other enemy combatants in the future. Either way, Padilla will eventually be transferred. The only question is whether the Government will have to discard its enemy combatant theory (doubtful) or whether it will have to explain more about why it has changed Padilla’s designation.