Archive for
February, 2006

ICC Update

by Kevin Jon Heller

The following is a quick summary of the ICC’s work to date, courtesy of the International Justice Tribune:

Since its creation in July 2002, the International Criminal Court (ICC) has received 1,732 pieces of communication about crimes committed in 139 countries.

According to the second summary published by the office of the prosecutor on February 10, 60% of the information came from individuals or groups in four countries: the United States, the United Kingdom, France and Germany. 80% of the claims were found to be manifestly outside [the court’s] jurisdiction and were dismissed after initial review. The cases that received intensive analysis were categorized into 23 “situations”. Ten were chosen, six rejected and seven are still under study. Of the 10 cases selected, 3 are currently being investigated (Democratic Republic of Congo, Uganda and Sudan), 5 are being analyzed (Central African Republic, Côte-d’Ivoire, and three others that remain confidential), and 2 were dismissed (Iraq and Venezuela). The prosecutor has publicly stated his reasons for rejecting the latter two. In Iraq, the alleged war crimes were not sufficiently severe. In the case of Venezuela, he was unable to determine whether the alleged crimes against humanity had been committed “as part of a widespread or systematic attack directed against any civilian population.”

Arusha: Africa’s Hague

by Julian Ku

The new African Court of Human and People’s Rights, which was established as Africa’s new regional international court, will sit in Arusha, Tanzania. This is not exactly a surprise. The International Criminal Tribunal for Rwanda already sits there and its mandate will expire in 2008, so it makes a lot of sense to take advantage of the existing infrastructure there. International criminal justice can be a non-trivial economic engine. Arusha is well on its way to becoming The Hague South.

U.S. Will Oppose New U.N. Human Rights Council

by Julian Ku

The U.S. government has announced that it will oppose the current proposal for a new Human Rights Council to take the place of the much-derided U.N. Commission on Human Rights. (The new proposal is here.) Although the U.S. has been pushing for a new Council, it is not happy with the current proposal, which would not guarantee the exclusion of countries with serious human rights abuses.

There are a lot of complicated policy issues and Anne Bayesky is right as usual on these things. One tedious legal issue: Can the U.S. block the new Council? The answer is no, because the new Council will be a subsidiary of the General Assembly pursuant to Article 22 of the U.N. Charter. The U.S. does not have a veto and, in fact, only has five votes in the GA, just like everyone else. So expect the U.S. to go down in flames next week if this comes to a vote.

Updates: Saddam Trial, Serbia and the EU, Hijacked Planes

by Kevin Jon Heller

Following up on my earlier posts about Saddam and Serbia:

  • Prosecutors at Saddam’s trial introduced two important documents yesterday. The first is a memo from the Revolutionary Court, dated June 14, 1984, listing the names of 148 suspects that had been sentenced to death by hanging. The chief prosecutor, Jaafar al-Moussawi, said the signature on the memo was that of the court’s head, Awad al-Bandar, one of Saddam’s co-defendants. The second is a presidential order signed by Saddam approving all 148 death sentences. The sentences were passed after an “imaginary trial,” al-Moussawi told the court. “None of the defendants were brought to court. Their statements were never recorded.”
  • The European Union has given Serbia a one-month deadline to catch fugitive war criminals Ratko Mladic and Radovan Karadzic, the former President of the Serb Republic and its wartime leader. If Serbia fails to do so, the EU will suspend the next round of negotations on Serbia’s membership, which is scheduled for early April.

Also, a follow-up to Julian’s earlier post about the German court decision that prohibits shooting down a hijacked passenger plane:

  • The lower house of Russia’s parliament has passed — by a vote of 423 to 1 — a new anti-terrorism bill that authorizes the military to shoot down a hijacked passenger plane if terrorists threaten to fly into a building or populated target. The bill now goes to the upper house, where it is likely to pass, and then to President Vladimir Putin, who is expected to sign it.

Nigerian Court Orders Shell to Pay $1.5 Billion

by Kevin Jon Heller

In what could turn out to be a very important ruling, a Nigerian court in Port Harcourt has ordered Royal Dutch Shell to pay $1.5 billion for the environmental damage its oil-refining activities have caused in the southern Niger delta region. CorpWatch:

Local residents began to experience health problems soon after Shell Oil company injected a million litres of a waste into an abandoned oil well in Erovie two years ago. Many who consumed crops or drank water from swamps in the area complained of vomiting, dizziness, stomach ache and cough. Within two months 93 people had died from this mysterious illness. Independent tests by two Nigerian universities and three other laboratories, conducted in the year after the health problems emerged, indicate that the substance was toxic. All the tests confirmed poisonous concentrations of lead, zinc and mercury in the dumped substance.

“The presence of heavy metals at above acceptable limits and the unusually high concentration of ions make the substance toxic. Therefore, if these substances were to infiltrate the underground water or aquifer, it would have serious environmental and health implications,” says one of the reports.

The suit was filed by an group of local Ijaws after Shell ignored an order from the Nigerian senate to pay the money to the impoverished Ijaw community. Shell, which made a net profit in 2005 of $22.94 billion — the highest full-year profit in British corporate history — has appealed “on, among other grounds, the strength of independent expert advice, which demonstrates that there is no evidence to support the claims of the group.” The company contends that the environmental damage was caused by sabotage of its oil refineries, relieving it of legal responsibility for the damage.

Shell is clearly fighting an uphill battle. Its sabotage claim is complicated not only by the senate order and by the recent decision ordering it to pay damages, but also by an earlier federal court decision that ordered it to immediately cease gas flaring. The earlier decision, issued by a federal court in Benin City, concluded that the flaring was a “violation of fundamental rights and dignity which was guaranteed under the constitution.” Shell appealed the ruling and continued gas flaring, provoking a group of Ijaw locals suffering from severe respiratory ailments to file a second lawsuit last December.

UPDATE: Make sure to read Roger Alford’s more detailed post on the decision here.

Case of the Month: Shell v. Ijaw Aborigines of Bayelsa State

by Roger Alford

My vote for the most important international law case of the month is Shell v. Ijaw Aborigines of Bayelsa State. The Federal High Court in Port Harcourt, Nigeria rendered its $1.5 billion dollar judgment against Shell on February 24, 2006. I have searched in vain for the text of the decision and will update the post once it becomes available. If you have a copy please let me know.

According to news reports, the case arose after the Nigerian Senate approved the fine in August 2004 after it was presented to the lower House of Representatives in 2003 and reviewed by an independent legal advisory panel set up by the lower house. Judge Okechukwu Okeke ruled that since both sides had agreed to go before the National Assembly, the order was binding on both sides.

In a press release, Shell stated that it “cannot comment until it has studied it in detail. However, SPDC believes that its appeal, which it has filed this afternoon, has strong grounds as independent expert advice demonstrates that there is no evidence to support the underlying claims. SPDC remains strongly committed to dialogue with the Ijaw people and all its other stakeholders.”

The February decision follows an earlier decision by a Nigerian court on November 14, 2005 against Shell for environmental degradation. That decision is available here, together with a summary here. Included in the earlier judgment is the finding that Shell had violated the African Charter on Human and People’s Rights, including Article 24 which provides that “All peoples shall have the right to a general satisfactory environment favorable to their development.” It is an unusual example of communitarian international rights being enforced at the national level.

As reported here, the essence of that claim involved environmental degradation from gas flaring. “Gas is burned off in the Niger Delta because neither the major oil companies nor the NNPC has invested in facilities to convert the gas into commercial use. As the gas is pumped through the grid of oil pipelines that crisscross the Delta’s mangrove swamps, agricultural fields, and even villages, it is flared at various stations, sending huge plumes of flame and smoke into the sky with a constant roar 24 hours a day, seven days a week. The practice, as well as the frequent oil spills that have degraded the Delta’s fisheries, water and soil, not to mention its inhabitants’ quality of life and health, has been the subject of vigorous protests by the minority populations in the Delta, beginning in the middle of the last century when Nigeria was still a British colony.”

The claims of the Ijaw people were supported by environmental groups, particularly the Friends of the Earth and the Environmental Rights Action. A detailed report on these groups allegations against Shell is available here.

I have often wondered why claimants pursue human rights and environmental claims in the United States under the Alien Tort Statute if there are viable alternatives in the home forum. Without knowledge as to the quality of justice in Nigeria I do not presume that these courts necessarily provide an adequate alternative to pursue such claims (or guarantee due process for defendant corporations). But it is a significant development that a penalty of this magnitude has been imposed by a Nigerian court. One wonders if it may portend a new wave of human rights and environmental claims in non-traditional fora.

UPDATE: Kevin Jon Heller’s near simultaneous post on the Nigerian judgment is here.

Conference on Federalism and Sovereignty at St. John’s Law School

by Chris Borgen

This Friday, March 3, 2006, St. John’s Law School will host a conference entitled Federalism Past, Federalism Future: A Constitutional Law Symposium. The full brochure is available here and the symposium papers will be published this spring in a 20th anniversary issue of the St. John’s Journal of Legal Commentary.

The Conference will have well-known Constitutional Law luminaries, such as Akhil Amar, Michael Dorf, and William VanAlstyne, but what may be of greatest interest to Opinio Juris readers will be a paper presented by (lesser-known but no less great) ConLaw scholar Tim Zick, one of my colleagues at St. John’s. Over a series of papers, Tim has been working at “unpacking” the concept of sovereignty, particularly in how we conceive of the sovereignty of states of the U.S. by analogy to the sovereignty of countries and also to individual rights (a recent article, entitled Are the States Sovereign?, is available here). He will present a paper at the conference entitled Active Sovereignty that will consider, among other things, the law and practice of states of the U.S. undertaking foreign relations.

It should be a very interesting day and I hope to see many of you there.

Federalism Past, Federalism Future:
A Constitutional Law Symposium

Friday, March 3, 2006

St. John’s University School of Law
8000 Utopia Parkway
Queens, NY 11439

9:30 Registration/breakfast reception

10:00 Opening Remarks

Mary C. Daly
Dean & John V. Brennan Chair of Law and Ethics, St. John’s University School of Law

10:05 Opening Lecture

“Federalism Over the Centuries: The State Constitutional Backdrop of the Federal Constitution”
Akhil Reed Amar
Southmayd Professor of Law, Yale Law School

10:30 Book Signing

America’s Constitution: A Biography (Random House, 2005)
Akhil Reed Amar

10:50 Panel I: Federalism Past: The Current State of the “Revolution”

“Facts on the Ground and Federalism in the Air:
The Solicitor General’s Effort to Defend Federal Statutes During the Federalism Revival”

Barbara D. Underwood
Counsel to the United States Attorney, Eastern District of New York;
formerly both Principal Deputy Solicitor General of the United States and Acting Solicitor General of the United States

“Was the Recent Federalism Revival Really About the States?”
Preeta D. Bansal
Partner, Skadden, Arps, Slate, Meagher & Flom, LLP;
former Solicitor General of the State of New York

“On Winning Wars Without Fighting Battles: Rethinking the Supreme Court’s Federalism Revival”
Neal Devins
Goodrich Professor of Law, Professor of Government &
Director, Institute of Bill of Rights Law, College of William & Mary, Marshall-Wythe School of Law

“The ‘Federalism Five’ as Supreme Court Nominees: Where Was the Federalism?”
John Q. Barrett
Professor, St. John’s University School of Law &
Elizabeth S. Lenna Fellow, Robert H. Jackson Center

12:15 Lunch

“A Journalist’s Take on the Supreme Court”

Jeffrey Toobin
Staff Writer, The New Yorker; Senior Legal Analyst, CNN

1:30 Panel II: Federalism Future: the prospects for future revolutions

“Whose Ox Is Being Gored? When Attitudinalism Meets Federalism”
Michael C. Dorf
Michael I. Sovern Professor of Law, Columbia Law School

“Stop Federalism Before It Kills Again: Reflections on Hurricane Katrina”
Stephen M. Griffin
Rutledge C. Clement, Jr. Professor in Constitutional Law, Tulane Law School

“A Brief Memorial Tribute to the Short-Lived Revival of Federalism Review in the Supreme Court”
William W. Van Alstyne
Lee Professor of Law, College of William & Mary, Marshall-Wythe School of Law

“Active Sovereignty”
Timothy Zick
Associate Professor, St. John’s University School of Law

3:10 Closing Reception

Delegating Sovereignty Conference at Duke Law School

by Julian Ku

Professor Curtis Bradley has put together a terrific conference at Duke Law School this week on Delegating Sovereignty. The presenters are leading law school and political science scholars. This is a topic that pops up in many contexts, including my own personal obsession with the ICJ (see my articles on the subject here and here) but also in many other contexts.

Free Trade Marches Southward to Colombia

by Julian Ku

The U.S. and Colombian governments have announced they have reached a bilateral free trade agreement. The USTR’s announcement can be found here and a pdf summary of the agreement can be found here.

As the NYT points out, a U.S-Colombia Free Trade Agreement will be the largest U.S. free trade agreement in the Western Hemisphere south of Mexico. Moreover, with recently concluded agreements with Peru and earlier agreements with Chile, the U.S. is tantalizingly close to a new regional free trade agreement (assuming Ecuador can be pulled on board in the next few months, Bolivia is a hopeless case for now). As a geographic matter, a partial Free Trade of the Americas is coming into existence. The U.S. will have free trade deals stretching south through Mexico, Central America, Colombia, Ecuador, Peru and on to Chile.

The agreement is also interesting in its development of international dispute resolution mechanisms. Although the details have not been released, the summary suggests there will be an investment protection arbitration mechanism, probably modeled on NAFTA Chapter 11, which allow individual investors to drag governments directly into international arbitration tribuanls. Additionally, the agreement appears to build on previous dispute settlement mechanisms by directly incorporating labor and environmental provisions into the dispute settlement system and authorizing tribunals to impose monetary penalties for violations of commercial, labor, or environmental obligations. All you budding trade lawyers out there might want to start boning up on your Spanish.

The ICJ Tackles the Bosnian Genocide (About 13 Years Later)

by Julian Ku

Today, the ICJ opened public hearings in the long-anticipated case between Bosnia and Serbia over Serbia’s alleged responsibility for genocide during the 1993-1999 Balkan wars. The ICJ has decided to make everything public and web-accessible. Hence, the opening argument of Bosnia’s counsel is already available here.

This case has a long and torturous procedural history. It was first filed in 1993, and has been the subject of intermittent litigation for over 13 years. The basis of the ICJ’s jurisdiction is Article IX of the Genocide Convention. The war is over and the International War Crimes Tribunal for the Former Yugoslavia has been prosecuting people for war crimes for over a decade now. So what is the point of this case now?

Although individuals have been held responsible, the focus of this case is state responsibility for genocide, which is a very different question. An ICJ judgment finding the government of Serbia committed genocide could have far reaching effects on long-term relations between the two states. Presumably, Bosnia and perhaps the international community could demand an apology and the payment of damages, etc. etc. So there might still be something at stake. Additionally, the ICJ might be able to provide useful and maybe authoritative interpretations of the Genocide Convention and its scope of state responsibility.

So this might be a useful and important case, certainly the most significant one the ICJ has faced in a long time. But the fact that the ICJ is considering the merits 13 years after the original fact reminds us that the role of an international court is, at best, remedial. It is almost never preventative nor can it provide much deterrence. Perhaps understanding the limits of international courts can help us appreciate the limited usefulness they have.

Report Leaked on Mexico’s "Dirty War"

by Kevin Jon Heller

A report prepared for Mexico’s President, Vicente Fox, has concluded that the Mexican government and military committed numerous crimes against humanity during its “scorched earth” campaign against alleged left-wing rebels between 1964 and 1982:

The draft report’s authors write: “The authoritarian attitude with which the Mexican state wished to control social dissent created a spiral of violence which… led it to commit crimes against humanity, including genocide.”

They say they base their findings partly on declassified military, police and interior ministry documents and list for the first time the names of officers allegedly involved in the abuses.

The report says that units detained or summarily executed men and boys in villages suspected of links to rebel leader Lucio Cabanas.

Detainees were forced to drink gasoline and tortured with beatings and electric shocks, it says.

Bodies of dozens of leftists were dumped in the Pacific Ocean during helicopter “death flights” from military bases in Acapulco and elsewhere.

President Fox established an office in 2002 to probe possible human rights violations under Presidents Diaz Ordaz (1964-70), Echeverria (1970-76) and Lopez Portillo (1976-82). The office presented the report last December to the special prosecutor investigating past abuses, Ignacio Carrillo Prieto, but he refused to release it, saying that it places too much blame on the military and understates the abuses committed by the rebels. He says a revised version will be published soon.

Human-rights groups in Mexico have criticized Carillo’s refusal to make the report public. That criticism certainly has merit, but Carillo has taken his job seriously, doggedly pursuing charges againt Echeverria for his involvement in the worst abuses of the Dirty War. Carrillo initially brought charges against Echeverria for ordering the Falcons, a paramilitary force allegedly created by his political party, to massacre students in June, 1971 — an event known as the “Corpus Christi massacre.” Those charges were thrown out by the Mexican Supreme Court, which held that the 30-year statute of limitations for the charges had expired.

Carrillo then charged Echeverria with genocide — a crime not subject to the 30-year limit — in connection with an earlier massacre of students in 1968, days before the Olympic Games opened in Mexico City. As many as 300 people might have died when government agents hidden among regular soldiers opened fire on the students. A judge dismissed the charge last September, ruling that the massacre could not amount to genocide. Carrillo has appealed the judge’s decision.

The leaked report is available at the invaluable National Security Archive, here.

FSIA and Attaching Assets of State Instrumentalities

by Roger Alford

The Supreme Court in the case of Ministry of Iran v. Elahi, rendered a rather insignificant decision last week regarding the FSIA and state instrumentalities. At issue was whether claimants could attach Iranian assets in the United States to satisfy various successful terrorism judgments. Problem was, the asset was an arbitral award in favor of the Iranian Ministry of Defense. The relevant provision at issue was Article 1610(b)(2) of the FSIA, which provides that “any property in the United States of an agency or instrumentality of a foreign state engaged in commercial activity in the United States shall not be immune from attachment.” The Ninth Circuit held that the Ministry was an agency or instrumentality within the meaning of that provision.

Iran and the United States both argued that the Ministry is not an agency or instrumentality, but rather an integral part of the state itself, and therefore the property of the Ministry is not subject to attachment under 1610(b). The Supreme Court did not agree or disagree, but sent the case back to the Ninth Circuit for clarification of that question. “[I]n implicitly concluding that the Ministry was an ‘agency or instrumentality’ of the Republic of Iran within the meaning of § 1610(b), the Ninth Circuit either mistakenly relied on a concession by respondent [Elahi] that could not possibly bind petitioner [Ministry of Defense], or else erroneously presumed that there was no relevant distinction between a foreign state and its agencies or instrumentalities for purposes of that subsection.” Of course, if the Ministry of Defense establishes that it is part of the state itself, and not an agency or instrumentality, then the terrorist victims lose their claim for attachment under 1610(b).

It is worth noting that these particular assets — monies owed to the Ministry by virtue of an arbitral award — were a rather unusual basis for attachment. Therefore many of the other grounds for attachment under Article 1610 that might typically be implicated were not. It is also worth noting that these claimants are only seeking to enforce the punitive damage component of the terrorist judgments. The compensatory component of the judgments were already paid directly by the United States, which will pursue reimbursement against Iran.

A Taliban Ambassador Matriculates at Yale

by Roger Alford

The New York Times has a very unusual human interest piece about a former Taliban ambassador who is now a student at Yale. It is an extraordinarily long piece that strives mightily to put Sayed Rahmatullah Hashemi in the best positive light as a reformed member of the Taliban.
It includes an interesting discussion of a 2001 debate Rahmatullah had with Harold Koh on “The Taliban: Pros and Cons.” Although it sounds like Koh clearly got the better of it, at one point in the debate Rahmatullah asked Koh, “Have you ever been to Afghanistan?” “No,” Koh said. “Well, if you were my only source of information about the Taliban, I’d hate them too!”
I can’t help but be unimpressed that Yale would admit such a person who held (holds?) the oppressive views of the Taliban government. Why would Yale admit such a person? Two reasons. One, a CBS correspondent named Mike Hoover had befriended him in Afghanistan and was pushing his cause. Second, apparently Yale is in competition with Harvard for such “special students” and Yale did not want to lose Rahmatullah to the competition. Imagine what the families of the many Yale alumni who perished on 9/11 would think of such a move.
Rahmatullah admits at the end of the article, “In some ways I’m the luckiest person in the world,” he says. “I could have ended up in Guantánamo Bay. Instead I ended up at Yale.”

Q & A with Abe Foxman

by Roger Alford

Great interview with Abraham Foxman of the Anti-Defamation League over at the Jerusalem Post. He discusses the Mohammad cartoons, Jewish-Christian relations, anti-Semitism, the movie Munich, and the threat of Iran. Here are a few highlights:
On Cartoons: “Humor definitely can play a useful role in exposing hypocrisy in controversial issues, particularly in getting young people to pay attention. The question is where to draw the line. Holocaust cartoons or a contest of such cartoons, in my view, clearly cross the line…. Ultimately, it still comes down to responsibility and the Holocaust is not a subject for humor. Even the movie “Life is Beautiful” which used humor, did it as a vehicle to protect the child from the reality around him rather than about the Holocaust itself.”
On anti-Semitism: “Jews today, despite the severity of the problems, are not helpless and alone the way we were in the 30s and 40s. Many factors are different which enable us to act. The existence of Israel, the self-confidence of American Jews, the important leadership role of America in the world, the very different posture of the Vatican toward Jews, the spread of Holocaust education are among the reasons that enable organizations such as ADL to believe that progress has been made and that there are powerful vehicles to combat this evil.”
On Iran: “We can’t afford not to take [Ahmadinejad] seriously. The combination of words and capability make Iran the greatest threat to the Jewish people since Hitler.”
Read the whole thing.

Grandmothers, Kiwi Gnomes, and Cocaine

by Roger Alford

On the lighter side of international law, a 52-year-old South African grandmother was arrested and charged with drug smuggling in New Zealand after Nigerians stuffed her suitcases with ceramic gnomes filled with cocaine. As reported here:

Crown prosecutor Bruce Northwood said the Crown did not deny it was a sad story but the woman must have known what she had got herself into…. [T]he woman claims her family were being threatened by a Nigerian drug lord called Peter, who wanted her daughter Lindy to work for him. She made a complaint to South African police, scared something would happen to her family. Her daughter was stopped in London in early 2004 “body packed” – carrying drugs. It was then that Martin embarked on a journey to find the man she believed was responsible for her daughter’s situation. Mr Northwood said she was dealing with drug-runners in trying to find out what happened to her daughter. Martin said in statements that she wanted to find Peter and the Nigerians had told her that if she stuck with them they would help her find him. “I just want to look him in the face and ask him if it was his child how he would have felt,” she said. Mr Northwood said the Nigerians might have been playing on her situation to get what they wanted but she must have known what was in her suitcase when she flew from South America to New Zealand bound for Brisbane. Mr Northwood said she was given false passports, stayed at a hotel where she saw women swallowing things and saying they were “testing their tummies”. Her suitcase was changed by Nigerians and it became much heavier. The woman said the only thing the Nigerians had told her was there was something in the suitcase and she was expected to find it when she got to New Zealand. It was part of her “training”. “There is a clear probability that she knew this was a drug-running outfit and what she was getting into,” Mr Northwood said. “The accused is no fool. She knew the world she was stepping into for whatever reason.”

I guess the book about grandmothers is correct. Grandmothers really are like snowflakes. No two are alike.

Fox News’ Insightful Analysis of the Situation in Iraq

by Kevin Jon Heller

Are International Criminal Tribunals a Waste of Money?

by Julian Ku

The journal Foreign Policy has an interesting post on the cost of international criminal tribunals. I have to admit I had no idea they were so expensive. According to the article, “As of November 2005, the International Criminal Tribunal for Rwanda (ICTR) had handed down judgments for only 25 individuals. More than $1 billion has been spent on the tribunal so far, or about $40 million per judgment.” For all my complaining about the ICJ’s slowness, at least they aren’t profligate with the relatively little money they do have.

You might say that ensuring punishment and the end to impunity is worth the $1 billion, but there is some point when even the end to impunity isn’t worth it. Or, more accurately, justice is not actually being achieved if the cost is so high. There are cheaper alternatives, by the way. Rwanda could itself punish the perpetrators or, as the ICTR has started to do, the ICTR could outsource to other countries (as it has started doing)

Seth Weinberger at “Security Dilemmas” weighs in with more typically intelligent analysis here.

Customary International Law After Sosa

by William S. Dodge

Another of the panels at the American Enterprise Institute conference last Tuesday dealt with customary international after Sosa v. Alvarez-Machain. The panel consisted of Julian Ku, David Moore, Beth Stephens, and myself, moderated by Jack Goldsmith.

Not surprisingly, the panelists had different views.Julian Ku advanced an argument that the President should exercise control over customary international law, in part because customary international law is based on state practice and because it is generally the executive who acts for the United States in establishing that practice. He suggested a rule of deference—perhaps even absolute deference—to the President’s interpretations of customary international law. One problem with this position, as Beth Stephens pointed out, is that it does not accord with what the Supreme Court actually did in Sosa. In the end, the Court agreed with the Bush Administration that brief arbitrary detentions do not violate any well-established norm of customary international law, but the Court engaged in its own analysis and showed no deference to the executive. There are at least two other objections. First, from an originalist point of view, the President had very little role to play in establishing the law of nations at the time of the Founding because that law rested on natural law rules deducible by courts rather than on state practice. Second, from a modern point of view, it is not only the practice of the United States that establishes customary international law, and unless the United States is a persistent objector during the creation of a new international law norm it will be bound by such a norm even if the President doesn’t like it.

David Moore, on the other hand, read Sosa as giving control over customary international law not to the executive but to Congress. Of course Congress has constitutional authority to “define and punish” offenses against the law of nations and is presumed also to be able to violate customary international law under the last-in-time rule. But Moore’s argument went beyond this, suggesting that the Sosa Court’s focus on congressional intent means that such intent should determine the extent to which customary international law is incorporated into the U.S. legal system more generally. Moore’s argument is original and provocative but in my view it misreads Sosa. First, it resurrects in somewhat different form the argument that the Supreme Court expressly rejected in Sosa—that Congress must expressly incorporate customary international law before courts may apply it. Second, it places too much reliance on the Sosa Court’s discussion of intent. In a case involving the interpretation of a statute, like the Alien Tort Statute, a focus on congressional intent is perfectly appropriate. That does not mean, however, that congressional intent has anything to say about the place of customary international law in the constitutional structure—its place under Article II’s take care clause, Article III’s grant of federal question jurisdiction, or Article VI’s supremacy clause, for example.

It was to those questions that I turned in my presentation, arguing that Sosa’s approach is to treat the incorporation of customary international law not in an all-or-nothing manner, but issue by issue, an interpretation I advanced in a previous article on Sosa. I argued that the original understanding was that the President is bound by customary international law under Article II, that cases arising under the law of nations are within the federal question grant of Article III, and (perhaps most controversially) that customary international law should bind the states under the supremacy clause.

Beth Stephens was the voice of reason and practicality. Among other things, she discussed Sosa’s impact on the corporate cases, arguing that the violations they allege are clearly actionable under Sosa. She also pointed out that the First Congress recognized both that private actors not acting under color of state law could violate some rules of the law of nations and that aiders and abettors of international law violations could be held liable. One such case, In re South African Apartheid Litigation, is currently pending before the Second Circuit and we will soon see if she is right.

YMCAs and OSHAs: The Foreign Policy Generational Gap

by Roger Alford

A recent survey by Pew highlights a notable generational gap on foreign policy perspectives. If you look at attitudes of the two extreme age groups that were surveyed — those who are 18-29 and those who are 65+ — the differences in foreign policy perspectives are stark. In fact, we have a tale of two Americas. Call them the YMCAs and the OSHAs: Young Militaristic Cosmopolitan Americans and Old Skeptical Historical Americans.

According to survey the younger generation are militaristic. They are far more likely to support military action in Iraq, and more comfortable authorizing use of force to maintain oil supplies, prevent famines, or restore law and order with failing governments. As the survey says, “it is older Americans, not young people, who typically show the greatest wariness about using military force.” They also are more “cosmopolitan” in the sense that they have a stronger global perspective. They strongly favor the United Nations, are more willing to cede American power to other countries, are committed to compromise with allies, want to improve the living standards in developing nations, and favor free trade. “[Y]ounger age cohorts are not only more likely to be defenders of internatioanal agreements but also to express concern about the protection of innocents abroad…. [W]hile younger people believe America’s best approach to foreign policy is through cooperation and compromise, they also see the use of military force as a tool in the foreign policy toolbox – a practical and tough-minded way to achieve a compassionate end.”

At the other extreme, the oldest generation are skeptical of military force and appear to view the world through the prism of history. They are far more skeptical of the military action in Iraq, and are deeply wary of authorizing the use of force to maintain oil supplies, prevent famines, or restore law and order. They distrust the United Nations, are skeptical of free trade, and are far less likely to favor compromise with allies or ceding America’s superpower status. They appear to have a stronger conception of duty, expressing more willingness to fight for our country, right or wrong. As the survey suggests, the oldest generation’s views “are shaped by the events and experiences they share such as World War II, Vietnam, and the end of the Cold War.”

Here is an edited version of some of the results:




Support War in Iraq (F’03)




Support Force to Maintain Oil Supply




Support Force to Prevent Famines




Support Force to Restore Order




Favorable View of United Nations (O’05)




Should Compromise on Foreign Policy




Should Accept Power Sharing




Support Free Trade




Improve Living Standards Abroad




Fight For Our Country Right or Wrong




Bolton and the Proposed UN Human Rights Council

by Kevin Jon Heller

The United Nations has released the text of its draft compromise on replacing the existing Human Rights Commission with a new Human Rights Council. Here are the key paragraphs:

OP7 … the Human Rights Council shall consist of 47 Member States which shall be elected directly and individually by secret ballots by the majority of the members of the General Assembly. The membership shall be based on equitable geographic distribution and seats shall be distributed as follows among regional groups: Ahcan Group 13; Asian Group 13; Eastern European Group 6; GRULAC 8; WEOG 7. The members of the Council will serve for a period of three years and shall not be eligible for immediate re-election after two consecutive terms.

OP8 … the membership in the Council shall be open to all Member States of the United Nations. When electing members of the Council, Member States shall take into account the candidates’ contribution to the promotion and protection of human rights and their voluntary pledges and commitments made thereto. The General Assembly, by a two-thirds majority of the members present and voting, may suspend the rights of membership in the Council of a member of the Human Rights Council that commits gross and systematic violations of human rights.

0P9 Members elected to the Council shall uphold the highest standards in the promotion and protection of human rights, fully cooperate with the Council, and be reviewed under the universal periodic review mechanism during their term of membership.

OPlO The Council shall meet regularly throughout the year and schedule not fewer than three sessions per year, including a main session, for a total duration of no less than ten weeks, and shall be able to hold special sessions when needed at the request of a Member of the Council with the support of one-third of the membership of the Council.

Although the new Council would be substantially better than the existing Commission — it would meet more often and require periodic review of members states’ human-rights practices — the draft compromise has one glaring weakness: it does not require a 2/3 majority of the General Assembly for election to the Council, leaving open the possibility that serial human-rights abusers could continue to be elected.

Human Rights Watch and Amnesty International both support adopting the draft compromise, although they acknowledge its limitations. The U.S. is more disasstisifed– and is threatening to re-open negotiations as a result. But as Scott Paul points out at Bolton Watch, the U.S. has only itself — or, more precisely, its Ambassador, John Bolton — to blame for the absence of the 2/3 majority requirement:

First, after Anne Patterson successfully included the 2/3 provision in the negotiating text for the September World Summit, Bolton blew the consensus apart by submitting 750 amendments to the text, many of them of questionable importance to U.S. foreign policy and also deeply offensive to developing countries.

Then, in December, Bolton proposed that the permanent five members of the Security Council should get permanent seats on the HRC. There were two problems with this idea. First, since that would mean China and Russia automatically get seats, it implied that the more interested in membership for itself than credible standards in general. Second, no other countries supported the idea. Instead of working towards achievable U.S. goals, Bolton squandered a fair amount of political capital by pushing this non-starter.

In recent weeks, Bolton still did not lobby for the 2/3 provision. Instead, he promoted his own worthless and unachievable proposal: that countries under Security Council sanction would not be allowed to serve. Today, that would exclude a whopping two countries, Sudan and Cote d’Ivoire, from the HRC. Even in the closing days, a united front with Europe in support of the 2/3 majority would probably have been enough to see it through. Secretary Rice was doing her best to advance the 2/3 provision in capitals around the world, and a little support in New York would have gone a long way.

These three were Bolton’s publicly acknowledged gaffes during this process, but there were many subtle failures, too. For example, over the last three months of 2005, when negotiations after the Summit were really taking shape, Bolton rarely bothered to show up. Instead, he spent his time railing against the UN’s shortcomings in the press and on the Hill, leaving Deputy Assistant Secretary of State Mark Lagon to hold down the fort. Lagon did well, but without high-level representation, the U.S. was seriously handicapped in the negotiations.

At this point, re-opening negotiations would most likely do more harm than good — “death by 1,000 cuts,” in the words of Kenneth Roth, the executive director of Human Rights Watch. So although the new Council would not be perfect, it may now be the best we can do. One thing is clear: the least acceptable option of all is a return to the status quo ante.

Gender, War and Peace: Michigan State Law School Conference, Feb. 24

by Peggy McGuinness

Michigan State Law School is sponsoring a symposium tomorrow, Feb. 24, on Gender, War and Peace: Women’s Status in the Wake of Conflict. MSU Law has lined up a diverse and talented group of scholars and practioners in the areas of women’s human rights, international law feminism and post-conflict justice. (I will be offering my take on the role of gender in formal peace processes.) The full schedule and list of participants is here. As always, if there are any OJ readers in the Lansing, MI area, do stop by.

Request for Hiring Information

by Roger Alford

In response to my post from last week, thanks to those who have submitted information on new and lateral international law professor hires. I have received numerous emails, but wanted to encourage anyone who has not yet sent information to email me and provide the new institutional affiliation, the name of the professor, specializations (if known), and the name of the former institution (or indicate “new professor” if applicable).

At the suggestion of one of the emails, I will post the information in mid-March as soon as the hiring season is over.

Institutionalizing the War on Terror

by William S. Dodge

At the American Enterprise Institute on Tuesday a panel with diverse viewpoints—Kenneth Anderson, Morton Halperin, John Hutson, and Andrew McCarthy—expressed a remarkable consensus about the need for the President to go to Congress to establish the rules for a lasting “war on terror,” including such issues as intelligence gathering, detention, rendition, and the use of force short of war.

Kenneth Anderson warned that if the Bush Administration does not institutionalize the war on terror, that war will not outlast the Administration. Morton Halperin agreed, characterizing the Administration’s unilateralism as a “fundamental political misjudgment.”

John Hutson, a retired admiral and now dean of the Franklin Pierce Law Center, warned that if we are not careful we may lose the war on terror, and cautioned that “If we lose our soul . . . we ultimately will have lost the war on terror.” War is never a solution by itself, he said, but only buys time to develop other solutions, adding “we need to figure out why they hate us.” Andrew McCarthy replied that it doesn’t matter why they hate us, because knowing would not change our strategy or objective, which is to break the ability of radical Islam to project force.

John Yoo moderated the panel. Unfortunately he remained silent on the advisability of executive unilateralism in the war on terror, but you can buy his book.

Manzanar War Relocation Center

by Roger Alford

On February 19, 1942, a few weeks following Pearl Harbor, Franklin Roosevelt signed Executive Order 9066 authorizing the internment of Americans of Japanese ancestry. The purpose of the Order was to ensure the “successful prosecution of the war” which “requires every possible protection against espionage and against sabatoge.” Pursuant to that order, 120,000 Japanese Americans were relocated to 10 internment camps throughout the United States.
Over the weekend I had occasion to take my children to visit one of those camps, the Manzanar War Relocation Center. It is a desperately desolate and isolated place near the Sierra Nevadas, with only one large auditorium left of what was once a bustling internment camp housing over 10,000 Japanese Americans. A historical map gives you an idea of what it was like during the war.

The short film was superb and perfectly illustrates the attempted normalcy within the confines of a prison atmosphere. Three stories from the film poignantly illustrated this paradox:

  • First, the children who went to school at Manzanar wanted to pledge allegiance to the United States flag at the start of class each morning. But there was no flag, so the teacher had the children draw American flags and post it in the corner of the school room. Each morning they would pledge allegiance to the children’s drawings of the American flag.
  • Second, the Manzanar high school played local teams in high school football. Every game was a home game, for the “Manzanites” were not allowed to travel outside the camp.
  • Third, many Japanese Americans were committed to fighting for the United States in the Second World War. These volunteers established the 442nd Regimental Combat team, a Japanese American volunteer unit. One of those volunteers, Sadao Munemori, posthumously received the Medal of Honor for falling on a grenade and saving others in his regiment. His mother received the medal on his behalf from within the confines of the Manzanar internment camp.
If you are a professor or teacher you can contact the National Park Service (contact details here) for a teaching package that has wonderful information about the camp. It includes a reproduction of the camp newspaper, a timeline, historical material, and best of all, copies of 30 personal stories of individuals who were housed in the camp.

I forced myself to read all thirty stories. Here are two of my favorites. The first offers a glimpse of life in the camp.

Name: M. Nagano
Family Number: 1046
Address in Manzanar: 6-11-5

… The night of Dec. 7, 1941, the day Pearl Harbor was bombed, the FBI took my father in custody as a “dangerous enemy alien” and he consequently lost his business. I was 16 when Pearl Harbor was bombed, and the FBI took my father away…. There were eventually reports in the daily newspapers that the government would remove us from the West Coast. My younger brother was 14 and would not believe that it could happen to us, because we were American citizens…. My father had begun building a new home for us in October 1941. We moved into the house in January 1942 and lived there only two months before we had to leave for Manzanar. My mother was so upset that we packed all of our personal things in boxes and left everything…. We went by train and bus to Manzanar on April 2, 1942…. I had envisioned Manzanar as a camp of little white cottages for each family, like the cottages at Sequoia National Park where we had stayed during vacations. I can still vividly recall my dismay as we pulled into Manzanar off the highway at dusk and saw rows of black, tar-papered barracks … our home for an indeterminate future. We were registered and then given canvas ticking bags…. We walked to our apartment which we were to share with another couple and their 2 year old son…. My younger brother and I spent our days walking around the perimeter of the camp, looking out at the highway and watching the cars go by and spending time with friends until school was finally established in October…. Our classrooms were in a whole block set aside for the school. We sat in the unheated rooms on the linoleum floor, with no furniture, no textbooks, or supplies at the beginning. I remember one day in particular when we were handed fliers with the Bill of Rights listed on Bill of Rights Day; it caused an angry exchange between the teacher and some of the students.

The second offers broader ruminations about the meaning of the Japanese internment camps for American democracy.

Name: S. Embrey
Family Number: 2614
Address in Manzanar: 20-3-1

… I think Manzanar should stand as a symbol of something that happened in America; had happened before and could happen again. It takes people who are aware of the past to make sure it doesn’t get repeated in the future. But also, it’s a strength of the American government and American democracy that we were given an apology and we were told that it was a mistake; that we were loyal citizens and law abiding parents and that it was not good for the government and American democracy to do this. We should all be vigilant. Liberty is something very precious we all need to work for and to strengthen. Telling the world that the government is willing to apologize, I think, indicates the strength of our democracy.

Justice Scalia on Foreign Law and the Constitution

by William S. Dodge

In a speech at the American Enterprise Institute on Tuesday, Justice Scalia took aim once again at the use of foreign law to interpret the Constitution. While freely admitting that 18th Century English law is relevant to that exercise, he denied that modern foreign legal materials ever are. And in response to a question from Professor Julian Ku, he extended his position to reject the relevance of international law as well.

As he did at the 2004 annual meeting of the American Society of International Law, Justice Scalia pointed out that foreign law is often invoked selectively. Yes, a great many nations do not allow the execution of minors, but a great many also criminalize abortion. Scalia also linked the use of foreign legal materials to what he called the “living Constitution paradigm.” Invoking Justice Holmes, he characterized the law of international human rights as the new “brooding omnipresence in the sky,” portending a return to what Scalia called the “bad old days before Erie.”

During a panel discussion that followed Justice Scalia’s speech, Tom Goldstein (SCOTUSblog) suggested that the current debate over the use of foreign law is a proxy for the debate over originalism. Breyer and other believers in the “living Constitution” are willing to look to foreign materials to help them fashion solutions for modern problems, while Scalia rejects such materials because he believes that all the answers must be found in the original understanding.

If Goldstein is right, a curious thing about this debate is that rejection of foreign and international law is associated with originalism. The “bad old days before Erie” included the 18th Century world of the Framers. They believed in a “brooding omnipresence in the sky” called the general common law, of which the law of nations was a part. The original understanding was that this law of nations was part of U.S. law in myriad ways, and as Professor Sarah Cleveland has shown in her thoroughly researched article “Our International Constitution”, the use of international law to interpret the Constitution stretches back to the Marshall Court.

Perhaps, then, it is really Justice Breyer who is being faithful to the original understanding of foreign and international law’s place in our constitutional system and its relevance to constitutional interpretation and Justice Scalia whose break with that tradition represents–dare I say it–“living Constitutionalism.”

Spanish Prosecutor Wants 9/11 Conviction Quashed

by Kevin Jon Heller

Spain’s Public Prosecutor has urged the Spanish Supreme Court to quash the conviction of Imad Eddin Barakat Yarkas, sentenced last year by a lower court to 15 years in prison for “conspiracy to commit terrorist murder” in connection with the September 11. The lower court concluded that sufficient evidence exists to prove that Yarkas helped an al Qaida cell in Hamburg draw up the plan to attack the World Trade Center, but the Public Prosecutor agrees with Yarkas’ attorneys that “[t]he evidence considered by the court… is weak and inconsistent… and does not fulfil the level of requirement that it must reasonably and necessarily meet to persuade and convince.” (The Public Prosecutor did encourage the Supreme Court to uphold Yarkas’ conviction for being a member of al-Qaida.)

If the Supreme Court agrees with the Public Prosecutor, it will mean that a high-profile trial of 24 alleged al-Qaida members in Spain last year ultimately failed to convict anyone in connection with 9/11. Three of the 24 defendants were accused of 2,973 murders in connection with the attacks — charges that carried potential jail terms of more than 74,000 years — but were acquitted last September by Spain’s High Court. (18 of the 24 defendants were convicted of other charges, in most cases being members of al-Qaida.)

Interestingly, the Public Prosecutor urged the Supreme Court to uphold the conviction of Tayseer Alouni, an al-Jazeera journalist who was sentenced to seven years for collaborating with al-Qaida. His conviction — which was based almost exclusively on the fact that he interviewed Osama bin Laden not long after the 9/11 attacks — has been fiercely criticized the by media organizations such as Reporters Without Borders.

Justice Scalia on the Role of Foreign Authority

by Roger Alford

Justice Scalia was the keynote speaker yesterday at the American Enterprise Institute on the subject of the role of international law in American courts. The agenda for the full program, which included Julian Ku and guest blogger Bill Dodge, is available here. The speech is available on C-Span here (via How Appealing).

Here is an abstract of his speech:

  • Foreign law is relevant in the interpretation of treaties (Real Player, 2nd minute)
  • Foreign law is relevant to the meaning of a statute, or where the issue for resolution depends on an understanding of foreign law (3rd minute)
  • Foreign law is relevant to rebut “sky is falling” arguments regarding a proposed practice where that practice has been successfully adopted in other jurisdictions (5th minute)
  • “Old” foreign law is relevant to understand the original meaning of the Constitution. (6th minute)
  • Modern foreign legal materials are never relevant and occasionally (i.e., Printz) the Court has adopted this approach (7th minute)
  • The Court has increasingly relied on foreign law in Eighth Amendment jurisprudence (9th minute)
  • Recently the Court has expanded the reliance on foreign law beyond the Eighth Amendment as in the case of Lawrence v. Texas (11th minute)
  • Use of foreign law will continue at an accelerated pace because of (1) living constitutionalism (12th minute); (2) “because it is there” and the Court needs analytical tools for philosophical conclusions (18th minute); and (3) foreign authority increases the scope of judicial discretion, not unlike the use of legislative history (21st minute)
  • “One who believes that it falls to the courts to update the list of rights guaranteed by the Constitution tends to be one who believes in a platonic right and wrong in these matters which wise judges are able to discern when the people at large cannot.” (14th minute)
  • “This notion of an overarching moral law that is binding upon all of the nations of the world and that judges of all the nations of the world are charged with interpreting has replaced the [pre-Erie] common law.” (15th minute)
  • Human rights law is the new brooding omnipresence in the sky. (16th minute)
  • The Court has selectively chosen when to use foreign law. Abortion law does not reference foreign authority. “I will become a believer in the ingenuousness, though never in the propriety of the Court’s newfound respect for the wisdom of foreign minds when it applies that wisdom in the abortion cases.” (22nd minute)
  • Founders did not aspire to emulate Europeans (24th minute)
  • Civil law countries have adopted practices very different from our own (25th minute)
  • “Few of us would want our life or liberty subject to the disposition of French or Italian criminal justice, not because those systems are unjust, but because we think ours is better. What reason is there to believe that other dispositions are so obviously suitable to the morals and manners of our people that they can be judicially imposed through constitutional adjudication.” (27th minute)

As reported here and here, the question period was disrupted by hecklers and protesters. There were a few serious questions, and they included the following exchanges:

  • Q. (Bill Dodge, Hastings) “The Framers believed there was a brooding omnipresence in the sky, it was called natural law, it lay behind the general common law and the law of nations. By saying that it is no longer valid as a source after Erie, aren’t you being anti-originalist or worse yet, a living constitutionalist?” A: I believe in natural law, but the issue is whether the people or the courts adhere to it and adopt it. It isn’t a fight of natural law people vs. non-natural law people, but who enacts it. (29th minute)
  • Q. (Julian Ku, Hofstra, Opinio Juris) Do you make a distinction between international and foreign law? When you say foreign authority do you mean both international law and the domestic law of foreign countries? A. Yes, except for international law to which we have subscribed. (40th minute)
  • Q. (Tom Goldstein, Goldstein & Howe, SCOTUSblog) Minimum levels of rationality are included in the Constitution. What are your thoughts of looking to the experiences of other countries that have considered similar questions on issues such as irrational discrimination under the 14th Amendment? A. No, I don’t think there is much difference between a foreign court saying something is stupid and it saying that it is really stupid. My decision should be based on our text and our traditions. (41st minute)
  • Q. (Michael Greve, AEI): The biggest supporters of international law in cases where you don’t like it are also the biggest opponents of using international law where you would use it (such as interpreting the Warsaw Convention or determining whether the European Commission is a tribunal). Can you speculate why international law aficionados’ enthusiasm wanes in such cases? A. I’m not sure it breaks out quite that cleanly. I don’t think there is any correlation. (47th minute)

US Involvement in Croatian War Crimes?

by Kevin Jon Heller

When I wrote last week about the EU’s threat to suspend membership talks with Serbia if it does not find General Ratko Mladic and turn him over to the ICTY — which it looks like it is about to — I noted that the EU had successfully pursued a similar strategy to prod Croatia to arrest General Ante Gotovina, accused of being responsible for the murder of at least 150 Serbian civilians and the eviction of more than 150,000 Serbs from the Krajina region in August, 1995. As it turns out, Croatia might not have been the only state less than enthusiastic about bringing Gotovina to justice; according to a disturbing recent report in Spiegel Online, the US might have been reluctant as well — because it helped Gotovina plan and carry out the Krajina offensive:

Croatian military sources told SPIEGEL that Gotovina had direct though secret support from both the Pentagon and the Central Intelligence Agency in planning and carrying out the “Storm” offensive, which was designed to retake the Krajina region from the Serbs. The International Criminal Tribunal for the Former Yugoslavia (ICTY) behind chief prosecutor Carla del Ponte has charged Gotovina and the late Croatian leader Franco Tudjman with committing a “joint criminal undertaking” with the goal of ethnically cleansing the Serbs from Croatia.

In preparing for the offensive, Croatian soldiers were allegedly trained at Fort Irwin in California and the Pentagon purportedly aided in planning the operation. Additional training assistance is said to have come from the American firm Military Professional Resources Incorporated. Immediately prior to the offensive, then-Deputy CIA Director George Tenet allegedly met with Gotovina and Tudjman’s son — then in charge of Croatian intelligence — for last minute consultations. During the operation, a US aircraft is said to have destroyed Serbian communication and anti-aircraft centers and the Pentagon allegedly passed on information gathered by satellite to Gotovina.

Spiegel also reports – even more sensationally – that then-President Clinton was aware of and condoned Gotovina’s intentions:

Earlier this month, the Zagreb weekly Globus, claiming sources within Gotovina’s defense team, alleged that then US President Bill Clinton knew all about the planned offensive. Clinton, the paper alleged, was angry at the Serbs for having overrun the UN protected Bosnian “safe area” of Srebrenica the previous month and wanted them punished.


Gotovina has pled not guilty to the war crimes charges levied by the Hague tribunal. News reports have indicated that Gotovina’s lawyers may be planning to rest his defense on the American participation in the offensive.

Because these allegations come courtesy of Gotovina’s defense team, it’s easy to dismiss them as self-serving. They’re given credence, however, by the fact that — according to Spiegel — an American lawyer, Greg Kehoe, has joined the defense team at the insistence of the Pentagon.

It remains to be seen whether, in light of Kehoe’s participation, Gotovina’s the-US-let-me-do-it defense goes ahead as planned. Kehoe is a distinguished attormey; before entering private practice, he spent five years as an ICTY prosecutor and served as an advisor to the Iraqi Special Tribunal. So he can hardly be accused of being soft on war criminals. Then again, he’s now on a defense attorney. Stay tuned…

NOTE: A grateful tip of the hat to Professor Charles Bobis of St. John’s School of Law for alerting me to the Spiegel article.

Big Changes at Opinio Juris

by Peggy McGuinness

It is a week of transition here at Opinio Juris, as we prepare to migrate to a new and much improved location in the blogosphere. After finishing our first year here on blogger, we will emerge next week fully loaded at, a new site that will have added functionality and subject matter searchability. If you are signed up for the RSS feed from the blogger address, please be sure to register for the new feed.

As we tweak the features of the new site, we will post to both locations. Please check out the new site and let us know (via email or comment below) if you have ideas for improvements or features you would like to see added. And, as always, check this space for updates.

O Centro Espirita and Charming Betsy

by Roger Alford

The Supreme Court today rendered an important decision in Gonzalez v. O Centro Espirita concerning religious practices that are in violation of statutory and treaty obligations relating to controlled substances. The discussion of the treaty obligation is quite short:

Before the District Court, the Government also asserted an interest in compliance with the 1971 United Nations Convention on Psychotropic Substances …. The Convention, signed by the United States and implemented by the Controlled Substances Act, calls on signatories to prohibit the use of hallucinogens, including DMT. The Government argues that it has a compelling interest in meeting its international obligations by complying with the Convention.

The District Court rejected this interest because it found that the Convention does not cover hoasca…. The court reasoned that hoasca, like the plants from which the tea is made, is sufficiently distinct from DMT itself to fall outside the treaty…

We do not agree. The Convention provides that “a preparation is subject to the same measures of control as psychotropic substance which it contains,” and defines “preparation” as “any solution or mixture, in whatever physical state, containing one or more psychotropic substances.”… Hoasca is a “solution or mixture” containing DMT… [T]he UDV seeks to import and use a tea brewed from plants, not the plants themselves, and the tea plainly qualifies as a “preparation” under the Convention.

The fact that hoasca is covered by the Convention, however, does not authomatically mean that the Government has demonstrated a compelling interest in applying the Controlled Substances Act, which implements the Convention, to the UDV’s sacramental use of the tea. At the present stage, it suffices to observe that the Government did not even submit evidence addressing the international consequences of granting an exemption for the UDV. The Government simply submitted two affidavits by State Department officials attesting to the general importance of honoring international obligations and of maintaining the leadership position of the United States in the international war on drugs…. We do not doubt the validity of these interests, any more than we doubt the general interest in promoting public health and safety by enforcing the Controlled Substances Act, but under RFRA invocation of such general interests, standing alone, is not enough.

This is quite a significant holding, although difficult to apply to other statutes. The case suggests that mere invocation of Charming Betsy is not enough to satisfy the compelling interest requirements under RFRA. RFRA expressly requires the Government to establish a compelling interest and utilize least restrictive means to further that compelling interest. In that context, application of the Charming Betsy doctrine is problematic to apply because reconciliation of the international law obligation is not enough. One does not simply interpret RFRA consistent with international law obligations, one establishes that the statutory burden is satisfied because of international law concerns. Significantly, the Supreme Court did not say that compliance with international law is not a compelling state interest. It simply said that the Government had failed its evidentiary burden of establishing that this particular international obligation met that standard.

Related Links:
Charming Betsy and Psychedelic Tea

Wall Street Journal on Blogs and Law Reviews

by Roger Alford

Brandt Goldstein at the Wall Street Journal has an interesting article today addressing the current debate in the legal academy regarding the relative merits and demerits of law reviews and academic blogs. But in an interesting twist, he challenges the legitimacy of law reviews as much as engaging the current debate about the role of academic blogging. Here is an excerpt:
The focus of much current scholarship — theoretical work with no real application for judges, practitioners, or policymakers — has reduced the audience for it outside the legal academy. Hard statistics on law review readership are hard to come by, but anecdotal evidence suggests that practitioners simply don’t pay much attention to them these days…
Twenty years ago, little outside of the occasional book or magazine article deflected attention from law reviews. Today, legal blogs are siphoning away the attention of law professors and lawyers on issues of the day. Blogs such as The Volokh Conspiracy, Opinio Juris, and SCOTUSBlog attract tens of thousands of readers and feature informed discussion on everything from constitutional theory to law-related television shows. Blogs now occupy so many professors, in fact, that at the American Association of Law Schools annual conference, a panel was held to debate the influence of blogs in the legal academic community….
The debate about law reviews isn’t simply academic. Rather, the issue puts into question the role of what professors should do when they’re not teaching. “Legal scholarship is at a crossroads,” says Ethan Lieb, a young professor aiming for tenure at Hastings College of the Law in San Francisco. “The question we’re asking is: Is our job to advance knowledge through contributions to academic journals, or is it to contribute to the public conversation about law?”
I find this article quite helpful. My impression is that in an ideal world law professors should participate in both academic and public conversations. I would hazard that most law professors hope to make a measurable difference in their chosen field, and to fulfill that objective requires determined engagement at multiple levels in multiple conversations. Amici briefs, op-eds, television commentary, blogs, teaching, conferences, public-oriented books, and formal scholarship are all part of a vibrant conversation about the contours of law and policy. For example, the current conversation about the role of foreign authority in constitutional interpretation is occurring at every level one can imagine, from Supreme Court confirmation hearings, to academic symposia, to friendly dinner conversation among informed lay people. There is no inherent reason why law professors should not engage that discussion at every level. And the luxury of academic life is that there is sufficient time to join in that conversation at multiple levels. Blogging is simply a particularly efficient manifestation of the public side of the conversation.
The article concludes by noting that Rosa Brooks at LawCulture has chosen to abandon law reviews for blogging and books. But I for one am more than happy to continue the conversation through the media of blogging, books, … and law reviews.

No "Smoking Gun" at Saddam’s Trial

by Kevin Jon Heller

A few days ago I mentioned a report that prosecutors had produced written orders by Saddam ordering the execution of 140 Shiites in Dujail in 1982 — the proverbial “smoking gun.” As it turns out, the documents are not so damning after all. According to the AP, the prosecution produced two documents at trial Feb. 13-14: one that shows Saddam signing off on bonuses for security agents who investigated the attempt on his life; and one that shows Saddam approved of death sentences for Dujail residents. Although both documents strengthen the prosecution’s case, neither prove that that Saddam knew of or ordered the Dujail massacre:

Documents submitted last week include Saddam’s approval of a recommendation allegedly made by Barzan Ibrahim, his half brother and co-defendant, to reward intelligence officers for their “confrontation against subversive and armed elements … in the Dujail area.”

However, that could simply be referring to their role in the gunfight that followed the attempt on Saddam’s life in July 1982 — or the rounding up of suspects who were later tortured and killed. Ibrahim was chief of intelligence in 1982.

Similarly, Saddam’s approval of death sentences handed down by the Revolutionary Court against Shiites from Dujail could not prove incriminating unless there is compelling evidence that Saddam knew the defendants were railroaded.

Also, orders for arrests or transfers of detainees from one facility to another mean little unless the prosecution can prove that Saddam knew they would be tortured.

“There is nothing in these documents that show anything beside President Saddam exercising his constitutional authorities,” said Khamis al-Obeidi, one of Saddam’s retained defense lawyers. “As president, he ratifies death sentences and approves promotions.”

The chief prosecutor, Ja’afar Moussawi, has promised to introduce an even more damning document — a communication between Saddam and the intelligence agency — when the trial resumes on February 28th. Stay tuned.

Torture, Memos, and Fig Leaves

by Chris Borgen

Jane Mayer of The New Yorker has published an excellent article on the Administration’s attempts to thwart critics of its use of what can only be called torture on detainees in the War on Terrorism. It focuses in part on the experiences of Navy General Counsel Alberto Mora in trying to end such practices. The article is long and it is worth reading in its entirety. Following are a few excerpts I found particularly interesting in relation to the topics we discuss on this blog.

First up is an excerpt concerning the Yoo “Torture Memo”:

“The memo espoused an extreme and virtually unlimited theory of the extent of the President’s Commander-in-Chief authority,” Mora wrote in his account. Yoo’s opinion didn’t mention the most important legal precedent defining the balance of power between Congress and the President during wartime, Youngstown Sheet & Tube Company v. Sawyer. In that 1952 case, the Supreme Court stopped President Truman from forcing the steel worker’s union, which had declared a strike, to continue producing steel needed in the Korean War. The Court upheld congressional labor laws protecting the right to strike, and ruled that the President’s war powers were at their weakest when they were challenging areas in which Congress had passed legislation. Torture, Mora reasoned, had been similarly regulated by Congress through treaties it had ratified.

In an e-mail response to questions this month, Yoo, who is now back at Berkeley, defended his opinion. “The war on terrorism makes Youngstown more complicated,” he said. “The majority opinion explicitly said it was not considering the President’s powers as Commander-in-Chief in the theater of combat. The difficulty for Youngstown created by the 9/11 attacks is that the theater of combat now includes parts of the domestic United States.” He also argued that Congress had ceded power to the President in its authorization of military force against the perpetrators of the September 11th attacks…

A little later, the article recounts that:

On February 6th, Mora invited Yoo to his office, in the Pentagon, to discuss the opinion. Mora asked him, “Are you saying the President has the authority to order torture?”

“Yes,” Yoo replied.

“I don’t think so,” Mora said.

“I’m not talking policy,” Yoo said. “I’m just talking about the law.”

Fast forward to a few months ago. By now, Yoo’s memo has been repudiated. But then:

… Mora attended a meeting in Rumsfeld’s private conference room at the Pentagon, called by Gordon England, the Deputy Defense Secretary, to discuss a proposed new directive defining the military’s detention policy. The civilian Secretaries of the Army, the Air Force, and the Navy were present, along with the highest-ranking officers of each service, and some half-dozen military lawyers. Matthew Waxman, the deputy assistant secretary of defense for detainee affairs, had proposed making it official Pentagon policy to treat detainees in accordance with Common Article Three of the Geneva conventions, which bars cruel, inhumane, and degrading treatment, as well as outrages against human dignity. Going around the huge wooden conference table, where the officials sat in double rows, England asked for a consensus on whether the Pentagon should support Waxman’s proposal.

This standard had been in effect for fifty years, and all members of the U.S. armed services were trained to follow it. One by one, the military officers argued for returning the U.S. to what they called the high ground. But two people opposed it. One was Stephen Cambone, the under-secretary of defense for intelligence; the other was Haynes. They argued that the articulated standard would limit America’s “flexibility.” It also might expose Administration officials to charges of war crimes: if Common Article Three became the standard for treatment, then it might become a crime to violate it. Their opposition was enough to scuttle the proposal.

In exasperation, according to another participant, Mora said that whether the Pentagon enshrined it as official policy or not, the Geneva conventions were already written into both U.S. and international law. Any grave breach of them, at home or abroad, was classified as a war crime. To emphasize his position, he took out a copy of the text of U.S. Code 18.2441, the War Crimes Act, which forbids the violation of Common Article Three, and read from it. The point, Mora told me, was that “it’s a statute. It exists-we’re not free to disregard it. We’re bound by it. It’s been adopted by the Congress. And we’re not the only interpreters of it. Other nations could have U.S. officials arrested.”

Not long afterward, Waxman was summoned to a meeting at the White House with David Addington. Waxman declined to comment on the exchange, but, according to the Times, Addington berated him for arguing that the Geneva conventions should set the standard for detainee treatment. The U.S. needed maximum flexibility, Addington said. Since then, efforts to clarify U.S. detention policy have languished. In December, Waxman left the Pentagon for the State Department.

(By the way, Cambone is the same person who’s notes from 9/11 were recently released in a FOIA request.)

This is just scratching the surface of this article; it is well worth reading the complete text.

We as Americans will constantly argue over the proper balance between law and policy, between national security and individual rights. But for this to be an honest discussion in pursuit of balance, then the idea of law has to actually mean something. If law and legal opinions are just a fig leaf, then we’ve lost more than just our innocence.

Court Dismisses Lawsuit Challenging "Extraordinary Renditions"

by Julian Ku

A New York federal court has dismissed the complaint by a Canadian who alleged he had been “rendered” to Syria by U.S. government officials in order to be tortured. Maher Arar had sued former U.S. Attorney General Ashcroft as well as a number of other U.S. officials alleging he has a right to damages under the Torture Victim Protection Act as well as for violations of his Fifth Amendment Due Process rights. The court, per Judge Trager, dismissed Arar’s complaints on a variety of grounds.

(1) Arar’s TVPA claim fails because the TVPA was intended to protect only U.S. citizens, U.S. officials here were not acting under the TVPA-required “color of foreign law” element, and because Congress has specifically refused to create a private right of action for complainants like Arar in other statutes.

(2) Arar’s Due Process claims fail under an exception to the Bivens doctrine (which allows individual enforcement actions of constitutional violations). In cases implicating national security, courts may refuse to allow private enforcement actions of constitutional rights. As the court held:

[W]hether the policy be seeking to undermine or overthrow foreign governments, or rendition, judges should not, in the absence of explicit direction by Congress, hold officials who carry out such policies liable for damages even if such conduct violates our treaty obligations or customary international law.

The Court also dismissed Arar’s other claims stemming from his detention in the U.S. but he can replead them excluding the claims about rendition.

The Center for Constitutional Rights, who are Arar’s attorneys, are obviously unhappy (see their reaction here) and plan to appeal. But I think Judge Trager’s decision is well reasoned and thoughtful. It also is going to be difficult to reverse on appeal because he relied on fairly narrow grounds for his holdings. Still, CCR has a decent shot at getting Counts 2 and 3 reinstated. Those counts turn on the scope of an alien’s constitutional rights and his ability to enforce them. This is relatively new stuff without lots of really binding precedent.

Whether CCR should win on appeal, however, is quite another question. I have to say that I’m a bit torn. The facts alleged by Arar here are quite compelling. If true, then it seems a true injustice if he can’t get a remedy somewhere for what happened to him.

On the other hand, extending constitutional rights (and the right to sue to enforce those rights) to every nonresident alien outside the U.S. would be a momentous and potentially revolutionary move. Every U.S. agent or soldier operating abroad might have to provide Fifth Amendment Due Process rights to foreigners they encounter. While you might say, not a big deal. The Constitution follows the flag, etc. But just wait for that flood of litigation from Iraq and Afghanistan …

Welcome to Guest Blogger Bill Dodge

by Peggy McGuinness

I’d like to welcome Professor Bill Dodge as a guest blogger at Opinio Juris. Bill teaches at UC Hastings College of Law and is an expert on international business and economic law, in particular the emerging law of NAFTA Chapter 11 disputes. He is co-author of one of the leading casebooks on transnational business law, and has also written extensively on extraterritoriality and the alien tort statute. His SSRN page is here. We look forward to Bill’s contributions over the next couple of weeks.


Holocaust Denial and the Additional Protocol to the Convention on Cybercrime (Updated)

by Kevin Jon Heller

To follow up on Peggy’s post about David Irving, it’s worth noting that Article 6 of the Additional Protocol to the Convention on Cybercrime contains the following controversial provision:

1. Each Party shall adopt such legislative measures as may be necessary to establish the following conduct as criminal offences under its domestic law, when committed intentionally and without right:

distributing or otherwise making available, through a computer system to the public, material which denies, grossly minimises, approves or justifies acts constituting genocide or crimes against humanity, as defined by international law and recognised as such by final and binding decisions of the International Military Tribunal, established by the London Agreement of 8 August 1945, or of any other international court established by relevant international instruments and whose jurisdiction is recognised by that Party.

Article 6 does, however, allow a Party to either

a. require that the denial or the gross minimisation referred to in paragraph 1 of this article is committed with the intent to incite hatred, discrimination or violence against any individual or group of individuals, based on race, colour, descent or national or ethnic origin, as well as religion if used as a pretext for any of these factors, or otherwise

b. reserve the right not to apply, in whole or in part, paragraph 1 of this article.

28 Member States of the Council of Europe (and Canada, a non-Member) have signed the Additional Protocol. Notable exceptions include the UK, Italy, Spain, and Russia. Four Members — Albania, Cyprus, Denmark, and Slovenia — have ratified the Additional Protocol, one short of the number needed for it to enter into force.

The US is a signatory to the Convention on Cybercrime itself, but has refused to sign the Additional Protocol on First Amendment grounds.

Although I am Jewish and lost family in the Holocaust, I’m with the U.S. on this one. In my view, laws criminalizing speech invariably do more harm than good, because they turn minor figures into martyrs and disseminate their repulsive beliefs far more widely than would be the case otherwise. Irving is a case in point; according to the AP,

Irving’s lawyer, Elmar Kresbach, said last month the controversial Third Reich historian was getting up to 300 pieces of fan mail a week from supporters around the world and was writing his memoirs in detention under the working title “Irving’s War.”

UPDATE: Irving has been sentenced to three years in prison. Although the sentence could certainly have been more severe, it’s still disappointing that the court felt it was necessary to incarcerate him. I don’t know what other options were available under German law — readers? — but it seems to me that some combination of fines, public statements, and community service would have been more appropriate punishment.

LATER UPDATE: Irving has announced his intention to appeal the sentence, saying he is “shocked” by its severity.

David Irving Pleads Guilty in Austria to Holocaust Denial

by Peggy McGuinness

London Times correspondent Roger Boyes has posted these interesting observations about the goings on in the Vienna courtroom where Briton David Irving pled guilty this morning to the criminal charge of denying the Holocaust. Irving faces up to ten years in jail for speeches he gave in Austria in 1989 in which he claimed that the Holocaust never happened:

It’s becoming like a free speech seminar. You’ve got al-Jazeera here, you’ve got Jyllands-Posten [Danish newspaper], all the people affected by the cartoon war. Everyone one is asking why it’s taboo to attack the Holocaust but not to attack the Prophet Muhammad. But the case is being fought on the detail of what he said, testing whether he’s really retreating, whether his apologies are really worth anything, whether we can believe in Irving’s remorse.

Mr Irving arrived with a phalanx of black-shirted riot police 20 minutes before the trial started, held up his book, Hitler’s War, and basically held an impromptu press conference in which he dismissed the trial as ridiculous, saying it was 16 or 17 years since he made these comments.

When he got into court, the audience was a mixture of law students, concentration camp survivors and right-wing sympathisers – including a couple from Britain. But there was no unruliness.

Irving walked in with a swagger but soon ended pushed up against the wall in cross-questioning by the judge that forced him to apologise or express regret for almost every utterance he had made over the past 20 years. He admitted saying in 1989 that there were no gas chambers in Auschwitz. But he is saying that since he saw various documents in 1992 he has changed his mind and now accepts that Jews were killed.

It’s a jury trial and Irving keeps on making references to his daughter, hoping that he will get a suspended sentence so he can leave Austria tonight. But the judge is pushing him all the time, demanding apologies – he’s being even tougher than the prosecutor.

The essential weakness of Irving’s case is that the libel case in London, which finished in 2000, showed him even then to be a distorter of the historical truth and exposed lots of his arguments as false. So it’s hard for him to claim that he stopped being a Holocaust denier back in 1992.

So he’s pleaded guilty and is claiming that he’s changed his spots. The judge, through his tough questioning, is trying to challenge that – and, in so doing, is trying to influence the jury to impose a custodial sentence.

Sharia Law in Britain

by Roger Alford

This story coming out of Britain is quite amazing: “Four out of 10 British Muslims want sharia law introduced into parts of the country, a survey reveals today…. Islamic law is used in large parts of the Middle East, including Iran and Saudi Arabia, and is enforced by religious police. Special courts can hand down harsh punishments which can include stoning and amputation. Forty per cent of the British Muslims surveyed said they backed introducing sharia in parts of Britain….”

Saddam Could be Executed "Soon"

by Kevin Jon Heller

The chief prosecutor in Saddam Hussein’s trial said yesterday that Saddam could be executed “within months” if he is convicted — which seems increasingly likely. Article 27 of the IST Statute provides that all sentences “must be executed within 30 days of the date when the judgment becomes final and non-appealable.”

The prosecutor’s statement contradicts the assertion of some commentators that the Tribunal would stay any judgment in the Dujail case to allow Saddam to be tried for far more serious crimes, such as the ethnic cleansing of Kurds in northern Iraq in 1988, which is estimated to have killed as many as 182,000 people. According to the prosecutor, Ja’afar Moussawi, “[o]nce one of the accused on the Dujail case… has been sentenced to death, then he won’t be tried on other charges. Other charges will automatically be dropped against that particular defendant, even if the case itself is brought against others.”

Iraq would not violate international law by executing Saddam. According to Article 6(2) of the International Covenant on Civil and Political Rights,

[i]n countries which have not abolished the death penalty, sentence of death may be imposed… for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgement rendered by a competent court.

Nevertheless, as currently written, Article 27 of the IST Statute does violate international law. The Article prohibits any government authority, including the President of Iraq, from “grant[ing] a pardon or mitigat[ing] the punishment issued by the Court.” Article 6(4) of the ICCPR, however, specifically provides that

Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases.

Iraq is a party to the ICCPR.

A Million Tiny Holes in the Chinese Firewall

by Roger Alford

The Washington Post has published a wonderful article on the Chinese government’s failing attempt at Internet censorship. The overwhelming impression of the article is that, try as they might, the Chinese government is not going to be able to effectively censor information on the Internet. There are so many channels of information that the Chinese censors are flailing.

The article is consistent with other information I have heard on the same subject. Following my earlier post about Microsoft’s role in facilitating Chinese censorship, I was contacted by a very prominent technology expert who has traveled to China and follows the issue of Chinese censorship quite closely. In a long telephone conversation, his short summary was that the Chinese information network is very sophisticated and that information flows are extraordinarily complicated. The tools of the trade are legion, and include word of mouth, physical transmission of data, aviation information couriers, the Internet, text messaging, emails, and instant messaging. Then he said something quite interesting: the Chinese government censors know they have lost the battle. But they are easing toward a transition of freedom of information. They censor newspapers, stop a blog here and there, shut down sites, reopen them, etc. It is all a cat-and-mouse attempt to encourage self-censorship.

But there are a million tiny holes in the Chinese firewall. With over 100 million Internet users in China, how can they stop it? It is only a matter of time before the wall breaks. And when the information firewall breaks, one can only imagine what true freedom of the press will wrought for politics in China.

Go read the article. It will leave you quite encouraged.

UN Criticizes Switzerland for Amending its War Crime Law

by Kevin Jon Heller

According to SwissInfo, the United Nations is upset with Switzerland for amending its Code pénal militaire suisse to restrict the country’s ability to prosecute war crimes committed abroad. Article 2 of the Swiss Military Penal Code provides that military tribunals have jurisdiction over civilians or members of foreign forces who commit violations of international law during armed conflict. Prior to the disputed amendment, that jurisdiction was effectively universal; Article 9 expressly provided that Code applied to both violations committed in Switzerland and those that have been committed abroad:

This code applies to offences committed in Switzerland and to those which have been committed in a foreign country. Any custodial sentence served in a foreign country in respect of the offence being prosecuted in Switzerland will be deducted from the sentence given.

The recent legislation amends Article 9 to permit jurisdiction over war crimes committed in a foreign country only when the perpetrator has a “close link” to Switzerland, such as owning property or having family in the country. Holding a Swiss bank account or being present in Switzerland on vacation will no longer suffice.

Although the Swiss Foreign Ministry has insisted that the new Article 9 merely codifies existing Swiss practice, Amnesty International notes – in an unbelievably comprehensive report on universal jurisdiction, including a global survey of national legislation on the subject – that Swiss prosecutors were traditionally willing to open a criminal investigation into foreign war crimes when the suspect was believed to be in Switzerland. Presumably, suspected presence is no longer enough to trigger an investigation; present or not, the suspect must also have the “close link” required by the new Article 9.

New Article 9 also seems to contradict Switzerland’s obligations under the Geneva Conventions and Protocols I and II, all of which Switzerland has ratified. States that are party to the Conventions and Protocols are required to search for a person suspected of grave breaches of the Conventions and of Protocol 1 and either (1) prosecute him in the appropriate national court, (2) extradite him to a state party willing to do so, or (3) surrender him to an international criminal court:

Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided that such High Contracting Party has made out a prima facie case.

Under the Geneva Conventions, grave breaches involve the following acts, inter alia, when committed in connection with an international armed conflict against protected persons or property: wilful killing; torture or inhuman treatment; extensive destruction and appropriation of property not justified by military necessity; compelling a POW or otherwise-protected person to serve in the forces of the hostile power; and unlawful deportation or transfer of a protected person.

Protocol I, in turn, provides that grave breaches of the Geneva Conventions are grave breaches of the Protocol if committed against other kinds of protected persons, such as refugees and medial personnel, and extends the Conventions’ list of grave breaches to include, inter alia, harming the physical or mental health of protected persons, apartheid, delayed repatriation of POWs, and attacks on cultural property.

The obligation to search for persons suspected of grave breaches is not limited to the territory of the state party. It includes territory occupied by the state party; territory where the state party has peace-keepers, and the high seas, as well.

It is also worth noting that customary international law may impose a similar obligation on states to prosecute or extradite (aut dedere aut judicare) war crimes committed during international armed conflicts that do not qualify as grave breaches. In 1973, the General Assembly declared that

war crimes… wherever they are committed, shall be subject to investigation and the persons against whom there is evidence that they have committed such crimes shall be subject to tracing, arrest, trial and if found guilty, to punishment.

Article 9 of the ILC’s 1996 Draft Code of Crimes likewise provides that “the State Party in territory of which an individual alleged to have committed a [war] crime shall extradite or prosecute that individual.”

Finally, the Preamble of the Rome Statute states that because “the most serious crimes of concern to the international community as a whole must not go unpunished and… their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation,” it is “the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes.” (Switzerland is a party to the ICC.)

International law scholars in Switzerland are optimistic that the Swiss government will heed the UN’s plea to reconsider new Article 9. If it does, it will be a major victory for international criminal law. Switzerland has long been one of the few states – along with Australia, Austria, Belgium, Canada, Denmark, France, Germany, Israel, Mexico, Netherlands, Senegal, Spain, the UK, and the US willing to invoke universal jurisdiction to investigate and prosecute serious international crimes. In 1999, in fact, Switzerland became the first state to successfully prosecute a Rwandan for atrocities when a Swiss military tribunal in Lausanne convicted Fulgence Niyonteze, the former mayor of Mushubati, for various breaches of the Geneva Conventions and Protocol II. If Switzerland retreats from universal jurisdiction over war crimes now, therefore, the damage – real and symbolic – could be incalculable.

Translation Issues at the ICTR

by Kevin Jon Heller

The official languages of the ICTR are English and French. The vast majority of the 1,500 witnesses who have testified before the tribunal, however, speak only Kinyarawanda, the African-Bantu language that is the most widely-spoken language in Rwanda. As the Hirondelle News Agency reports in a fascinating article, the fact that most of the testimony heard by the ICTR judges has to be translated from Kinyarawanda into English and French has created numerous problems for the tribunal.

The most important problem is that many Kinyarawanda concepts do not translate easily or precisely into English and French. According to Mathias Ruzindana – a Rwandan language expert who testified as an expert in the ICTR’s seminal Akayesu case – Kinyarwanda expressions involving temporal concepts are particularly ill-suited for use in a legal context, because they tend to be far more general than their “equivalents” in English and French:

“Most Rwandans do not own watches, so they usually measure time by the movement of the sun or their routine activities to express time (e.g. grazing cattle)”, he said.

“Expressions like umuseke (dawn), igitondo (morning), umugoroba (evening), etc, exist but they are not precise and do not tally with the precision needed in judicial matters”, explained the Rwandan expert.

He went on to say that Rwandans usually shade these expressions by adding words such as “very early, at about, etc” without giving exact details.

“They cannot for example distinguish between 10:15 and 11: 45, yet an hour or half-an-hour would be enough to establish an alibi”, Ruzindana pointed out adding that it was not uncommon to hear a witness say that “a short moment” passed between two events without even being able to estimate the time.

This kind of exchange is very common and might go on for minutes without the lawyer getting a precise answer. The defence usually ends up getting angry and abandons the line of questioning saying that the witness had refused to answer. Yet in reality one man’s ignorance leads to another person’s lack of understanding.

The generality of Kinyarwanda temporal concepts, in turn, affects the precision of spatial concepts:

The problem of space usually poses the same problems as those of time. For the uneducated witnesses, estimation will be approximate. It would be difficult for example, for a witness to estimate in court the distance between his house and the local administrator’s office.

“The lawyer will be guided by the time it takes someone to cover the distance on foot. Unfortunately, estimating time when one does not and has never owned a watch is not an easy thing”, Ruzindana underscored.

Fabien Segatwa, a Burundian lawyer made the same remarks. The translations by most Rwandans of notions of time and space “are only rough estimates.”

It’s easy to see how such translations problems could negatively affect a trial, where accuracy is at a premium. Dr. Ruzindana’s discussion of an alibi is a perfect example: as O.J. has taught us, 15 minutes can be the difference between a conviction and an acquittal. Moreover, judges and juries alike tend to judge the credibility of a witness by examining the internal structural consistency of a witness’s testimony – a far more difficult task when relationships of time and space are expressed generally.

Because of these (and other) translation problems, the fairness of an ICTR trial will often hinge on the quality of interpreters employed by the tribunal. So it’s not surprising that defendants have often complained that a witness’s testimony had been imprecisely translated – damningly so. In Akayesu, for example, the defendant complained that the interpreters had been translating different Kinyarwanda expressions relating to sexual relations simply as “rape.”

The terms gusambanya, kurungora, kuryamana and gufata ku ngufu were used interchangeably by witnesses and translated by the interpreters as “rape”. The Chamber has consulted its official trial interpreters to gain a precise understanding of these words and how they have been interpreted. The word gusambanya means “to bring (a person) to commit adultery or fornication”. The word kurungora means “to have sexual intercourse with a woman”. This term is used regardless of whether the woman is married or not, and regardless of whether she gives consent or not. The word kuryamana means “to share a bed” or “to have sexual intercourse”, depending on the context. It seems similar to the colloquial usage in English and in French of the term “to sleep with”. The term gufata ku ngufu means “to take (anything) by force” and also “to rape”. The context in which these terms are used is critical to an understanding of their meaning and their translation… The Chamber notes that the accused objected on one occasion to the translation of the words stated by Witness JJ (“Batangira kujya babafata ku ngufu babakoresha ibyo bashaka”) as “They began to rape them.” It was clarified that the witness said “they had their way with them.” The Chamber notes that in this instance the term used, babafata ku ngufu, is the term which of the four terms identified in the paragraph above is the term most closely connected to the concept of force. Having reviewed in detail with the official trial interpreters the references to “rape” in the transcript, the Chamber is satisfied that the Kinyarwanda expressions have been accurately translated.

In this situation, the tribunal was most likely correct. Translation problems, however, continue to haunt the ICTR – and, if anything, will be even more acute for the ICC, which has judges that speak many different languages and genuinely global jurisdiction.

See Goldsmith, Scalia, Yoo, et. al. – February 21 at the American Enterprise Institute

by Julian Ku

Two of America’s leading scholars of foreign relations law, John Yoo and Jack Goldsmith, are co-hosting a day-long conference on Tuesday, February 21 at the American Enterprise Institute in Washington D.C (see here for registration details). The conference, entitled the “The Outsourcing of American Law” will feature Justice Antonin Scalia as the keynote speaker (gee, what do you think he is going to talk about?).

In addition to Goldsmith and Yoo (who represent quite different approaches actually, if you believe Time Magazine), the conference will feature top scholars in the field like William Dodge, Beth Stephens and Kenneth Anderson as well as leading blog personalities Tom Goldstein of SCOTUSBlog.

Oh yes (and you knew this was coming!), the conference will also feature yours truly speaking on the first panel about the status of customary international law in domestic courts. Now I know many of our readers live and work in D.C. I hope to see some of you there!

Outraged Moderates and DoD Notes from 9/11

by Chris Borgen

Thad Anderson of (and a St John’s Law student) has posted documents released under a Freedom of Information Act request he had made which include notes of DoD staffer Steven Cambone from meetings with Donald Rumsfeld on the afternoon and evening of September 11, 2001. Cambone’s notes were cited by the 9/11 Commission and by CBS.

Anderson explains:

The released notes document Donald Rumsfeld’s 2:40 PM instructions to General Myers to find the “[b]est info fast . . . judge whether good enough [to] hit S.H. [Saddam Hussein] at same time – not only UBL [Usama Bin Laden]” (as discussed on p. 334-335 of The 9/11 Commission Report and in Bob Woodward’s Plan of Attack).

In addition, the documents confirm the contents of CBS News’ Sept. 4, 2002 report “Plans For Iraq Attack Began on 9/11,” which quoted Rumsfeld’s notes as stating: “Go massive . . . Sweep it all up. Things related and not.” These lines were not mentioned in the 9/11 Commission Report or Woodward’s Plan of Attack, and to my knowledge, have not been independently confirmed by any other source. After the Rathergate fiasco, I wondered if CBS had been fooled into publishing a story that, from a publicity perspective, seemed too good to be true.

Finally, these documents unveil a previously undisclosed part of the 2:40 PM discussion. Several lines below the “judge whether good enough [to] hit S.H. at same time” line, Cambone’s notes from the conversation read: “Hard to get a good case.”

Links to the released documents are available at the OutragedModerates site.

Italian Court: Suicide Bombings Directed Against US Soldiers Not Terrorism

by Kevin Jon Heller

In a decision bound to upset the US government and most Americans, an Italian appellate court has upheld a lower court’s acquittal of three North African men accused of recruiting suicide bombers to attack US soldiers in Iraq. The men had been charged with international terrorism, a crime adopted in Italy following 9/11. The appellate court ruled that, in the context of an armed conflict, suicide bombings directed against the armed forces of one of the parties to the conflict represent guerrilla warfare, not terrorism; such bombings are terrorist acts only when directed against civilians.

The AP describes the appellate court’s decision as indicative of “the frequent failure by prosecutors in Italy to win cases against terror suspects.” Nevertheless, the horrific nature of the acts in question notwithstanding, it’s unclear whether the decision is incorrect. As Philip Carter has pointed out with reference to the infamous attacks on the four civilian contractors in Fallujah,

The Iraqi guerillas define themselves as freedom fighters fighting an unjust occupation. If the Iraqi insurgents can be categorized in some way as combatants, then they are entitled to lawfully kill in wartime just as American soldiers can. Essentially, this doctrine of “combatant immunity” allows soldiers to kill in war as a form of justifiable homicide.

Obviously, American and Iraqi authorities have branded the Iraqi insurgency a criminal — and indeed, terrorist — enterprise, and branded its acts unlawful as a result. But there is at least a colorable argument that there should be combatant immunity on the part of the Iraqi insurgents.

Indeed, the US Defense Department’s definitions of “guerrilla,” “insurgent,” and “terrorist” seem to indicate that the Iraqi suicide bombers are guerrillas (or insurgents), not terrorists:

Doctrinally, we (DoD) define terrorism as “the calculated use of violence or threat of violence to inculcate fear; intended to coerce or to intimidate governments or societies in the pursuit of goals that are generally political, religious, or ideological.”

Doctrinally, we (DoD) define insurgency as “an organized resistance movement that uses subversion, sabotage, and armed conflict to achieve its aims. Insurgencies normally seek to overthrow the existing social order and reallocate power within the country. They may also seek to: (1) Overthrow an established government without a follow-on social revolution; (2) Establish an autonomous national territory within the borders of a state; (3) Cause the withdrawal of an occupying power. (4) Extract political concessions that are unattainable through less violent means.”

Doctrinally, guerrillas are the “overt military aspect of the insurgency.” They exist alongside their counterparts, the auxiliary and the underground.

On the other hand, the Italian Penal Code’s current definition of terrorism — obviously the only relevant definition here — does not seem to categorically exclude branding suicide bombings directed at US soldiers as terrorism:

The definition of terrorism in Article 270 bis of the Italian Penal Code has been widened by Law 155/2005, which came into force on 2 August 2005, and includes promoting, constituting, organising, managing or financing organisations which intend to carry out violent activities, or assisting any individual (excluding a close relative) who participates in such organisations. It also includes enrolling or training individuals to carry out violent activities if, in view of their nature or context, such activities might cause grave harm to a country or international organisation, and are intended to intimidate the population or to constrain the powers of the state or international organisations to carry out or not carry out any activity, or to destabilise or destroy fundamental political, constitutional, economic and social structures of a country or of an international organisation. This includes foreign states and international organisations or institutions. This definition is in addition to other acts defined as terrorism or as carried out for terrorist purposes in international conventions or laws to which Italy is bound.

The basic question, I imagine, is whether attacks on US soldiers — as opposed to Iraqi soldiers — satisfy Article 270, given that (1) the US military is clearly not part of Iraq’s political, constitutional, economic, or social structure; and (2) the US military is probably not an “international organization” for purposes of the Article. If such attacks to do not satisfy Article 270, the appellate court’s decision is most likely correct.

In the end, I am simply not competent to pass judgment on the merits of the decision. I am not an expert in Italian substantive criminal law, nor have I read the decision itself. If there are any Italian readers of Opinio Juris who know more about the issue, their thoughts would be most welcome.

UPDATE: Lorenzo Zucca, who blogs at the always interesting Transatlantic Assembly, notes that the Italian Court of Cassation will review the decision. He says that the appeal will apparently focus on the appellate court’s conclusion that “only acts exclusively directed against the civilian population” qualify as terrorism. That makes sense, given that a civilian population does not lose its protected status under the Geneva Conventions simply because there are soldiers in its midst. A better rule, therefore, might be that although a suicide bombing that is exclusively directed at soldiers does not qualify as terrorism, a suicide bombing that targets soldiers but also injures or kills civilians does.

Zucca’s post is here.

Geoffrey Corn on the New Abu Ghraib Photos

by Roger Alford

I have solicited the thoughts of Prof. Geoffrey Corn, a law of war expert and former guest blogger at Opinio Juris, on the latest Abu Ghraib photos. Here’s his take on the release of the new photos:

On Wednesday, a new batch of Abu Ghraib photographs hit the press. The world is once again reminded of the “shocking and awful” abuse endured by the detainees entrusted to the control of the U.S. Army. While these photos will no doubt reinforce all the negative impressions created by the criminal abuse inflicted on these detainees, they also reinforce two important lessons (which no matter how often learned, seem to just as often be forgotten) about the role of law in war: that respect for the law of war is indelibly linked to maintaining good order and discipline; and that violations of this law can never justify compromising the commitment to subsequent compliance.

The first reality – that compliance with the law of war is linked to a professional and well-disciplined force – is reflected in what I would posit was the reaction of most professional warriors when they viewed these photos: revulsion to the overt manifestation of a total breakdown of discipline. Pity for the victims is no doubt appropriate. But for members of the profession of arms, it is the symbol of arbitrary, immoral, and abusive behavior of American soldiers that is fundamentally inconsistent with what our armed forces are supposed to represent.

The intuitive understanding that the activities of these soldiers reflected a quintessential breakdown of discipline confirms the relationship between the law regulating the conduct of war and a professional and disciplined force. Abu Ghraib must serve as a powerful reminder to all those who serve in uniform – and those who establish policy for them – that in the brutal and dangerous realm of warfare, the law of war provides a barrier between the necessary infliction of harm associated with conflict and the devolution into the unacceptable realm of the infliction of suffering for personal and often perverse reasons. Emphasis of this bright line distinction, particularly during the most brutal phases of an operation, is essential to the preservation of discipline – the “but for” of an effective fighting force.

The second reality is that the breach of the obligation to respect the law of war in no way justifies subsequent non-compliance. Indeed, if this law is to have any meaning, the exact opposite must be the reality. This lesson is much more subtle in relation to the release of these photos, but is also intertwined with the ongoing effort of the ACLU to obtain release of additional Abu Ghraib photos. The ACLU and the Australian television network that released these latest photos share a common purpose: to maintain public interest in the Abu Ghraib story. Many observers applaud these efforts, and are quick to condemn the government for opposing the requested release. However, a review of the photos released Wednesday warrants consideration of a fundamental question: what have we learned from those photos that we did not already know?

If the answer to that question is “a great deal”, then perhaps the continued humiliation of the victims of the abuse is justified. However, if the value lies not in new information, but in simply prolonging the public interest in the story, every observer troubled by the denigration of human dignity that occurred at Abu Ghraib should carefully contemplate whether the benefit truly justifies the cost.

Regardless of how this question is resolved, it does suggest that the ongoing government opposition to release of additional photos might in fact be justified by an effort to mitigate the suffering inflicted on these victims. Reasonable minds can certainly differ on the technical rules related to protecting detainees from public curiosity. (See Corn Declaration, Cummings Declaration, Sassoli Declaration, and Horton Declaration). However, the obligation of the U.S. government and the armed forces to respect the law of war, and more specifically the principle of humane treatment, is in no way modified because of the prior violations that occurred at Abu Ghraib. Instead, ever greater commitment to compliance is the proper response. Therefore, while it is fair to question the cost/benefit analysis associated with opposition to releasing additional photos, there is no justification for condemning government efforts to ensure future compliance with the principle of humane treatment. Characterizing such efforts as an exercise in hypocrisy ignores the complexity of this issue.

What transpired at Abu Ghraib was awful. Soldiers engaged in criminal misconduct, and were properly tried, convicted and punished. Serious questions linger related to the scope of the disciplinary effort, and the causal connection between government policies and the abuse. These questions must be resolved with some legitimate sense of finality and credibility. The prospect of Abu Ghraib being perpetually associated with the type of lingering taint related to the response to the My Lai investigations and prosecutions is unacceptable. It is understandable that proponents of such a resolution believe the continued public interest likely to result form the release of additional photos will contribute to their efforts. The question is at what point do the ends cease justifying the means?

Intellectual Property and Internet Watermarks

by Roger Alford

IBM Research is doing some amazing work on protecting the intellectual property of Internet images through watermarks. The purpose of the watermark is to provide a secondary image which is overlaid translucently on the primary image that can be used to protect intellectual property or to provide authentication and validation of images. For example, this top image has embedded within it an invisible watermark (the image below) that identifies its origins. You can also use visible watermarks. For an example of a visible watermark, click here.

Primer on "The Great Firewall of China"

by Roger Alford

Robert McMahon at the Council on Foreign Relations has a nice primer on Chinese efforts to curtail political speech. The post includes a discussion of how China does it, what role U.S. firms play in the process, how important the Internet is to China, whether Congress is planning any action, and technological efforts to bypass the censorship through proxy servers. Check it out.

Can We Force-Feed Saddam?

by Julian Ku

This and other very interesting questions are being discussed over at the Grotian Moments. (By the way, the answer appears to be yes, as long as certain guidelines are followed).

The Lumber Trade Fight, Round XVIII (I’ve Lost Count)

by Julian Ku

Canada appears to have lost a round in the never-ending dispute over U.S. duties on softwood lumber. A WTO panel has ruled that U.S. duties do not violate WTO obligations. Canada’s view, of course, is that the U.S. duties do violate WTO obligations, in part because they also violate NAFTA obligations. Essentially, the U.S. has consistently lost in the NAFTA tribunals, but has consistently won in the WTO cases. Technically this shouldn’t matter since each treaty represents a different set of trade obligations. But the fact that the WTO is fine with the U.S. duties does lend some intellectual support to the U.S. position. All of this confusion and uncertainty suggests litigation here is becoming a collossal waste of time and money. Ironically, the various litigation venues has impeded a deal in this case. Someone end the madness and settle this dispute.

The UN Human Rights Commission Finally Releases "Draft Report"

by Julian Ku

After a few days of selective leaking drafts of their report to major news outlets, the Special Rapporteurs of the U.N. Commission on Human Rights have finally released their report on the situation in Guantanamo Bay.

As I suggested earlier, the report sounds impressive, but it doesn’t add a whole lot to the existing debate. It provides no new facts or new allegations. The investigators did not visit Guantanamo Bay (they refused an invitation because they wanted more access to the detainees) and it mostly rehashes news reports and other public information about Guantanamo. It accepts uncritically pretty much every accusation made against Guantanamo, despite U.S. government denials, in coming to its final recommendation that Guantanamo should be shut down.

The report is useful, however, in highlighting the difference in legal analysis and worldviews between the U.N. human rights community and the U.S. government. The UNCHR report concedes there is a military conflict going on, at least in the U.S. actions in Afghanistan, but it goes ahead and demands that the U.S. apply all of the protections under the International Covenant on Civil and Political Rights (ICCPR) to anyone detained in this conflict. This is a remarkable position, given that the ICCPR requires rather broad judicial protections similar to U.S. criminal procedure rights for civilians. Under the UNCHR’s view, the U.S. must treat its detainees with essentially the same rights as civilians, which is far more than they would get if they were detained as prisoners of war. The UNCHR doesn’t really recognize the possiblity of an “unlawful combatant” and even if they did, such a combatant would get all of the rights of a civilian.

What’s odd about this analysis, as the U.S. points out, is that if you violate the laws of war in attacking a U.S. soldier in Afghanistan, you automatically get all the rights of the ICCPR. If you follow the laws of war and are captured, you get none of those rights.

The UNCHR should have stuck to their strongest argument, which is the allegations of torture and degrading treatment at Guantanamo in violation of the Convention Against Torture as well as U.S. laws and policies. This is really should be the heart of the debate over Guantanamo, and not this attempt to import all of human rights law (including the “right to health”) into the discussion. That only undercuts the credibility of the special rapporteurs (which is not all that high to begin with).

The Iranian Democracy Fund and the Algiers Accords

by Roger Alford

The Washington Post is reporting that the United States is prepared to spend $75 million to promote democracy in Iran. According to the report, “the United States hopes to capitalize on the ‘disturbing trend of Iranian diplomacy’ since Ahmadinejad’s election, including the refusal to continue negotiations on the nuclear program…. [and that] the administration would press countries that have ties to ‘begin to think what they can do to push back against what has been a radical series of proposals out of the government of Iran.’ The officials sidestepped questions about whether the administration is seeking ‘regime change.'”

This is very welcome news. There is one small caveat. It may violate our international treaty obligations. There is a little-known provision in the Algiers Accords, signed by the United States and Iran on the closing days of the Iranian hostage crisis, that stipulates that “The United States pledges that it is and from now on will be the policy of the United States not to intervene, directly or indirectly, politically or militarily, in Iran’s internal affairs.”

Having worked as a law clerk with one of the American judges at the Iran-U.S. Claims Tribunal, I came to know the Algiers Accords quite well. Generally, this agreement works to the United States’ advantage, ensuring that our citizens have adequate judicial recourse before an international tribunal for Iranian breaches of contracts and unlawful expropriations arising out of the revolution. But not always.

This “internal affairs” provision is rarely litigated before the Tribunal. (There currently is pending before the Tribunal a claim that U.S. sanctions against Iran violates this “internal affairs” provision.) The provision was a condition the Iranians imposed on President Carter to avoid in the future what they perceived to be past meddling by the United States. In the final days of the Carter Administration in January 1981, the United States reluctantly conceded to this international obligation, hoping that it would never become an issue. I have heard one intimately knowledgeable about the drafting of the Algiers Accord concede that the provision was a non-negotiable requirement of Iran, and one that was most unwelcome to U.S. negotiators. It is a discredit to Carter that he ever acquiesced to such an open-ended provision, but there it is: a treaty obligation to never politically or militarily interfere in the internal affairs of Iran.

If the Iranian democracy fund goes forward (or if we respond militarily to a nuclear Iran), Iran could file a claim before the Iran-United States Claims Tribunal alleging that the action is a violation of the Algiers Accords. (Never mind that the Iranians have regularly violated the Algiers Accords, including the obligation to provide adequate funding to a security account reserved for American claimants appearing before the Tribunal). I doubt that the Tribunal would ultimately conclude that there was a violation, but it is not outside the realm of possibility.

At a minimum, the treaty obligation will somewhat constrain the traditional freedom the United States otherwise has in conducting international relations.

Germany Disarms Itself Against September 11 Attacks

by Julian Ku

Germany’s Constitutional Court has invalidated a law that would have permitted the German government to shoot down a hijacked plane if that plane was being used as a weapon endangering other people, like in the September 11 attacks. The Court found that the German law “infringed the right to life and human dignity” guaranteed by the German equivalent of a constitution.

I haven’t read the decision (which is in German and can be found here), but based on the BBC’s description of the decision and the Court’s English language summary, the Bundesverfassungsgericht’s decision seems almost indefensible. The law would have guaranteed civilian control over any decision to fire on an hijacked airliner. It would have required that decision to be the last resort of any government. Yet, apparently, the German government has no right to take the lives of the hijacked airline passengers to save the lives of others.

Here is the Court’s English summary of its analysis of why the law violates the “right to human dignity.”

2. § 14.3 of the Aviation Security Act is also not compatible with the right to life (Article 2.2 sentence 1 of the Basic Law) in conjunction with the guarantee of human dignity (Article 1.1 of the Basic Law) to the extent that the use of armed force affects persons on board theaircraft who are not participants in the crime.The passengers and crew members who are exposed to such a mission are in a desperate situation. They can no longer influence the circumstances oftheir lives independently from others in a self-determined manner.

This makes them objects not only of the perpetrators of the crime. Also the state which in such a situation resorts to the measure provided by §14.3 of the Aviation Security Act treats them as mere objects of its rescue operation for the protection of others. Such a treatment ignores the status of the persons affected as subjects endowed with dignity andinalienable rights. By their killing being used as a means to save others, they are treated as objects and at the same time deprived oftheir rights; with their lives being disposed of unilaterally by thestate, the persons on board the aircraft, who, as victims, are themselves in need of protection, are denied the value which is due to ahuman being for his or her own sake. In addition, this happens under circumstances in which it cannot be expected that at the moment in whicha decision concerning an operation pursuant to § 14.3 of the AviationSecurity Act is taken, there is always a complete picture of the factual situation and that the factual situation can always be assessed correctly then.

Under the applicability of Article 1.1 of the Basic Law (guarantee of human dignity) it is absolutely inconceivable to intentionally kill persons who are in such a helpless situation on the basis of a statutory authorisation.

The assumption that someone boarding an aircraft as a crew member or as a passenger will presumably consent to its being shotdown, and thus in his or her own killing, in the case of the aircraftbecoming involved in an aerial incident is an unrealistic fiction.. Also the assessment that the persons affected are doomed anyway cannot remove from the killing of innocent people in the situation described itsnature of an infringement of these people’s right to dignity. Human lifeand human dignity enjoy the same constitutional protection regardless ofthe duration of the physical existence of the individual human being.The opinion, which has been advanced on some occasions, that the persons who are held on board have become part of a weapon and must bear beingtreated as such, expresses in a virtually undisguised manner that thevictims of such an incident are no longer perceived as human beings. The idea that the individual is obliged to sacrifice his or her life in theinterest of the state as a whole in case of need if this is the onlypossible way of protecting the legally constituted body politic from attacks which are aimed at its breakdown and destruction also does notlead to a different result. For in the area of application of § 14.3 of the Aviation Security Act the issue is not the defence against attacks aimed at abolishing the body politic and at eliminating the state’s legal and constitutional system. Finally, § 14.3 of the AviationSecurity Act also cannot be justified by invoking the state’s duty to protect those against whose lives the aircraft that is abused as a weapon for a crime is intended to be used. Only such means may be used to comply with the state’s obligations to protect as are in harmony withthe constitution. This is not the case in the case at hand.

I understand that there are very complex moral and philosophical questions involved here. Can you take a life to save a life? But although this is an agonizing option, it is not an option that should be ruled out of hand unconstitutional before any particular circumstance arises. That only invites the likelihood of someone trying out this or other tactics.

Maybe I’m missing something or maybe I’m too Americanist in my thinking. If President Bush had ordered the downing of the two planes heading for the World Trade Center on September 11, I think it could have been morally justified. I certainly don’t think it would be unconstitutional. But I look forward to hearing from folks about why I’m wrong.

Damning Evidence Against Saddam

by Kevin Jon Heller

The Australian Broadcasting Corporation is reporting that prosecutors in Saddam Hussein’s trial have produced written orders allegedly signed by Saddam ordering the execution of 140 Shiites in Dujail in 1982. If so, the evidence provides the first concrete link between Saddam and the executions; although numerous witnesses have described how Iraqi ‘s security forces killed the Shiites in “response” to a failed assassination attempt against Saddam, none were in a position to know whether the executions were ordered by Saddam himself.

French Court Strikes Down Pro-Colonialism Law

by Kevin Jon Heller

On a (somewhat) lighter note, France’s Conseil Constitutionnel has struck down a provision in a 2005 law that required history teachers to stress the “positive aspects” of French colonialism. The Council, which was established in 1958 and is responsible for reviewing the consistency of Acts of Parliament with the Constitution, held that the enacting the provision was outside competence of the legislature.

The 2005 law, ironically enough, was intended to recognize the contribution of the “harkis,” the 200,000 or so Algerians who fought alongside French colonial troops in Algeria’s war of independence before being abandoned when the French withdrew from Algeria. About 130,000 of the harkis were later executed as traitors.

The provision was immediately assailed by historians, writers, and intellectuals, more than 1,000 of whom signed a petition demanding its repeal. One eminent French historian likened it to the Japanese government’s approach to the Sino-Japanese war:

In Japan, a law defines the contents of history lessons, and textbooks minimise Japan‘s responsibility in the Sino-Japanese war. If France wants to be like that, it’s going the right way about it.

The provision is not, however, the first or only example of a law dictating how certain periods of French history should be taught. A 1990 law outlaws denial of the Holocaust, and a 2001 law requires the slave trade to be described as a crime against humanity.

Outsourcing International Criminal Justice: Norway Fills in for Rwanda Tribunal

by Julian Ku

Norway has agreed to try a suspect accused of participating in the 1994 Rwanda genocide. Norway will try the Rwandan Hutu Michel Bagaragaza in its own courts, accepting a request by the International Criminal Tribunal for Rwanda (the ICTR), to take over for the backlogged court. Bagaragaza, a former tea industry leader, is accused of organizing his employees to massacre Tutsis.

I haven’t been following the ICTR, but it is apparently seriously backlogged and it must finish up by 2008. So this move makes some practical sense. Choosing Norway makes somewhat less sense. The obvious place to try Mr. Bagaragaza is Rwanda, but the ICTR won’t turn him over unless Rwanda pledges not to impose the death penalty. I applaud the high principles of the ICTR, but the maximum under Norwegian law is only 21 years. That seems way too low for someone convicted of mass genocide.

"Google Bombing" Ahmadinejad and Radical Islam

by Roger Alford

Today we learn that Islamic fundamentalists are burning fast-food restaurants in Pakistan to protest the Danish cartoons. It is hard to ever feel sorry for McDonalds, but I do today. I checked the McDonald’s menu for Pakistan, including the “McArabia,” and could not find anything that was particularly offensive to the Prophet. I guess it was the cheese Danishes.
Meanwhile, the Iranian dissident Hossein Derakhshan over at proposes a more peaceful, digital protest against Ahmadinejad and radical Islam. It is called “Google bombing.” A Google bomb is “a certain attempt to influence the ranking of a given page in results returned by the Google search engine. Due to the way that Google’s PageRank algorithm works, a page will be ranked higher if the sites that link to that page all use consistent anchor text. A Google bomb is created if a large number of sites link to the page in this manner.” Read the whole entry on Wikipedia for popular examples.

Here is Hoder’s proposal: “I’m thinking of organizing something such as a collective visit by Iranians abroad to Holocaust museums around the world, or ask anyone who disagrees with Ahmadinejad’s denial of systematic killing of Jews by Nazis to link to a speceifc page about Holocaust. The latter is called Google bombing and is known as a common way to protest online…. There is no bigger threat to Iran’s national security … than Ahmadinejad.”

I think Hoder’s idea of “Google bombing” Ahmadinejad as a way to protest his radical Islamic beliefs is a very interesting idea. Anyone who types in the word “Ahmadinejad” in Google would then get a particular site that highlights his Holocaust denial and his radical ideology. I will keep you informed if anything develops.

UPDATE: It has come to my attention that if you type in the phrase “Hamas Party” in Google the top link is my post on “The Hamas Party Platform.” This is an example of how a popular post can have the unintended effect of a “Google bomb.” Currently the top post in a Google search for Ahmadinejad is an October 2005 BBC profile, followed shortly thereafter by an antiseptic Wikipedia profile and a positive June 2005 profile in Al Jazeera. All three are out-of-date, inaccurate, and make no mention of the current threat that he has become. By contrast, the top post for a Google search of his alternative spelling of “Ahmadinejah” is my post on the “The Madness of Mahmoud Ahmadinejah.” It is incomplete, but more accurately gives voice to the true threat that is Mahmoud Ahmadinejad.

Participatory Democracy and Customary International Law

by Roger Alford

Christiana Ochoa of Indiana Law School has just published in the University of Cincinnati Law Review an interesting article entitled, Towards a Cosmopolitian Vision of International Law. The article and an abstract is available on SSRN here. The article addresses Sosa and the role of the judiciary in establishing customary international law.

But it is Part VI that really caught my attention regarding participatory democracy in the formation and definition of CIL. Here is a taste:

The CIL of human rights, no less than treaty law, has direct effects on individuals. It sees them as the subjects addressed by those provisions that have attained the status of CIL. Unlike treaty law, though, there is no space in the traditional formulation of CIL for individual participation in the CIL formation process. As a result, there is currently an uncomfortable disjuncture in the CIL of human rights. Individuals are its subjects but are not seen as legitimate participants in its formation…. The traditional state-centric conception of CIL, at least within the CIL of human rights, is incongruent with models of participatory democracy.

Although I doubt that international law will progress toward genuine participatory democratic prescription of a CIL of human rights, she is right to identify the democratic concerns in the creation of CIL human rights law. But rather than criticize CIL as undemocratic, she identifies the judiciary as providing a key role in starting and informing dialogue among the citizenry. It is an interesting argument for the least-political branch–the judiciary–playing an essential democratic function in the formation of CIL. Democratic participation through human rights litigation, not the ballot box.

Not sure I agree, as ATS litigation is not exactly a vehicle for representative democracy which, in Robert Dahl’s language “inculcates among people of all walks of life a justifiable feeling that they have the power to participate in decisions which affect them.” But very interesting and worth a read.

Surprising Poll Numbers on Bush, the UN, and Iran

by Kevin Jon Heller

Given how unpopular the UN seems to be these days in the US, the results of a recent CNN/USA Today/Gallup poll question about Iran are rather surprising (courtesy of Think Progress):

How confident are you in the Bush administration’s ability to handle the situation in Iran?

  • Very or Somewhat Likely: 45%
  • Not Too Confident or Not At All Confident: 55%

How confident are you in the United Nations’ ability to handle the situation in Iran?

  • Very or Somewhat Likely: 47%
  • Not Too Confident or Not At All Confident: 51%

To be sure, the numbers likely reflect the toll that Iraq has taken on Bush’s credibility more than any new-found trust in the UN. As other polling questions suggest, Americans believe that Bush’s foreign-policy priorities are misplaced and that he is too quick to use military force:

How concerned are you that the U.S. will not do enough to prevent Iran from developing nuclear weapons?

  • Very Concerned or Somewhat Concerned: 67%
  • Not Too Concerned or Not Concerned At All: 30%

How concerned are you that the U.S. will be too quick to use military force in an attempt to prevent Iran from developing nuclear weapons?

  • Very Concerned or Somewhat Concerned: 69%
  • Not Too Concerned or Not Concerned At All: 30%

ECHR Decides Important Police Brutality Case

by Kevin Jon Heller

Though the news is a couple of weeks old, it’s worth calling attention to a unanimous decision by the European Court of Human Rights Court that the Russian Federation violated the European Convention on Human Rights by allowing local police to torture a Russian citizen, Aleksey Mikheyev, and by subsequently failing to adequately investigate his allegations of mistreatment. The court awarded Mikheyev €250,000 ($304,000) in compensation.

Mikheyev v. Russia is one of the most extreme cases in the short history of post-Soviet policing. On September 10, 1998, Mikheyev, a traffic cop, was arrested and charged with the rape and murder of a teenage girl whom he and a friend had given a ride. Mikheyev said he dropped the girl off at a bus stop near his flat and never saw her again. His friend, however, told the police he saw Mikheyev rape and kill the girl. (It later became clear that that the friend had been coerced into making the statement.) The police then extracted a written confession from Mikheyev by torturing him for nine days. Wires were attached to his earlobes and electric shocks administered, a police interrogation technique known informally as zvonok Putinu (“a phone call to Putin”).

On September 19, Mikheyev decided he could take no more. Left by himself for a moment, he broke free from the chair he was tied to and threw himself out of his cell window. He landed on a police motorcycle and broke his back, rendering him a paraplegic. Soon afterwards, the “murdered” girl turned up unharmed and said she had been staying with friends.

On September 21, 1998, a criminal investigation was opened into the Mikheyev’s fall from the window. The criminal proceedings were discontinued two months later, however, for lack of evidence. The case was subsequently reopened and closed numerous times. On September 5, 2002, the prosecution service discontinued the investigation, finding that no criminal offense had been committed. The case was then again reopened and closed a number of times.

Three years later, in 2005, two policemen who had participated in the questioning of the applicant on 19 September 1998 were prosecuted for mistreating Mikheyev. The police officers were convicted of abuse of official power associated with the use of violence. As of this date, however, the judgment is not yet final.

The Court vindicated Mikheyev on all counts. To begin with, the Court concluded that Russia had violated Article 3 of the Convention, which provides that “[n]o one shall be subjected to torture or to inhuman or degrading treatment or punishment.” The Court noted that throughout the official “investigation” Mikheyev had provided a consistent and detailed description of who had tortured him and how. He also had witnesses to support his allegations. Moreover, Russia had no plausible explanation of why, if he had not been tortured, he would commit try to commit suicide even though he knew he was innocent. Finally, the Court noted that there was evidence other detainees had suffered, or been threatened with, similar ill-treatment.

The Court also held that the deliberate ineffectiveness of Russia’s investigation violated Article 3. It noted, for example, that many investigative measures were carried out after a significant lapse of time – for example, the forensic report on Mikhevev’s injuries was dated more than five weeks after the alleged ill-treatment – and that there was a clear link between the officials responsible for the investigation and those allegedly involved in the torture. It also emphasized that that it took seven years for the case to reach trial.

Finally – and of critical importance to future cases – the Court dismissed Russia’s claim that Mikheyev’s failure to wait for the formal completion of its investigation barred him from bringing his case to the Court.

One can only hope that the ECHR’s decision will help deter future police and governmental misconduct in Russia. Mikheyev v. Russia, unfortunately, is only the tip of the iceberg; according to Amnesty International,

Incidents of torture and ill-treatment in prisons and detention centres throughout the Russian Federation as well as poor conditions there continue to be reported on a regular basis. Impunity remained the norm for serious human rights abuses in the context of the Chechen conflict, where authorities are implicated in the torture, abduction, secret detention and “disappearances” of civilians… Measures against human rights violations are seldom taken and as a rule police and army act within a climate of impunity… The Russian Federation is the only member state of the Council of Europe that still does not allow for the full publication of reports of the Council of Europe’s Committee against Torture.

Olympic Speedskating and Darfur

by Julian Ku

U.S. gold medalist Joey Cheek has announced he will donate all of his $25,000 award (from the U.S. Olympic Committee) to a foundation providing aid to children injured by the war in Darfur, Sudan. Cheek actually had a prepared statement, apparently drafted the night before his race. Talk about confidence! Still, his heart is obviously in the right place and his announcement is a nice reminder of how the Olympics could be about more than just medal counts and future commercial endorsements. It could also be about recognizing the interconnectedness of individuals across national boundaries – in this case, the connection is sports.

Cheek seems like an interesting guy. According to his bio website, “In his spare time, Cheek enjoys playing the guitar, producing movies with fellow skaters, Kip and Cory Carpenter, and online investing. After skating is over, he would like to attend law school and begin a successful law practice in his native North Carolina.” One of the coolest future lawyers out there.

Love, War, and Saint Valentine

by Roger Alford

Okay, you think the title is a stretch. But if you look behind the history of the holiday you may conclude that Valentine’s Day has less to do with love than war. Legend has it that under the reign of Roman Emperor Marcus Aurelius Claudius Gothicus (A.D. 214-270) (not the Marcus Aurelius played by Richard Harris in Gladiator, but it’s a good photo op), the Roman Empire was constantly at war, and in constant need of more soldiers. So what did Emperor Claudius II (his common appellation) do with his perennial shortage of men? He banished love from the empire. And in response Saint Valentine rose up in quiet revolt. For his rebellion Valentine was executed on February 14, 269, leaving a farewell note to the jailer’s daughter, whom he had befriended, signed, “From Your Valentine.”
Here is how one article describes it:

Another legend touts of a well loved priest called Valentine living under the rule of Emperor Claudius II. Rome was constantly engaged in war. Year after year, Claudius drafted male citizens into battle to defend and expand the Roman Empire. Many Romans were unwilling to go. Married men did not want to leave their families. Younger men did not wish to leave their sweethearts. Claudius ordered a moratorium on all marriages and that all engagements must be broken off immediately. Valentine disagreed with his emperor. When a young couple came to the temple seeking to be married, Valentine secretly obliged them. Others came and were quietly married. Valentine became the friend of lovers in every district of Rome. But such secrets could not be kept for long. Valentine was dragged from the temple. Many pleaded with Claudius for Valentine’s release but to no avail, and in a dungeon, Valentine languished and died. His devoted friends are said to have buried him in the church of St. Praxedes on the 14th of February.

More on the legend here, here and here. Somehow knowing the history makes me thankful not just for love, but also that our government demands only a few good men. They make war, so we can make … well, the best of it on this holiday.

Happy Valentine’s Day.

Bolton on the UN Human Rights Commission

by Kevin Jon Heller

I completely agree with Julian’s dire assessment of the UN Human Rights Commission. But before we get too carried away lauding the U.S.’s reform efforts, it’s worth noting that Ambassador Bolton’s most recent suggestion for “reform” is to guarantee all five permanent members of the Security Council permanent seats (presumably with veto power) on the new Human Rights Council, as well. Mark Leon Goldberg at the always informative Bolton Watch reports on the implications — and irony — of that proposal:

At the UN right now, negotiations are currently underway over the membership criteria and mandate for a new Human Rights Council that would replace a Human Rights Commission that had long ago become discredited for including such bastions of human freedom like Sudan and Libya. During these negotiations, Ambassador Bolton has made it clear that one of his principle goals at the moment is to secure the United States a seat on the Council. To that end, Bolton proposed that the five permanent members of the Security Council also be guaranteed seats on the Human Rights Council. This, of course, that means Russia and China would also be given free lifetime memberships to the club.

It’s unclear, however, how widely shared this view is among others in the administration. Earlier this week, for example, Deputy Assistant Secretary of State for International Organization Affairs Mark Lagon spoke to the Congressional Human Rights caucus on this issue and never brought up P-5 membership in his opening statement. For his part, Bolton articulated the merits of P-5 membership in great detail at a press briefing attended by yours truly a couple of weeks ago.

I happen to agree with Bolton’s broader point that having the US on the Human Rights Council will make it a stronger body. But if the only way to guarantee US membership is by extending an offer to China and Russia than its hard to see how the new council can be much of an improvement over the current discredited Human Rights Commission. Not withstanding China’s own horrible human rights records, they—as opposed to the US—are far more willing to defend at the United Nations unsavory regimes who routinely abuse their own citizens. A lot of the inaction over Darfur at the UN, for example, stems from the fact that China buys a lot of oil from Sudan (and to a lesser extent, because Russia sells a lot of advanced weaponry to them).

Presumably, Bolton fears that if the US is excluded from the Council, it will just be another forum that countries can use to vent their anti- Americanism. Still, it’s hard for me to see how, exactly, that this is much of a threat to American interests. Other countries can complain till their blue about rendition, torture and Guantananmo, but that hasn’t changed our behavior at all. Really, the only influence that the Council is likely to be able to yield will be over countries like Zimbabwe, Burma or any number of sub-equatorial countries that are weak enough to have to respond to demands made by the United Nations.

Bolton sees US membership on the new Council as an end itself in the negotiations. If that remains the case as the negotiations continue, and P-5 membership is guaranteed, then the new council will just mirror the bad old days when countries sought membership for the sole purpose of avoiding condemnation over their own human rights practices.

The (U.S.) Consensus on Reforming the U.N. Human Rights Commission

by Julian Ku

Speaking of the semi-ridiculous U.N. Human Rights Commission, I somehow missed this statement last week from the U.S. criticizing the existing proposal to reform the Commission. Talk about an easy position to develop. The U.S. is holding out for a new Human Rights Council that will have human rights standards for nations sitting on the new council. That appears to be too much for the delegates so far. The whole thing will be voted on by May so this is the crucial negotiating time.

Curiously, conservatives like the folks at National Review are very interested in the outcome of this battle, even though they often deride the U.N. as useless. This suggests, contrary to typical thinking about U.S. politics, that the U.S. conservatives are not anti-U.N. They are just against this particular version of the U.N. And with respect to the Human Rights Commission, there seems to be no serious division between liberals and conservatives, between Human Rights Watch and National Review. So that’s something, at least.

Request for Info on Hiring of New and Lateral International Law Professors

by Roger Alford

I am compiling a list of all the new and lateral international law professor hires for the coming academic year. If you have information please email me and I will include it in the list. (You can find my email on my profile to the right).

In your email please include the new institutional affiliation, the name of the professor, specializations (if known), and the name of the former institution (or indicate “new professor” if applicable). Information on any law school anywhere in the world is welcome.

I will post the complete information in a couple of weeks.

The EU Pressures Serbia to Find Mladic

by Kevin Jon Heller

The U.S. media have done a decent job covering Serbia’s admission that hard-liners in its military are hiding war-crimes suspect General Ratko Mladic, wanted by the ICTY for allegedly orchestrating the 1995 massacre of 8,000 Muslim men and boys from Srebrenica. There has been relatively little coverage, however, of a particularly interesting aspect of the story: the European Union’s threat to suspend talks with Serbia regarding membership in the EU if it does not find Mladic and turn him over to the ICTY. The strategy appears to be working: after weeks of denying any knowledge of Mladic’s whereabouts, Serbia not only admitted the military-Mladic link, it began investigating the officers involved, formed a central authority to pool information gathered by the civilian Security-Information Agency and the army’s military security and intelligence agencies, and appointed a highly-respected local prosecutor to serve as an intermediary between the Serbian intelligence agencies and the ICTY. Moreover, a few days ago Serbia arrested a former army officer believed to have helped Mladic evade capture.

This is the second time the EU has used the possibility of membership to coerce a reluctant state to get serious about apprehending one of its war criminals. A similar strategy motivated Croatia to begin looking for one of its war criminals, General Ante Gotovina. Gotovina was ultimately arrested by Spanish police in December, 2005, on the island of Mallorca. The ICTY credits Gotovina’s arrest to an extensive Croatian surveillance operation that monitored the fugitive general’s supporters and family members for much of last year.

The EU’s willingness to connect EU membership to cooperation with the ICTY is a very positive sign for international criminal law. In the aftermath of internal armed conflicts, tribunals such as the ICTY, ICTR, and ICC depend upon the cooperation of the war-torn state to identify, locate, and apprehend individuals responsible for international crimes. As the Serbian and Croatian examples indicate, however, such cooperation is rarely forthcoming – given that the perpetrators are often (if not usually) government officials or members of the military themselves, the state rarely has any incentive to do so. That’s where the EU comes in: to provide the incentive that is otherwise lacking. With EU membership – and the vast economic and political benefits that comes with it – potentially hanging in the balance, even the most reticent state has to think twice about stonewalling an international criminal tribunal.

U.N. Special Rapporteurs Find That Gitmo Violates International Law

by Julian Ku

Big surprise. The U.N. Human Rights Commission’s special rapporteurs investigating Guantanamo Bay has concluded that the U.S. is violating international treaties on human rights and torture in its treatment of detainees in Guantanamo Bay. This Latimes summary is not quite clear for the basis of the special rapporteurs’ conclusions, although it does note that the special rapporteurs have based their report almost entirely on interviews with detainees who were released from Guantanamo. The investigators rejected a U.S. offer to visit the prison claiming they would not have received sufficient access (it is worth reminding ourselves that the U.S. has no legal obligation to admit the U.N. investigators).

I don’t think this report will add much to the conversation about Guantanamo. This does not mean the policies they describe in Guantanamo are not troubling (they are), but this report does not appear to have any new information or access to any information more reliable than the press reports about Guantanamo. The rapporteurs, as I’ve pointed out before, have no particularly special qualifications in doing their work, nor do their opinions provide any greater evidence of what international law does or does not require.

Federal District Court Rejects VCCR Individual Rights

by Roger Alford

Last week a federal district court in Virginia issued an important decision in Bell v. True, available here, holding that the Vienna Convention does not create individual rights. Here is a key excerpt:

[T]he ICJ in LaGrand did not go so far as to hold that Article 36 of the Vienna Convention creates individually enforceable legal rights that a detainee may assert in a domestic criminal proceeding to reverse a conviction. However, a few years later in Avena, the ICJ explained that “what is crucial in the review and reconsideration process is the existence of a procedure which guarantees that full weight is given to the violation of the rights set forth in the Vienna Convention, whatever may be the actual outcome of such review and reconsideration.” Avena, 2004 I.C.J. at 65. Thus, Avena did hold that the United States has an obligation to permit detainees to raise Article 36 claims in our domestic courts. While Avena and, to a lesser degree, LaGrand support Bell’s contention that Article 36 of the Vienna Convention creates individually enforceable rights of consular notification, these ICJ decisions do not constitute binding precedent on domestic cases involving different parties. The statute of the ICJ states that its decisions have “no binding force except between the parties and in respect of that particular case.” Statute of the International Court of Justice, Article 59. “Just as I.C.J decisions are not considered binding precedent by the I.C.J, nor are they considered authoritative statements of international law in domestic courts.”…

In light of the LaGrand and Avena cases, the Supreme Court’s vague comments on whether Article 36 is individually enforceable, the State Department’s position on the issue, and the general presumption that international treaties do not confer individual rights, “[i]t remains an open question whether the Vienna Convention gives rise to any individually enforceable rights.” United States v. Minjares-Alvarez, 264 F.3d 980, 986 (10th Cir.2001). Indeed, one circuit has held that the Vienna Convention confers individual rights, other circuits have held that it does not, and still others have stated that it remains unclear. See United States v. Villa-Ortega, 2005 U.S. Dist. LEXIS 28234, at *11 (D.Kan.2005) (citing a Seventh Circuit case holding it does confer individual rights; First, Second, Fifth, and Sixth Circuit cases holding that it does not confer individual rights; and Third, Ninth, and Tenth Circuit cases stating that it is unclear). Because no clearly established federal law directs that Article 36 creates an individually enforceable right to consular access, it cannot be said that the Supreme Court of Virginia’s determination that it does not confer such a right is contrary to, or involves an unreasonable application of, clearly established federal law. Thus, I must deny relief on this claim.

Of course, it is anticipated that in two pending cases the Supreme Court will clarify whether the Vienna Convention creates individually enforceable rights. The cases of Bustillo v. Johnson and Sanchez-Llamas v. Oregon are scheduled for oral argument on March 29, 2006. The Supreme Court briefs in those cases have been submitted and provide much fodder for thought.

Law professors who argue in an amici brief (2005 WL 3530557), available here, that the Vienna Convention does create individually enforceable rights are David Sloss, David Bederman, Frederic Bloom, Erwin Chemerinsky, Sarah Cleveland, Constance De La Vega, William Dodge, Martin Flaherty, Greg Fox, Roger Goldman, Laurence Helfer, Ronald Slye, Beth Stephens, Michael Van Alstyne, Beth Van Schaack, David Weissbrodt, and Ingrid Wuerth.

Law professors who argue in an amici brief (2006 WL 259988), available here, that the Vienna Convention does not create individually enforceable rights are Paul Stephan, Samuel Estreicher, John Harrison, Julian Ku, John McGinnis, Mark Movsesian, Ruth Wedgewood, Mark Weisburd, Ann Woolhandler, and Ernest Young.

Julian has posted about these cases here and about law professor amici briefs here.

Progress on the Khmer Rouge Tribunal

by Kevin Jon Heller

The UN and the Cambodian government have set up an administrative office in Phnom Penh for the hybrid tribunal that will try former leaders of the Khmer Rouge, who are accused of murdering nearly 2 million people during the 1970s. The establishment of the office marks the transition from the planning stage to the actual functioning of the court, which will be known – easily breaking the record for the longest name of an international tribunal – as the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea.

According to the agreement between Cambodia and the UN, the Trial Chamber will have three Cambodian judges and two international judges, while the Appeals Chamber will have four Cambodian judges and three foreign judges. The judges should be elected within the next six months, with the first prosecutions intended to commence in early 2007. The tribunal will have jurisdiction over serious violations of Cambodian and international law committed between April 17, 1975, and January 6, 1979 – the period during which the Khmer Rouge was in power.

Only two Khmer Rouge leaders are currently in detention: Ta Mok, the former head of Cambodia’s south-western region known as “the Butcher”; and Kang Kek leu, known as Duch, the head of the notorious Tuol Sleng interrogation center. Both have been charged with genocide, war crimes, and crimes against humanity. The architect of the Khmer Rouge regime, “Brother Number One” Pol Pot, died in 1998, but other leaders, including ”Brother Number Two” Nuon Chea, former head of state Khieu Samphan, and former foreign minister leng Sary, are living free in Cambodia.

The three-year budget for the trials is about $56.3 million, $43 million from the UN and $13.3 million from Cambodia.

Shafer on Kristof on O’Reilly

by Roger Alford

In a piece on Friday, Jack Shafer at Slate echoes my criticism here and here of Nicholas Kristof’s attack on Bill O’Reilly. Here is a taste:

Don’t get me wrong. Bill O’Reilly deserves it in the shins—or even higher—at least two times a week. His bullying, grandstanding, and modern know-nothingism make him a plump target. But Kristof doesn’t want to engage or debate O’Reilly, he wants to embarrass him by playing dada games. Those whom the gods wish to destroy they first make a newspaper columnist. Most columnists start off with a bag full of ideas and endless energy. But the job begins to weigh on even the most talented journalist. He starts writing columns about columns he’s written, about his kids, or about the deaths of relatives. He composes columns as open letters to world leaders—or writes from inside their heads. He quotes cab drivers. His columns become more assertion than argument. Finally, he starts picking silly, protracted fights with other media machers. Kristof, a Times columnist since November 2001, can do better than this. If he’s run out of gas, why doesn’t he re-enlist as a reporter?


The Hazards of Olympian Baldness

by Roger Alford

Last week in this post I told you I would report on interesting CAS arbitration cases coming out of the Winter Olympics. Well, we already have one. The USA Today has reported that Zach Lund of the United States was suspended from the Olympics for using a hair replacement product that contained an agent that masks steroids. The arbitrators concluded that Lund was not a cheat, he was just … bald. And if you’re bald and use a hair replacement product, you better know what is in that product.

At a news conference he said, “After five years of checking [updates to the prohibited list] I got comfortable that I was taking a little harmless product that helps me keep my hair. . . . I didn’t understand something could be legal for five years, and then could be illegal. . . . That blows my mind.”

Despite the setback, Lund sounds like a class act. A former national champion, Lund said, “I know in the next four years I will prove I’m a true champion,” he said. “I’ve faced many hardships in my career and the reason I was on top is I overcame them. I will use this to build on and become stronger.”

I guess we now know a balding man must choose between a little hair or an Olympian dream. You can’t have both.

UPDATE: The CAS decision is available here.

Ahmadinejad on the Cartoon Controversy

by Roger Alford

For Iranian President Mahmoud Ahmadinejad it’s all about Israel. The cartoons were not an act of freedom, they were a desperate act of hostages. This week Ahmadinejad used the cartoon controversy to blame the United States and Europe for “being hostages of the Zionists.” He then criticized the double-standard of the freedom to insult the prophet while imposing criminal sanctions on those who deny the Holocaust.

“I ask everybody in the world not to let a group of Zionists who failed in Palestine … to insult the prophet. Now in the West insulting the prophet is allowed, but questioning the Holocaust is considered a crime … We ask, why do you insult the prophet? The response is that it is a matter of freedom, while in fact they (who insult the founder of Islam) are hostages of the Zionists. And the people of the US and Europe should pay a heavy price for becoming hostages to Zionists.” (Link).

Punish the Zionist hostages, stop insulting the prophet, and don’t complain when I deny the Holocaust. Why am I not surprised?

Two Hundred Years of Reliance on Foreign Authority

by Roger Alford

Steven Calabresi and Stephanie Dotson Zimdahl have recently published in William & Mary Law Review an article on The Supreme Court and Foreign Sources of Law: Two Hundred Years Of Practice and the Juvenile Death Penalty Decision available at 47 William & Mary L. Rev. 743. An earlier version is available on SSRN here.

Here is the summary from their introduction:

Our analysis of the Court’s practice leads us to several conclusions. First, we believe that those political and journalistic commentators who say that the Court has never before cited or relied uponforeign law are clearly and demonstrably wrong. In fact, the Court has relied on such sources to some extent throughout its history. Second, the Court has cited foreign law with much more frequency in far more important constitutional cases as the Court has grown older and has increased significantly its use of such sources in striking down legislation only since Trop v. Dulles in 1958. The phenomenon that Justice Scalia complains about is thus a relatively new development. Third, the Court has tended to cite foreign law in some of its most problematic opinions, such as several of the concurring opinions in Dred Scott, and its opinions in Reynolds and in Roe v. Wade. This suggests that Justice Scalia is right to be wary of the Court’s movement in this direction. Fourth, the historical evidence suggests to us that citation of foreign law is most (if at all) justifiable when the U.S. Constitution asks the Justices to weigh whether a certain practice is reasonable, as it does in the Fourth Amendment, or whether it is unusual, as it does in the Eighth Amendment. In contrast, citing foreign law is least justifiable when the Court is asked to determine whether an unenumerated right is deeply rooted in American history and tradition, as was the case in Lawrence, or whether a federal statute violates historically unique American federalism rules, as it was asked to do in Printz v. United States. We suggest that in the overwhelming majority of non-Fourth and non-Eighth Amendment cases, it is inappropriate for the Court to cite foreign law. Citation of such law can, in fact, be a sign that the Court is falling into policymaking, as it did in Dred Scott, Reynolds, and Roe, and this, in turn, suggests that the Justices are behaving illegitimately. We thus substantially agree with the spirit, if not entirely all of the substance, of Justice Scalia’s warning against citing foreign law in most U.S. constitutional cases.

US Votes with Iran Concerning LGBT Groups

by Kevin Jon Heller

Strange bedfellows indeed. Yahoo News reports that the United States recently voted in favor of an Iranian initiative to deny UN consultative status to organizations working to protect the rights of lesbians, gays, bisexuals, and transgenders (LGBT).

In May, 2005, two LGBT organizations – the International Gay and Lesbian Association and the Danish National Association of Gays and Lesbians – applied for consultative status with the UN’s Social and Economic Council. Such status is the sole official means through which NGOs can participate in discussions at the UN between member states. Some 3000 groups enjoy consultative status. Led by Iran, a group of states moved to summarily dismiss the organizations’ applications, a nearly unprecedented event. The US first abstained on the vote to end debate over the applications, then voted to reject the applications themselves. The vote put the US in rather unsavory company: in addition to Iran, the other states voting to dismiss the applications were Cameroon, China, Cuba, Pakistan, the Russian Federation, Senegal, Sudan, and Zimbabwe. Chile, France, Germany, Peru, and Romania voted in favor of the applications; Colombia, India, and Turkey abstained. (Cote d’Ivoire was too busy with its internal problems to vote.)

The vote represents a complete reversal of US policy. As recently as 2002, the US voted to support IGLA’s request to have their status reviewed. It’s also an unfortunate reversal, given that the State Department’s recent “Country Reports on Human Rights Practices documents numerous examples of violence – actual and symbolic – against LGBT persons, including Iran’s use of the death penalty to punish male homosexual behavior and Zimbabwean President Robert Mugabe’s verbal lashing of homosexuals as ‘”people without rights’” and ”worse than dogs and pigs.” (Human Rights Watch documents more examples here.)

Why did the U.S. reverse course? According to the State Department – dusting off a right-wing shibboleth – because it’s afraid of pedophilia:

Edgar Vasquez , a State Department spokesman, said Friday: “The United States continues to implement a law requiring certification by the United Nations to prohibit funding of NGOs that condone pedophilia. The United States as a policy matter remains concerned about support for pedophilia, and we believe that ILGA must establish a verifiable process” to ensure that neither it nor its member organizations promote or condone pedophilia.

When questioned by a reporter from the Washington Blade, Vasquez admitted the United States opposed ILGA’s application because it once included the North American Man Boy Love Association as a member.

That group aims to legalize sexual relations between adults and minors; ILGA expelled it in 1994.

“In this case, we did not vote against the group because it was a gay rights group, but because of its past association with a group condoning pedophilia,” said Vasquez, referring to ILGA.

Vasquez claimed he did not know why the United States voted against the Danish group’s application.

Vazquez also didn’t explain the U.S.’s 2002 vote in favor of IGLA. In fact, according to the official UN Web site,

The representative of the United States, who said his government had sought the earlier suspension of the organization because of the pedophilia issue, said he had not seen any proof that the organization now condoned pedophilia. On the contrary, he saw evidence that the NGO was saving lives in the struggle against HIV/AIDS.

Interview with New ICJ President Rosalyn Higgins

by Julian Ku

Although she is not exactly getting lots of press coverage, new ICJ President Rosalyn Higgins took the opportunity to lay out some her views about the role of the court in this interview. The ICJ is preparing for one of its most difficult hearings next month involving Bosnia’s claim of genocide against Serbia and Montenegro. The case has been going on for, uh, 13 years which appears to embarrass Higgins.

Higgins sees the ICJ as a unique position, because it is the “primary judicial organ of the UN”, and because its pronouncements of international law or interpretation of treaties is “authoritative”. According to the article, Higgins is keen to maintain the way the court contributes to “the understanding and development of international law [through] high quality judgments” – and she stresses, the judges write “every word” themselves.

I actually think the ICJ’s influence on the development of international law is less important than Higgins suggests. The ICJ’s interpretations are not always “authoritative” and so its influence must stem from the credibility of the institution rather than from its raw judicial power. Moreover, there are many more international tribunals today than in the past, and none of those tribunals owe any obligation to defer to the ICJ’s interpretations of international law. It is the ICJ’s credibility is the real source of the ICJ’s power, and on this front, Higgins has a lot of work ahead of her.

Bechtel Abandons its ICSID Claim Against Bolivia

by Kevin Jon Heller

In an era in which transnational corporations have become wealthier and more powerful than many countries – GM alone is worth more than 120 – it’s easy to dismiss anti-corporate political activism as naïve, anachronistic, and doomed to failure. But that’s not always true. Case in point: the Bechtel Corporation’s recent abandonment of its claim against Bolivia in the World Bank’s secretive trade court, the International Centre for Settlement of Investment Disputes. Bechtel had sought at least $50 million in damages for profits it ostensibly lost when mass protest in Bolivia over skyrocketing water rates forced Aguas del Tunari, the Bechtel-controlled utility company that imposed the rate hikes, to close up shop. Instead of its $50 million, Bechtel agreed to damages in the amount of two bolivianos – 25 cents.

The seeds of the dispute were planted in 1997, when the World Bank informed Bolivia that it was conditioning additional aid for water development on the government privatizing the public water systems of La Paz and Cochabamba. In 1999, after a secret process with one bidder, Bolivia turned Cochabamba’s water over to Aguas del Tunari, a utility company whose majority owner was Bechtel. Within a few short weeks, Aguas del Tunari raised water rates by an average of more than 50%, far beyond what most poor families in Cochabamba could afford. The increases sparked a citywide rebellion that has become known simply as the “Cochabamba Water Revolt.” In response, the government declared martial law in the city and sent police and soldiers to quell the rebellion. Finally, after the army killed a 17-year-old boy and wounded more than a hundred others, Bechtel decided to pull Aguas del Tunari out of Cochabamba.

Eighteen months later, in November, 2002, Bechtel filed its $50 million claim with ICSID. The claim was not only for recovery of its lost investment, which amounted to less than $1 million, but also for the profit it claimed to have lost when Bolivia annulled Aguas del Tunari’s contract.

Bechtel’s suit was no more popular than the increase in water rates, largely because of ICSID’s lack of transparency and accountability. ICSID proceedings are closed to the public and press and the tribunal operates outside of national laws – the judges in each case define the applicable norms and procedures. Decisions by the tribunal are not appealable, and a country faces economic sanctions if it does not comply with its rulings. So after a petition to appear before ICSID filed by 300 organizations in 43 different countries was denied, activists took to the streets. Thousands sent e-mails to corporate executives. Protesters in San Francisco blocked the entrance of Bechtel’s corporate headquarters, and San Francisco’s Board of Supervisors passed a resolution calling on Bechtel to drop the case. Activists in DC protested at the home of the Bechtel executive in charge of its water division. Hundreds of articles and editorials were published world-wide.

Finally, Bechtel gave in and withdrew its claim. Sources say that Bechtel’s CEO, Riley Bechtel – weary of having his corporation painted as the poster-child for corporate greed – made the decision himself.

Although the case obviously represents a victory for the poor Bolivians in Cochabamba, its significance is far greater. In the past few years, the number of cases brought by transnational corporations in international commercial tribunals like ICSID has grown exponentially. Many of those cases involve challenges to laws and regulations taken by governments in developing countries to protect their citizens from the worst effects of globalization. Often, perhaps usually, those challenges are successful – witness ICSID’s ruling in May, 2005, that Argentina had to pay CMS Energy $133 million in damages for “expropriation and discriminatory treatment,” ostensibly resulting from the Argentine government’s conversion of energy tariffs from pesos to dollars during its 2002 peso devaluation.

But they are not always successful. Sometimes political activism can make a difference. And therein lies the victory over Bechtel’s true importance.

Chavez, Blair, and Invoking International Law

by Chris Borgen

Venezuelan President Hugo Chavez has spun up a tiff with Tony Blair in which the words “international law” are getting flung around a lot. To little effect. According to the BBC:

On Wednesday in the House of Commons, Mr Blair was asked by Colin Burgon, an MP from his Labour party, whether Britain should follow “a really right-wing US republican agenda” in relation to Venezuela.

“It is rather important that the government of Venezuela realise that if they want to be respected members of the international community they should abide by the rules of the international community,” Mr Blair replied.

“I also have to say with the greatest respect to the president of Venezuela that when he forms an alliance with Cuba I would prefer to see Cuba a proper functioning democracy.”

Mr Chavez, a close ally of Cuba’s Fidel Castro, retorted: “You, Mr Blair, do not have the morality to call on anyone to respect the rules of the international community.

“You are precisely the one who has flouted international law the most… siding with Mr Danger [George Bush] to trample the people in Iraq.”

The next day, Venezuela’s Vice Foreign Minister Pavel Rondon sent a letter to British Ambassador Donald Lamond which said that Venezuela categorically rejected Blair’s comments and noted that international law meant respect for the legality of other countries. CNN reports that the letter said:

“The serious distortion in his words in confusing ‘the rules of the international community’ with the norms and principles of International Law has not gone unnoticed by our government,” the letter said.

“This type of confusion has facilitated, permitted and induced the worst atrocities against the world’s peoples.”

I plan on writing more on this in the coming days but two quick comments fro the moment:

First, while the rhetoric is hot and the tit-for-tat ousting of diplomatic personnel by the U.S. and Venezuela is a (slight) escalation, for the moment what we still have here is essentially posturing for the domestic audience by Chavez. Oil sales are still proceeding between Venezuela and the U.S. and, until that comes seriously into question, I think what we have here is more an attempt to shore up domestic politics by Chavez as well as a bid for more regional political clout. Whether his rhetoric turns into more active attempts to frustrate American policies remains to be seen. (Actually, I think it probably will…)

Second, despite the ridiculous context of this spat with the British has actually brought up an interesting point: the disparity between what people think international law says versus what it actually says. For a humorous example, think of Roger’s post on the woman invoking the “International Court of Law” in relation to a spelling bee. On a less humorous side, see how Venezuela argues that it is the U.K. misstating International Law (though it is not clear what the actual miss-statement was) and thus Venezuela itself wraps its own actions—legal or otherwise—in the mantle of respectability.

I’ve been wrestling with whole issue of legal rhetoric versus political rhetoric (and how they effect the underlying substance of law and policy) in a couple of articles I am finishing up. I will post some more on this in the coming days and weeks.

Summary of WTO decision on GMO

by Roger Alford

Joel Tracthman of the International Economic Law and Policy Blog has a good summary of the GMO decision. I like the title: “From 800 pages to 1.” Check it out. Rob Howse also adds his thoughts here.

Also, I note with great enthusiasm the new list of contributors to that blog. They have recently added Joost Pauwelyn, Debra Steger, Chantal Thomas, Jeff Dunoff, Joanne Scott, Greg Shaffer, Todd Weiler, and Steve Charnovitz. It should be very interesting to see what they have to say.

Yet another serious, professional, high-class law blog. It underscores how academic blogging has become mainstream.

ICTR Acquits Two High-Ranking Rwandan Officials

by Kevin Jon Heller

The Appeals Chamber of the ICTR has unanimously upheld a Trial Chamber’s acquittal of Andre Ntagerura and Emmanuel Bagambiki, two high-ranking Rwandan officials, on charges of genocide and crimes against humanity. The charges stemmed from a series of massacres committed in Rwanda‘s Cyangugu Province in 1994 that killed more than 800,000 people, mainly Tutsis. The Trial Chamber held – unanimously, as well – that the prosecution had “failed to prove beyond reasonable doubt” that Ntagerura, a former transport minister, and Bagambiki, the former governor of Cyangugu Province, actively participated in the massacres. It also held that Bagambiki could not be held responsible for the acts of soldiers who killed Tutsis, because the prosecution had failed to establish the existence of a superior-subordinate relationship between him and the killers.

The ICTR Statute – like those of the ICTY and ICC – permits the prosecution to appeal an acquittal, reflecting the influence of the civil law on its rules of procedure. (Such appeals are obviously forbidden in the U.S. by the Double Jeopardy Clause, although in 1998 the Seventh Circuit affirmed an Illinois appellate decision permitting retrial of a defendant who bribed the judge presiding at his bench trial to acquit him.) The two grounds for appeal are an error on a question of law sufficiently serious to invalidate the decision and an error of fact that has resulted in a miscarriage of justice.

The acquittals, it’s worth noting, are rare events for the ICTR; since the Tribunal began work in 1994, 20 defendants have been convicted and five (including Ntagerura and Bagambiki) have been acquitted. Ntagerura is also the first minister-level Rwandan official ever acquitted by the Tribunal.

The Appeals Chamber’s decision has not been released yet, so I can’t comment on its legal merits. But the fact that the judges – trial and appellate – are taking seriously the prosecution’s burden of proof in cases as notorious as this one is a good sign both for the ICTR and for international criminal law generally. It’s difficult to imagine how a fair tribunal could ever have a perfect conviction record; given the factual and legal complexity of international crimes like genocide, not even the most conscientious investigators and prosecutors can avoid ensnaring at least a few defendants who are innocent or whose guilt cannot be proven beyond a reasonable doubt. After all, the Nuremberg Tribunal itself, with its overwhelming evidence of guilt, resulted in three acquittals.

Arbitrating Disputes at the Winter Olympics

by Roger Alford

With the Winter Olympic Games opening today in Torino, I thought you might be interested in knowing how athletic disputes arising during the Olympics will be resolved. Every Olympic Games has their share of legal disputes, and this year will be no exception.

Essentially disputes are resolved by an ad hoc arbitral body that is on call to immediately adjudicate any legal dispute. All or almost all national Olympic federations (and their athletes) agree in advance to Court of Arbitration for Sport (CAS) arbitration. The Court of Arbitration for Sport is based in Lausanne, Switzerland, headquarters of the International Olympic Committee. I actually teach a study tour each May that takes our students to London and Geneva (I know, tough life) and it includes presentations in Lausanne from the Secretary General and/or legal staff at CAS.

Of course, only the top of the arbitration profession gets this amazing gig. I happen to know several of the arbitrators who have done it in past years and their stories are quite amazing. They are on call day and night to resolve any dispute, but otherwise they are guests of honor at the Olympics.

The arbitration rules governing Olympic disputes are short, only 10 pages, and are available here under the Ad Hoc Rules tab. Any scholars interested in the subject can find a CAS bibliography of sports law here. Georgetown Law Library also has a nice Olympic and International Sports Law webpage here with good links. There also is a nice summary of the recent history of arbitrating Olympic disputes from the CAS webpage.

Many of the Olympic cases have involved doping, which is unlikely to be of particular interest to our readers. But if there are any interesting disputes arising from the Olympics I will try to post about them.

UPDATE: On Sunday Reuters published a nice story of the Court of Arbitration for Sport here that includes quotes from with CAS Secretary General Mattieu Reeb.

Videogames and the Red Cross (Updated)

by Kevin Jon Heller

Lest Roger win the competition for the most unusual story of the day, is reporting that the Red Cross has been contacting videogame developers to protest the use of its symbols in their games. Such use is widespread:

Just about every video game that involves combat uses the Red Cross symbol in some form or fashion. From medical kits and first-aid stations to ambulances, the familiar red cross is a universal symbol in real life and games for aid. Even MMORPGs like EverQuest use a red cross-type emblem to symbolize healing spells.

According to Michael Meyer, head of the British Red Cross’s international law section, “[t]he use of the emblem in videogames is both illegal and detrimental to the special protective value of the emblem.” The Red Cross has yet to file suit against a developer, and would prefer not to:

We would be willing to work with a videogame manufacturer to produce a game which shows the emblem in its correct use, as a symbol of protection during armed conflict, and where the player is rewarded for using the emblem correctly. Such a game could reward the player for respecting the rules of war and thereby, help the Red Cross Movement with its work to promote such respect.

As a (somewhat facetious) side note, I assume that, by “illegal,” the Red Cross does not mean that a videogame developer commits a war crime by using its emblem in a videogame. Article 8(2)(b)(vii)-4 of the ICC Statute, the war crime of improper use of distinctive emblems of the Geneva Conventions, prohibits using the red cross “for combatant purposes in a manner prohibited under the international law of armed conflict.” An essential element of the crime, however, is that “[t]he conduct took place in the context of and was associated with an international armed conflict.” Presumably, virtual conflicts don’t qualify — no matter how good the graphics.

UPDATE: Dave Glazier, a regular contributor to the must-read Intel Dump blog and a research fellow at Virginia’s Center for National Security Law, provides a much more detailed explanation of the potential criminal liability a videogame developer faces if it misuses the Red Cross emblem. I’ve edited his comment solely for readability:

[T]he video game use of the Red Cross is likely illegal in most countries, but it is national laws that are being violated, not the law of war per se. Article 27 of the 1906 Geneva Convention required state parties to enact legislation criminalizing use of the Red Cross emblem by anyone other than the ICRC and national Red Cross societies as a separate matter from the criminalization of the perfidious use of the emblem in time of war. In the United States this requirement was met through the enactment of what is now 18 U.S.C. 706, making such use punishable by six months in jail and a fine of up to $500. (Pre-existing commercial use of the red cross symbol was grandfathered, however, which is why Johnson & Johnson can continue to use the red cross on products it has manufactured for a century, but can not on new developments like liquid bandages). While nothing like the penalties a warrior might face for abuse of the red cross emblem on the battlefield, it still should get the attention of game developers who presumably are accustomed to at worst facing the prospect of civil suits over potential intellectual property infringement.

For those interested in exploring the topic further, an article published by the Red Cross itself is available here.

Pushing Back Against the ICC: U.S. Will Slash Military Aid to Bolivia

by Julian Ku

This IHT report suggests the U.S. is about to slash military aid to Bolivia by 96% in response to Bolivia’s failure to ratify agreements shielding U.S. soldiers from the jurisdiction of the ICC. The State Department suggests this is because of a U.S. law requiring such aid to be cut, but it is also truee that federal law allows the State Department to waive aid cuts if it chooses. As Bolivia has just elected a hostile new president, there seems little motivation for giving such a waiver.

Prosecuting Pirates: What Ever Happened to Universal Jurisdiction?

by Julian Ku

According to this CNN account, the Somali pirates captured last month by the U.S. Navy are challenging the jurisdiction of the Kenyan court that is planning to try them. The U.S. apparently turned over the suspects to Kenya. The pirates were captured in international waters, but as I pointed out here, any nation should still have jurisdiction to try such pirates under the UN Convention for the Law of the Sea. Indeed, nations used to claim universal jurisdiction over pirates, a concept that has been expanded to include violators of fundamental human rights. That idea has not yet been raised in Kenya, apparently, which is odd because if there is no universal jurisdiction for piracy, there is no universal jurisdiction for anything.

UPDATE: Reader Laurence Rothenberg emails me to point out that some scholars, like Prof. Rubin of Tufts, have questioned whether universal jurisdiction for piracy ever existed. Prof. Rubin has in fact published an entire book on this subject, The Law of Piracy. This is a good point, and calls into question the origins of the doctrine of universal jurisdiction.

The Transitional Justice Forum

by Chris Borgen

There’s a relatively new blog out there that I think Opinio Juris readers will find interesting and full of insight: The Transitional Justice Forum. The bloggers at TJF cover all sorts of topics on democratic transitions, post-conflict management, international criminal law, and other related areas. TJF’s bloggers are an impressive group including, among others, Mark Drumbl, Christopher Le Mon, William Schabas, and Ruti Teitel. Recent posts have spanned topics including the problems of the Iraqi special tribunal, conflict resolution in Uganda, why East Timor doesn’t want a tribunal, and Morocco’s truth commission. They also have links to full-text versions of transitional justice articles.

For anyone interested staying informed on democratization, post-conflict reconstruction, or transitional justice, TJF is a site you will want to check out regularly.

(Belated) Welcome to the blogosphere!

NAFTA Award in Thunderbird v. Mexico

by Roger Alford

Last week a NAFTA arbitration panel rendered an award in the case of International Thunderbird Gaming Corp. v. Mexico. The essential issue is whether an investment in certain gaming operations based on assurances given by Mexican authorities could give rise to a NAFTA claim when the government subsequently refused to permit such operations.

The key facts are as follows: A written request to Mexican officials for an opinion on the legality of the operations was submitted on August 3, 2000. (See para. 50). On August 15, 2000, these officials issued a formal response concluding that the proposed machines were skill machines and not gaming machines (i.e. slot machines). (See para. 55). Based on these assurances, Thunderbird made substantial investments. On October 10, 2001, the government declared the machines illegal “gambling equipment” and ordered closure of the facilities. So in short, the issue was if you receive an opinion letter from the government, and rely on it to your detriment, is there a remedy if the government subsequently prohibits activities pursuant to that investment?

There is far more in the case than space available to discuss here. I will just mention a couple of highlights.

First, a jurisdictional question arose over whether Thunderbird, a Canadian company with principal offices in California, could bring the claim based on its minority shareholding of various Mexican entities that operated the gaming facilities. If Thunderbird as a foreign investor did not control these Mexican entities, then the NAFTA panel lacked the authority to resolve these claims against Mexico. The panel ruled that minority shareholders that held de facto control over Mexican entities was sufficient. “The question arises whether ‘control’ must be established in the legal sense, or whether de facto control can suffice…. The term ‘control’ is not defined in the NAFTA. Interpreted in accordance with its ordinary meaning, control can be exercised in various manners. Therefore, a showing of effective or ‘de facto‘ control is … sufficient for the purposes of Article 1117 of NAFTA.” (paras. 105-06).

Second, on the doctrine of “legitimate expectations,” the panel summarized the requirements under international law and concluded that Thunderbird could not successfully invoke this doctrine. “Having considered recent investment case law and the good faith principle of international customary law, the concept of ‘legitimate expectations’ relates, within the context of the NAFTA framework, to a situation where a Contracting Party’s conduct creates reasonable and justifiable expectations on the part of an investor (or investment) to act in reliance on said conduct, such that a failure by the NAFTA Party of honour those expectations could cause the investor (or investment) to suffer damages. The threshold for legitimate expectations may vary depending on the nature of the violation alleged under the NAFTA and the circumstances of the case. Whatever standard is applied in the present case however–be it the broadest or the narrowest–the Tribunal does not find that the Oficio generated a legitimate expectation upon which EDM could reasonably rely in operating its machines in Mexico” (paras. 147-48).

The Separate Opinion of Thomas Wälde is significant for its much fuller discussion of the legitimate expectations doctrine under international law. In paragraphs 24-57 there is wonderful analysis of legitimate expectations under national laws and international law, as well as analysis of legitimate expectations as applied under the fair and equitable treatment doctrine of Article 1105. If you are interested in the issue, I am not aware of another arbitral opinion that provides greater depth of analysis.

More on Darfur, Kristof and O’Reilly

by Roger Alford

I received a thoughtful email from a reader yesterday on my post about Darfur, Kristof and O’Reilly. He writes: “Doesn’t it beg the question as to ‘the extent [to which] in attacking O’Reilly Kristof is attacking conservatives by proxy’? Mainstream media are indeed disturbing, not least because they set up these facile proxies, which figures like O’Reilly and Kristof are happy to exploit. Certainly O’Reilly, in setting himself up for attack on behalf of his constituency, is likely to be as responsible as Kristof for alienating the conservatives of whom you write.”
Good point. I totally agree that it did beg the question. Kristof may not have had the intent to paint with such a broad brush. But whatever his intent, what will his readers think? They will associate O’Reilly with conservatives and draw a connection that O’Reilly and his viewers don’t care about this issue.
To his credit, Kristof yesterday clarified on his blog that he is using the O’Reilly funding campaign (now at over $92,000) as a “gimmick” to try to shame “him-and other TV networks–into covering genocide.” But if that is his goal, why attack only O’Reilly? Why not have a fund for network television hosts to visit Darfur? Why not just convince Oprah to go to Darfur because she actually might go and make a monumental impact covering the genocide? If Kristof’s real goal is getting network coverage, isn’t there a better avenue than attacking O’Reilly? It reads like a deliberate attack on O’Reilly, and Fox News, and their viewers.
As for O’Reilly, I frankly don’t take O’Reilly very seriously, but I do take Kristof seriously. But I probably should have said more about O’Reilly in retrospect. I did think about saying more yesterday, but I thought it would take me into a domestic discussion about law and order and how obvious it is that a guy like Kristof would care about teen rape in Vermont and anywhere else it happened. Kristof is simply using the power of the pen to focus on the most pressing concerns facing our world. It is totally legitimate for Kristof to focus on Darfur and leave to others to address other significant concerns.
And yes O’Reilly does leave the impression that conservatives don’t care about this issue. And yes he is encouraging his viewers to discount the importance of this issue. But O’Reilly is not thinking strategically about Darfur whereas Kristof is.
Incidentally, since I published my post we now discover that O’Reilly suddenly has become an internationalist. As Kristof notes, O’Reilly’s response is that “[Kristof] continues to lay the Darfur situation at America’s doorstep when the United Nations is where his anger should be directed. Of course that great African Kofi Annan could make Darfur a huge issue at the UN, but has chosen not to do so.” So O’Reilly is arguing for the United Nations to take the lead on Darfur and urging a limited role for the United States on this issue. I guess even O’Reilly is an à la carte multilateralist.
UPDATE: As of February 10, the O’Reilly fund was at over $215,000. Kristof reports that he is planning an itinerary that will take O’Reilly out of commission for a year. And the tone of the donors underscores my concerns. One donor insisted that he would give $20,000 if O’Reilly only wore light body armor. Another would donate on the condition that O’Reilly in an economy class seat near a toilet. Yeah, nice gimmick to shame the networks into covering Darfur. That clearly is Kristof’s agenda here. It has nothing to do with animus toward O’Reilly or conservatives.
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The Strange Case of Luis Posada Carriles

by Kevin Jon Heller

President Bush has often insisted that “if you harbor a terrorist, you’re equally as guilty as the terrorists.” In that regard, it’s instructive to consider the ongoing extradition battle between Venezuela and the United States over Luis Posada Carriles, who is currently being held in federal detention in Texas. By any definition, Posada richly deserves the description “terrorist,” yet the Bush administration continues to protect him. Here are a few highlights of his long and varied career, most culled from declassified CIA documents:

  • In October, 1976, Posada masterminded the bombing of an Air Cubana flight from Barbados to Cuba, killing all 73 people aboard. A few days before the bombing, a reliable CIA source heard Posada say, “[w]e are going to hit a Cuban airplane.”
  • In 1998, Posada proudly told a New York Times reporter that he was responsible for a string of hotel bombings in Havana that killed an Italian businessman and wounded 11. “It is sad someone is dead,” he admitted. “But we can’t stop.”
  • In 2000, Posada was convicted in Panama of conspiring to assassinate Fidel Castro (he had 34 pounds of C-4 in his possession when he was arrested). He was pardoned in 2004 by the outgoing Panamanian president, Mireya Moscoso.

The extradition battle between the U.S. and Venezuela began in April, 2004, when Posada requested political asylum in the U.S. The Venezuelan government immediately sought Posada’s extradition, pursuant to its 1922 treaty with the U.S.; it intends to retry him for the bombing of the Air Cubana plane. Posada had been acquitted of that charge by a Venezuelan military court in the mid-1980s, but a higher military court overturned the acquittal, ruling that Posada should have been tried in civilian court. Posada then escaped from a Venezuelan jail before the retrial.

At first, the State Department questioned whether Posada was actually in the country – adding that the charges against him “may be a completely manufactured issue.” The Department of Homeland Security only took Posada into custody in Miami after he held a series of public press conferences and a number of declassified CIA documents were released about his violent past (and his cozy relationship with the CIA), creating headlines around the world.

On September 28, 2005, an immigration judge ruled that Posada could not be extradited to either Venezuela or Cuba (which also sought his extradition, but does not have an extradition treaty with the U.S.) because he “faced the threat of torture in Venezuela.” It was clear from the beginning that DHS’s heart was not in the case; even after the immigration judge indicated that Posada had presented a strong argument that he would be tortured, DHS did not call a single witness in rebuttal. Nor did it appeal the judge’s ruling to the Bureau of Immigration Appeals – thus foreclosing the possibility of his extradition to Venezuela for good. The only question now is whether Posada will be released from custody or extradited to a country other than Cuba or Venezuela. Outright freedom is a distinct possibility: no country has yet said that it would accept him, and Immigration and Customs Enforcement only has until March to determine his fate. (An internal DHS memo states that ICE’s policy is to “favor release of aliens who have been granted protection relief by an immigration judge.”)

It’s not surprising, of course, that the U.S. government is protecting Posada. According to CIA documents, he was on the CIA’s payroll from 1965 to 1976, usually training paramilitary forces in the dark arts of sabotage and explosives. And he was deeply involved in the Iran-Contra scandal after he escaped from prison in 1985, shipping arms and supplies to the Contras under the code name “Ramon Medina.”

Still, Posada’s case is thick with irony – not least the glaring disparity between Bush’s tough talk about harboring terrorists and his administration’s kid-gloves treatment of Posada. Even more ironic, though, is the legal authority the immigration judge cited in defense of his refusal to extradite Posada to Venezuela: Article 3 of the UN Convention Against Torture, which prohibits extradition “to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.” This is, of course, the same Convention that the Bush administration has systematically violated with its well-documented history of “extraordinary renditions.” As Human Rights Watch notes:

The CIA has regularly transferred detainees to countries in the Middle East, including Egypt and Syria, known to practice torture routinely. There are reportedly 100 to 150 cases of such “extraordinary renditions.” In one case, Maher Arar, a Syrian-born Canadian in transit in New York, was detained by U.S. authorities and sent to Syria. He was released without charge from Syrian custody ten months later and has described repeated torture, often with cables and electrical cords. In another case, a U.S. government-leased airplane transported two Egyptian suspects who were blindfolded, hooded, drugged, and diapered by hooded operatives, from Sweden to Egypt. There the two men were held incommunicado for five weeks and have given detailed accounts of the torture they suffered (e.g. electric shocks), including in Cairo’s notorious Tora prison. In a third case, Mamdouh Habib, an Egyptian-born Australian in American custody, was transported from Pakistan to Afghanistan to Egypt to Guantánamo Bay. Now back home in Australia, Habib alleges that he was tortured during his six months in Egypt with beatings and electric shocks, and hung from the walls by hooks.

UPDATE: A tip-of-the-hat is due to Michael Froomkin, who mentioned the case on his blog last month.

Testing Complementarity: Sudan’s Local War Crimes Courts

by Julian Ku

This on-the-ground report from Sudan provides a brief but interesting glimpse at Sudan’s effort to avoid transferring defendants to the International Criminal Court. Sudan has created special tribunals to try individuals of suspected war crimes. If its domestic processes are deemed sufficient by the ICC, then the ICC cannot exercise jurisdiction over alleged war crimes in Sudan. This has always been one of the fundamental principles of the ICC, but the very fuzziness of the concept has also been the source of criticism from ICC opponents. Here is the first chance for the ICC to give the concept some more substance.

International Law of Spelling Bees

by Roger Alford

Here is a weird story. An eighth grader in Nevada entered a spelling bee but was eliminated despite spelling the word “discernible” correctly. The mother was livid and threatened legal action. “I’m a momma bear with her bear claws out. Spellers and academic children don’t get all the accolades that the sports kids do. This is one of their few chances to shine, to get attention and look what happens…. I’ll take this to the U.S. Supreme Court. I will take this to the International Court of Law to fight for my baby’s rights.”
I double checked the Convention on the Rights of the Child but could not find the provision addressing spelling bees. The closest I could find was Article 29: “States Parties agree that the education of the child shall be directed to: (a) The development of the child’s personality, talents and mental and physical abilities to their fullest potential.” That should do it. Just argue her international law right to develop to her fullest potential was violated. I’m sure that will do the trick before the International Court of Law.

U.S. "Enemy Combatant" May Be Transferred to Iraqis

by Julian Ku

The U.S. military may transfer custody of U.S. citizen “enemy combatant” to the Iraqi government, according to this AP article. The article suggests that it would be the first time that a U.S. citizen “enemy combatant” is transferred to Iraq, although it would not be the first time that a U.S. citizen enemy combatant has been transferred to a foreign government. Yaser Hamdi, for instance, was apparently transferred to the Saudi Arabian government last year.

This case reminds me of the usefulness of the concept of an “enemy combatant” – a non-uniformed soldier using tactics in violation of the customary laws of war against U.S. military personnel. At least in this context, this doesn’t seem like some crazy idea cooked up by the U.S government. One can imagine its practical usage – especially on the battlefield. The individual in question here is alleged to be a Al Qaeda operative in Iraq.

But U.S. courts’ skepticism of the enemy combatant concept is probably why the U.S. is transferring him to Iraq. Leaving him in U.S. custody means that he could bring a habeas action, which, even if limited under recent legislation, could still complicate U.S. military policy. It will be interesting to see if the federal courts are willing to reach out and block this transfer and future transfers of U.S. citizen enemy combatants.

The Iraqi Special Tribunal and the Right to a Fair Trial

by Kevin Jon Heller

In my initial post yesterday, I discussed some of the ways international tribunals limit the right of defendants to an effective defense. That difficulty, not surprisingly, is not unique to the tribunals; national criminal prosecutions that apply international law – substantively and procedurally – are usually no better, and are often far worse.

The current trial of Saddam Hussein, which is based on an unstable blend of international criminal law and Iraqi criminal procedure, is a case in point. Article 19 of the Iraqi Special Tribunal Statute provides defendants with fair-trial rights that are essentially similar to the ICCPR’s, including the right “[t]o have adequate time and facilities for the preparation of his defense and to communicate freely with counsel of his own choosing and to meet with him privately.” As Human Rights Watch has thoroughly documented, however, the IST has repeatedly undermined the rights of Saddam, his co-defendants, and the other “High Value Detainees” to a fair trial and an effective defense.

First, between June, 2004, and December, 2004, when the IST became operational, U.S. investigators used Iraqi government documents to question at least thirty detainees. Those interrogations took place before any of the detainees were represented by counsel, and it is highly unlikely that the detainees were informed of their right to counsel and right to remain silent, both protected under the IST Statute. The IST has assured HRW that it will not use any uncounseled statements made by the detainees as evidence against them at trial, but nothing in the IST Statute, the IST Rules of Procedure and Evidence, or the Iraqi Code of Criminal Procedure requires such exclusion. Moreover, the IST refused to guarantee HRW that it will exclude inculpatory evidence obtained through investigations initiated as a result of uncounseled statements (no “fruit of the poisonous tree” doctrine).

Second, the IST has consistently interfered with the ability of defense attorneys to meet with their clients. In some cases, the IST has delayed or refused to accept attorney’s applications to register as counsel. Requests to meet with a particular defendant have been ignored or delayed, and when access has been granted it has often been timed to coincide with the defendant’s questioning by an investigative judge – when counsel was required by Iraqi law to be present. On more than one occasion, a U.S official with knowledge of Arabic has been present in the interview room when a defense attorney was conferring with his client. (The right of a defendant to meet in private with his attorney was only added to the IST Statute in October, 2005.) And just yesterday the IST confirmed that it was prohibiting the attorneys for Saddam and his co-defendants from meeting with their clients, ostensibly as punishment for leaving the Tribunal last week after clashing with the judge.

Third, defense attorneys have not been present when the investigative judge has interviewed witnesses and collected relevant evidence, even though Article 57 of the Iraqi Code of Criminal Procedure permits the presence of counsel unless the investigative judge enters into the record an explanation of why counsel’s presence was not permitted. The absence of defense attorneys during the investigative stage is particularly troubling, because the dossier prepared by the investigative judge for the trial court constitutes substantive evidence of a defendant’s guilt. In this respect, the IST lags far behind international criminal law generally: the ICTY specifically held in Kordic and Cerkez that such wholesale admission of a dossier is inconsistent with the right to a fair trial; instead, the trial court must examine each category of evidence in the dossier, sensitive to the need to guarantee the evidence’s authenticity and to the dangers of admitting evidence not tested by cross-examination.

Fourth, defense attorneys have consistently been prevented from adequately examining the evidence against their clients, despite the fact that Rule 40 of the IST’s Rules of Procedure and Evidence specifically provides that the defense is permitted “to inspect any books, documents, photographs and acquire these things, which are material to the preparation of the Defence, and also inspect any books, categories of, or specific documents, photographs and tangible objects in the accused custody or control which are intended for use by the Criminal Court as evidence at the trial.” Defense attorneys were routinely denied access to documents and evidence during the investigative phase, and transcripts of judicial questioning were never made available, despite numerous requests. Moreover, attorneys have consistently been denied sufficient time to review the investigative judge’s dossier — and have often been forced to conduct even that limited review in public areas of the court.

Fifth, Rule 40 of the Iraqi Code of Criminal Procedure only requires the prosecution to disclose witness statements and all other evidence 45 days before trial. 45 days is a patently insufficient amount of time to prepare a defense to charges of crimes against humanity and genocide, especially given that Iraqi law permits imposition of the death penalty for both.

Sixth, and finally, all of these problems are compounded by the lack of equality of arms between the prosecution and defense. Although Saddam Hussein and other high-profile defendants have access to skilled defense attorneys (when they’re allowed to meet with them), many future defendants will have to employ or be assigned Iraqi attorneys with little or no experience in international criminal law. Moreover, those attorneys will face a prosecution team with far superior resources and training: the U.S. has allocated $128 million to investigating and prosecuting former Iraqi officials, and has established a fifty-person office, the Regime Crimes Liaison Office, that has played an active role in interviewing detainees, reviewing documents, and training IST staff.

In the wake of the murders of two defense attorneys involved in Saddam’s trial, numerous scholars and human-rights groups have called on the Iraqi government to move the IST out of Iraq. There is no question that such a move would improve the security situation, but it would not address the central problem with the IST: as presently constituted, defendants are unlikely to get a fair trial no matter where the trials are held.

ICC Elects New Judges

by Kevin Jon Heller

On January 26th, the Assembly of State Parties to the International Criminal Court elected six judges to serve nine-year terms. This is the second such election; 18 judges were elected in 2003, six for three-year terms, six for six-year terms, and six for nine-year terms. With the exception of Ekaterina Trendafilova of Bulgaria, the five other judges were all elected in 2003 to three-year terms.

Pursuant to Article 36 of the Rome Statute, the 100 Representatives were effectively required to vote for at least one candidate from an African State, at least one candidate from an Asian State, at least two candidates from Eastern European States, and at least one female candidate. The ballot also contained two lists of candidates. Candidates on List A had established expertise in criminal law, while candidates on List B had expertise in relevant areas of international law.

I thought Opinio Juris readers might be interested in knowing something about the six newly-elected judges. They are:

Elected from List A (Criminal Law)

Ekaterina Trendafilova (Bulgaria)

Received 82 votes. Prior to her recent election, Judge Trendafilova was a full professor of law at Sofia Unversity, from which she holds a Ph.D. She is also a professor of law at Veliko Turnovo University. She served as the Bulgarian representative to the UN Commission for Crime Prevention and Criminal Justice and has worked extensively with the European Commission CARDS Regional Project. She is also a trained Barrister.

Sang-hyun Song (Korea)

Received 70 votes. Prior to his election in 2003, Judge Song was a professor at Seoul National University. As a member of the advisory committee to the Korean Supreme Court and Ministry of Justice, he participated in the reform of the Korean Penal Code and the Code and the Court Rules of Criminal Procedure. He has served as Vice-President of UNICEF/KOREA and has been a visiting law professor at Columbia NYU, and Harvard, among others. He also holds a J.S.D from Cornell, an LL.M from Tulane, and a LL.B from Seoul National University.

Elected from List B (International Law)

Hans-Peter Kaul (Germany)

Received 67 votes. Prior to his election in 2003, Judge Kaul was the Ambassador and Commissioner of the Federal Foreign Office for the ICC. He also served as the head of the German delegation to the ICC Preparatory Committee. As the director of the Public International Law Division of Germany’s Federal Foreign Office, he was responsible for several cases before the International Court of Justice. He holds a law degree from the University of Heidelberg.

Erkki Kourula (Finland)

Received 73 votes. Prior to his election in 2003, Judge Kourula was the Director General for Legal Affairs at the Finnish Ministry for Foreign Affairs. He has also served as the Finnish Ambassador to the Council of Europe and as Minister Counsellor and Legal Advisor at the Permanent Mission of Finland to the United Nations. He was the head of the Finnish delegation to the Rome Conference. He holds a Ph.D in International Law from Oxford and was a Professor of International Law at the University of Lapland.

Akua Kuenyiha (Ghana)

Received 72 votes. Prior to her election in 2003, Judge Kuenyiha was Dean of the University of Ghana Faculty of Law, where she taught criminal law, gender and the law, international human rights law, and public international law. A Barrister and Solicitor of the Supreme Court of Ghana, she holds a BCL from Oxoford and an LL.B from the University of Ghana.

Anita Usacka (Latvia)

Received 77 votes. Prior to her election in 2003, Judge Usacka was a Judge of the Latvian Constitutional Court. She was also a full professor in the Department of Constitutional Law of Latvia University, where she had been academically affiliated since 1975. She has expertise in international humanitarian and public law, with a particular focus on the rights of women and children. She holds a Ph.D in law from Moscow State University and a law degree from the Latvian University.

Darfur, Nicholas Kristof, and Bill O’Reilly

by Roger Alford

There is an angry debate going on right now between liberal columnist Nicholas Kristof of the New York Times and conservative television host Bill O’Reilly. Kristof has devoted an entire column yesterday to attacking Bill O’Reilly and launching a fund to pay for Bill O’Reilly to travel to Darfur. “[M]aybe Mr. O’Reilly’s concern is cost, so I thought my readers might want to give him a hand. You can help sponsor a trip by Mr. O’Reilly to Darfur, where he can use his television savvy to thunder against something actually meriting his blustery rage.” On Kristof’s blog (yes, NY Times columnists now have blogs) he reports that he has raised over $75,000 to fund an O’Reilly trip to Darfur.

Bill O’Reilly has responded with a nasty post about how Kristof cares about troubles abroad but not problems at home. In this article entitled Darfur vs. Vermont he criticizes Kristof for ignoring the light sentence imposed on a teenage rapist in Vermont. “The 60-day sentence for a child rapist came to light. Because Kristof had referenced teenage rape in his criticism of me, I fully expected to see him and The New York Times all over the Vermont story. After all, this human rights violation happened just a few hundred miles north of New York City.But The New York Times did not cover the Vermont story–did not even mention it. And there was not a word from my pal Nicholas Kristof, the human rights guy.” Of course, O’Reilly is simply ridiculous to suggest that we should care about teenage rape in Vermont, or genocide in Darfur, but not both.

The Kristof-O’Reilly exchange highlights one of the things that is most disturbing to me about mainstream media. There is lots of heat but very little light. Lots of shouting but very little dialogue. The hidden message behind the debate is that conservatives don’t care about human rights and that liberals don’t care about law and order. It makes for good ratings, but of course neither are true.

One of the greatest living human rights activists in America right now is Gary Haugen at International Justice Mission. IJM is a Christian human rights organization that garners tremendous support from evangelicals and other conservatives. They are doing amazing work to combat sex trafficking, bonded labor, and other human rights abuses in numerous countries. I know because I have been to India with IJM and seen their work on bonded labor first hand. Their summer overseas internship program draws law students from the best law schools in the country. How did it all begin? As you can read here, Haugen started IJM after covering the genocide in Rwanda.

Or take Freedom House’s Center for Religious Freedom. Spend just one hour with Paul Marshall, a Senior Fellow at the Center and author of the best-selling book Their Blood Cries Out, and you will walk away terribly impressed with his religious conviction and breadth of knowledge regarding the global threat to religious liberty.

Having watched this conservative embrace of human rights for decades, I could give far more examples if space and time allowed. We could talk about John Paul II and the fall of communism, or Rick Warren’s work on poverty in Africa, or Fuller Theological Seminary‘s government grant to promote Muslim-Christian dialogue, or Advocates International‘s global effort to do justice, love mercy, and walk humbly with God. I could also give very personal examples of conservative law students I mentor who desperately want to work in the human rights field.
Suffice it to say that Kristof is doing great work highlighting the genocide in Darfur. I deeply admire and respect those efforts. But to the extent that in attacking O’Reilly Kristof is attacking conservatives by proxy, he is a doing a great disservice to the current movement of human rights. Please don’t alienate conservatives and pretend they don’t care about human rights. Please don’t encourage those on the left to believe that those on the right don’t care about genocide. Let’s not make Darfur a political wedge issue.

Brain Drain of Devout Muslim Women

by Roger Alford

I have previously reported on the appalling decision of the European Court of Human Rights in the case of Şahin v. Turkey that upheld the right of Turkey to prevent devout Muslim women from wearing headscarfs (hijabs) to graduate school.

Last week the Chronicle of Higher Education had a very interesting article (subscription required) that highlights the brain drain of devout Muslims who are fleeing Turkey to study abroad. The article discusses Ms. Sahin’s situation in particular, but also addresses the broader subject of the adverse impact that ill-advised policies regarding religious practices are having on Turkey.

“[C]ritics of the policy–and there are many on campuses here–say that a law supposedly designed to protect the country from religious intolerance and move Turkey into the modern era has had the opposite effect. Human-rights experts estimate that hundreds of Turkish women unwilling to adapt to the law in their home country have left in order to complete their education elsewhere–in Europe, in the United States, or in other countries that allow them to wear Islamic dress. Others have abandoned higher education altogether, hampering efforts to raise the education level of Turkish women…”

Forcing devout Muslim women to choose between faith and learning is a terrible policy that violates basic human rights. But it also happens to be bad public policy that will have serious adverse repercussions for the future labor market in Turkey. If Turkey wants to move forward economically, it should not espouse backward religious policies. If Turkey doesn’t want the best and brightest devout women in its country, Europe or the United States will educate them.

So when will Turkey stop the offensive practice of outlawing headscarfs of the devout? Many speculate that it will not be until after Turkey secures membership in the European Union. The article suggests that Turkey has been so intent on proving its western, secular credentials to the European Union that it is trying to “out-secularize” secular Europe. So the irony is that for now, devout upwardly-mobile women like Sahin are welcome in western Europe, but not their native Turkey.

Related Links:

WTO Watch: EU Restrictions on GMO Crops Violates Trade Rules

by Julian Ku

According to the Washington Post, a WTO dispute settlement panel has found EU rules restricting the sale of genetically modified foods violates WTO rules (the actual report has not yet been released publicly but for more background, see here). The decision appears to be a victory for the U.S., Canada, Australia, and other agricultural nations that rely on GMO crops. Given the seriousness of resistance to GMO goods in Europe, this decision will no doubt be appealed and dragged on for a few more years.

First 9/11 Convict Released (For Now) in Germany

by Kevin Jon Heller

In an interesting counterpoint to Roger’s post on the conviction of Abu Hamza, Reuters reports that Germany’s Federal Constitutional Court has ordered the release of Mounir el Motassadeq, the first person to be convicted in connection with the attacks on 9/11, pending resolution of defense and prosecution appeals. The court agreed with el Motassadeq’s lawyers that the Hamburg judges had been wrong to order him to return to custody with the appeals still pending, because doing so “infringed on his basic right to liberty.”

El Motassadeq was convicted in 2003 of more than 3,000 counts of accessory to murder for helping pay tuition and other bills for three 9/11 hijackers, including Mohamed Atta, while they plotted the attacks. He was also convicted of membership in a terrorist organization. After an appellate court threw out the convictions, a Hamburg state court convicted el Motassadeq only on the membership charge; it found him not guilty of the 3,000 accessory counts. The court sentenced el Motassadeq to seven years in prison.

El Motassadeq’s release – and the court’s ruling does not affect the validity of his conviction – illustrates an important difference between German and U.S. criminal law regarding “mere” membership in a terrorist organization. Such membership is criminal under Section 129a of the German Penal Code. Under U.S. law, by contrast, the defendant must have, at a minimum, conspired with or aided and abetted a terrorist organization, harbored a terrorist, or provided a terrorist organization with some sort of material support. Membership alone is not enough.

(It’s worth noting, by the way, that it’s not clear the U.S. couldn’t criminalize mere membership in a terrorist organization like al-Qaida. The Supreme Court case usually cited to that effect, Scales v. United States, only dealt with a group — the communist party — that had both legal and illegal aims. For such a hybrid group, the Court held in Scales, proof of membership is not enough to sustain a conviction; the government must also prove that the defendant specifically intended to further the group’s illegal aims. Notably, the Court did not hold that the government cannot criminalize membership in a group whose ends are solely illegal, as al-Qaida’s almost certainly are — though the same could not be said of many of the groups the U.S. government has designated as “foreign terrorist organizations.” For such groups, proof of membership alone might suffice to prove that the defendant specifically intended to further the group’s illegal aims.)

(In)equality of Arms at the International Tribunals

by Kevin Jon Heller

My thanks to everyone at Opinio Juris for inviting me to guest blog for the next couple of weeks – especially Julian, who proves his graciousness by letting me blog even though I’ve often used the comments section to criticize his posts.

As Peggy said, I currently teach international criminal law and evidence at the University of Georgia; I’ve been on the faculty since 2004. In June I will be leaving Georgia to join the Faculty of Law at the University of Auckland, where I’ll teach international criminal law and domestic (New Zealand) criminal law. In the spirit of full disclosure, I am nowhere near as expert in public international law as my hosts; I’m a former criminal-defense attorney, and my writing to date has largely focused on various theoretical issues in substantive criminal law.

Because I am a relative newcomer to international law, I thought I would focus this initial post on a topic I do know something about: how difficult the international tribunals make it for persons charged with serious international crimes to receive an effective defense. The right to such a defense is firmly ensconced in international law; to take only one example, Article 14(d) of the ICCPR guarantees criminal defendants “a fair and public hearing by a competent, independent and impartial tribunal established by law.” One of the key element of that guarantee, according to the European Court of Human Rights (and many other courts), is “equality of arms” between the prosecution and the defense – the idea that the defense should never be placed at a “substantial disadvantage” vis-à-vis the prosecution in terms of its ability to present its case.

In practice, however, the right to equality of arms between the prosecution and defense is often honored only in the breach. First, the international tribunals simply allocate far more resources – financial, material, human – to the prosecution than to the defense. Consider, for example, the Special Court for Sierra Leone, a hybrid tribunal established by agreement between Sierra Leone and the UN. Alone among the tribunals, the SCSL has a permanent organ within the Court, the Office of the Principal Defender, dedicated to ensuring that defendants receive a fair trial. Moreover, the SCSL has embraced the idea that “equality of arms” means equality of resources, whereas the ICTY and ICTR have said, following the latter’s decision in Prosecutor v. Kayishema, that it means only equality of rights.

Unfortunately, despite these lofty ideals, there is no equality of arms between the prosecution and the defense at the SCSL. Here’s James Cockayne:

The Prosecution has been overseeing investigations for two years; most Defense teams are only began investigations after the commencement of trial. The Prosecution investigates with court vehicles, satellite phones, dedicated drivers and security, translators, and professional international investigators; Defense team staff are not formally permitted to use Court transport (transport costs are supposed to be covered by each team’s budget), have no dedicated drivers or security or access to logistical equipment, and must find their own translators and investigation staff, with only national-level salaries for those staff covered by their budgets. Until recently, investigators (who are employed – and therefore approved – by the Defense Office) had to have a background in policing; many of the defendants are charged with attacks on police as a crime against humanity. That policy was recently changed, but only after a significant delay resulting in some defendants starting trial without investigators. The Prosecution, in contrast, has relied heavily on skilled, practiced international investigators, many with ICTY and ICTR experience. The Prosecution budget takes up a large percentage of the overall U.S. $83 million budget; the Defense teams receive around U.S. $4 million altogether. Prosecution staff are permanently stationed in Freetown; many Defense counsel come and go (with the associated travel costs significantly eroding Defense budgets). The Prosecutor is an Assistant Secretary General; the head of the Defense Office is many rungs lower in the U.N. employment hierarchy. The Prosecution has until recently received approximately five times the office space assigned to the Defense, and also greater access to office resources.

Nor is the SCSL exceptional. Although the Special Panel for Serious Crimes Unit in East Timor is dramatically underfunded as a whole, the lack of funds is particularly acute for the defense. Because of budgetary constraints, for example, the Public Defender’s Office did not call a single witness in any of the SCU’s first fourteen trials. Similarly, although the ICTY has come a long way since its inception – in its first case, Tadic, the defense attorney was paid $26/hour – the funding gap between the prosecution and defense remains unacceptable: for the biennial period 2004 and 2005, the defense budget was $29.5 million, while the prosecution’s budget was $99.9 million.

The inequality of arms at the international tribunals, however, is not limited to funding. The quality of defense counsel is equally problematic, especially relative to the quality of the prosecutors. Although the ICTY now requires defense counsel to have at least seven years of experience in criminal law, prior to 2004 it only required counsel to have “reasonable experience in criminal and/or international law” – a requirement that the tribunal interpreted generously, to say the least. In practice, many attorneys who appeared before the ICTY had little criminal-defense experience, and even less knowledge of public international law. Moreover, most of the defense attorneys came from the non-adversarial systems of criminal law in the Balkan states, and were thus often unprepared – no matter how dedicated – to navigate the largely adversarial system embraced by the ICTY. As Patricia Wald, the former Chief Judge of the DC Circuit and a judge at the ICTY pointed out, the results weren’t pretty:

Understandably, the bulk of defense counsel are Balkan-trained lawyers and are typically not experienced at cross-examination. Some are quick learners, but others are painfully awkward and unfocused on just what they are trying to accomplish. They sometimes argue with or even criticize the witnesses. They also go off on tangents that are not always relevant to the case. The Tribunal is now operating training courses for appointed lawyers, but, candidly, it is not easy to acculturate lawyers in a wholly new legal system in a few days of lectures or even simulated exercises. As an American judge, I frankly find many ICTY defense cross-examinations painfully unhelpful to my own judgment.

It is too soon to tell whether the ICC will do a better job of guaranteeing equality of arms than its predecessors. On paper, there is reason to be optimistic: the Court has adopted comprehensive regulations governing the qualifications required of defense counsel and the provision of resources to the defense. In terms of qualifications, the ICC requires all defense counsel to have at least 10 years experience in international or criminal law and procedure, including relevant experience – whether as judge, prosecutor, or defense attorney – in criminal proceedings. Moreover, the Court has created an Office of Public Counsel for the defense that is responsible for protecting the rights of the defendant during the initial stages of the investigation (before counsel has been chosen or appointed) and providing the defense with research and advice during trial. Most importantly, the Office of Public Counsel is wholly independent of the ICC’s Registry – a significant improvement over the structure of the ad hoc tribunals, where the Registries served the prosecution as well as the defense and were, as a result, often viewed with considerable suspicion by defendants.

Regarding resources, the ICC has also adopted a regulation that guarantees that the Court will cover “all costs reasonably necessary” for an “effective and efficient” defense. Those costs include payments to counsel and staff, expenses involved in gathering evidence, overhead, translation and interpretation costs, and travel costs. Best of all, the ICC Regulations specifically require parity between the salaries of attorneys in the Office of the Prosecutor and the fees paid to members of the defense team.

These regulations are steps in the right direction. One can only hope that, despite the magnitude of the crimes committed by defendants brought before the ICC, the political will exists to make sure they are honored in practice, not simply in the breach.

Hamza Found Guilty of Inciting Murder

by Roger Alford

A couple of weeks ago I reported about the Abu Hamza trial for inciting murder in London. Earlier today Hamza was convicted of 11 of the 15 charges he faced. The verdicts were as follows:
  • Guilty of six charges of soliciting to murder;
  • Guilty of three charges relating to stirring up racial hatred;
  • Guilty of one charge of owning recordings related to stirring up racial hatred;
  • Guilty of one charge of possessing terrorist encyclopedia;
  • Not guilty of three charges of soliciting to murder;
  • Not guilty of one charge relating to stirring up racial hatred.
Having followed the trial closely I am very pleased that Hamza has been found guilty. His words by any common understanding called for jihad against infidels and Jews and were direct incitements of murder. They were, in short, criminal words calling for criminal deeds.
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Welcome to Guest Blogger Kevin Heller

by Peggy McGuinness

Professor Kevin Heller of the University of Georgia Law School will be guest blogging at Opinio Juris for the next couple of weeks. Kevin is an expert on evidence and criminal law, with a particular interest in international criminal law. His SSRN page is here. Prior to teaching, Kevin spent some time as writer and legal advisor on several television shows in Hollywood — a perfect background for blogging!

Welcome Kevin.

Court Dismisses Int’l Law Torture Claims Against Rumsfeld

by Julian Ku

The U.S. District Court for Washington D.C. has dismissed most of a lawsuit against Donald Rumsfeld and various high-level military officials alleging responsibility for detainee abuse in Guantanamo Bay. The plaintiffs are four UK nationals who were detained, and then released, by the U.S. authorities in Guantanamo. They have now sued for damages in Rasul v. Rumsfeld (not on the DC Court’s website yet but available on Westlaw at 2006 WL 266570).

The case represents a clear victory for the U.S. government in its litigation over the war on terrorism and, if followed, would bar almost all of the lawsuits seeking tort damages against U.S. government officials for violation of international law.

The plaintiffs here alleged that Rumsfeld et. al. violated international law in the form of customary international law and also in the form of treaties like the Geneva Convention. The Court did not resolve those issues, but instead dismissed the case on the grounds that Rumsfeld et. al. were entitled to the protections of sovereign immunity under U.S. statutory law since defendants were acting within the scope of their employment. In effect, the Court is holding that as long as the U.S. government substitutes itself for individual defendants in cases challenging official conduct, those U.S. government officials are immune from any claim of violation of international law.

The court went on to find qualified immunity for the plaintiffs’ constitutional claims. It did, however, ask for more briefing to consider whether the defendants have immunity from a violation of the Religious Freedom Restoration Act.

All in all, the decision appears to be right and it confirms for me that many of the lawsuits against U.S. government officials for violations of international law (what I’ve called the “Third Wave” of Alien Tort Statute lawsuits) face serious obstacles. Still, I fully expect an appeal and given the lack of clear precedent on these issues, it is still possible (but not likely) that the appeals court will find an exception to sovereign immunity for serious violations of international law.

Cartoonists on the Cartoon Controversy

by Roger Alford

The Association of American Editorial Cartoonists (AAEC) has a post that provides useful links to cartoonists’ perspectives on the Muhammad cartoon controversy. Here are some of the highlights:
  • One Picture, A Thousand Outcries: “It’s been my experience that most groups are humor-impaired when outsiders make fun of them… A number of my cartoons have caused boycotts, lost advertising for my newspaper, and elicited streams of phone calls and/or picketing in front of our building. My editors have had to explain the nature of cartooning to the offended representatives of various faiths, ethnicities, and political groups. And I am not alone. Nearly all cartoonists worth their salt have enraged some portion of their readership, often when religious symbolism was part of the cartoon.”
  • I Walk the Line: “As a cartoonists today it is easy to feel besieged. First, you have to deal with cranky politicians, then there’s the readers with delicate sensibilities. You upset these people because the tool of your trade is ridicule. You wield a pen like a scalpel that delivers a line with biting wit. This line is potent and must be handled responsibly. As a cartoonist, this line is your best friend, but don’t cross the line… Recently, in an act of provocation, a Danish newspaper dared twelve cartoonists to draw Muhammad. As a veteran in this job I knew cartoons should provoke thought, but if you cross the line you can provoke hostility. The line it appears had been crossed. The cartoons set off an eruption of protests, boycotts, threats, and upheavel. These dozen drawings have launched a titantic clash of cultures pitting the pen against the sword.”
  • The Freedom to Offend: “Freedom of the press and freedom of speech, by definition, include the freedom to offend. But the freedom to offend has to be used carefully if it is to retain real power. Religion A can mock religion B and vice versa forever, but headway is rarely made. From a satirist’s perspective, it’s almost always more profitable to observe and comment on the actions of the speakers themselves. If you’re proposing death and destruction in the name of your specific deity, then we’ll have a problem. As a cartoonist, I understand and support the editor of the Jyllands-Posten and his action in promoting the fundamental importance of free speech. Democracy has always been a messy business and mistakes in judgment are a constant risk.”
  • Danish Cartoonists Fear For Their Lives: “Twelve Danish cartoonists whose pictures sparked such outcry have gone into hiding under round-the-clock protection, fearing for their lives…. In an interview with a Swedish newspaper this week, some of the cartoonists expressed their doubts about the entire episode. ‘It felt a little like a lose-lose situation. If I said no, I was a coward who contributes to self-censorship. If I said yes, I became an irresponsible hate monger against Islam.’”

Rosalyn Higgins Elected President of the ICJ

by Julian Ku

Current ICJ judge Rosalyn Higgins was elected today to be the next President of the International Court of Justice. Higgins, who was named to the Court in 1995, was the first female member of the ICJ and remains its only female judge. Hailing from the UK, which named her a Dame of the British Empire, Professor Higgins is a noted international legal scholar. I recall, for instance, being handed this book upon my first week as a State Department intern to introduce me to some of the practical elements of international law. Congrats to President Higgins! Perhaps she can cajole her fellow ICJ judges to work a bit harder?

International Trade and Traffic Jams at U.S. Ports

by Roger Alford

So how fast is international trade growing? For one clue, look at the traffic at U.S. ports. According to this report in the L.A. Times, U.S. ports are facing “cargo volume that is just beyond belief.” And the growth is not limited to the top ports. “For more than 20 years, only three North American ports — Los Angeles, Long Beach and … New York … — handled 2 million or more cargo containers annually…. The Port of Oakland joined them in 2004, and last year three more ports breached the mark or came within two ships’ cargos of it: Tacoma, Wash. (2.1 million), the Virginia Port Authority (1.98 million) and Charleston, S.C. (1.98 million).” In 2005, Los Angeles and Long Beach handled a staggering 14.2 million cargo containers.

The leading U.S. ports (Los Angeles, Long Beach, New York, Oakland, Tacoma, Charleston, Virginia, Seattle, Savannah, and Vancouver) handled 32.9 million cargo containers in 2005 and 30 million in 2004. “It’s simple. We are continuing to see record levels of cargo coming here from Asia, and that trend is going to continue.”

As it happens my office view of the Pacific Ocean sitting here in Malibu includes a distant perspective of the north and south-bound cargo traffic lanes in and out of Long Beach port. It is rare not to see cargo ships in the distance, like planes ready to land at appointed intervals at an international airport.

Walter Dellinger Endorses President (Clinton’s) Powers to Ignore Unconstitutional Statutes

by Julian Ku

Following up on the law prof’s letter about NSA spying from last week, Andrew McCarthy of National Review Online has dug up a very interesting 1994 memo from Clinton’s then-OLC chief Walter Dellinger arguing that the President has the authority to refuse to execute statutes that are unconstitutional. Dellinger’s memo is actually not limited to foreign affairs statutes, but with respect to all statutes that affect any part of the President’s inherent constitutional powers. Dellinger’s memo is interesting because, of course, Dellinger is one of the prominent law professors currently attacking the legality of the NSA spying program. This doesn’t mean Dellinger is contradicting himself, but it does give new credibility to defenders of the NSA spying program on constitutional grounds.

Firearm Death Rates in Iraq and Washington, D.C.

by Roger Alford

The New York Times has an interesting graphic on the deaths in Iraq in January. According to their report there were 800 total civilian and military deaths in Iraq in January. If my math is correct, with Iraq’s population of 26 million, that would be an annualized death rate of 36.9 deaths per 100,000.
I was curious how that compared to similar statistics in the United States for firearm deaths. Although the national firearm death rate is much lower, I was surprised to find that in Washington, D.C. the firearm death rate is 31.2 deaths per 100,000.
Is it possible that the firearm death rate in Washington D.C. is that close to the “firearm” death rate in the war in Iraq? If these numbers are correct, it seems we either have a very serious problem in D.C, a manageable problem in Iraq, or some combination. What am I missing?

The NSA Spying Dispute: The Law Profs Take on DOJ White Paper

by Julian Ku

As AG Alberto Gonzales prepares to testify before Congress on the controversial NSA spying letter, the law professor critics of the NSA spying dispute have filed this blistering response to the DOJ’s 43-page defense of the warrantless wiretapping. I’m a bit surprised at the letter’s sharp tone, but it is a pretty effective letter nonetheless.

For a different take, see this letter by Kansas Senator Pat Roberts and this op-ed by William and Mary law professor Alan Meese. Both rely more on the idea that the Commander in Chief power is exclusive in the area of foreign intelligence. I think this is a decent argument, but I think it is also a hard one to prevail on. I wonder which AG Gonzales will rely upon today.

Unauthorized TSA Surveillance

by Roger Alford

A Super Bowl commercial has highlighted government abuse by TSA personnel at our nations’ airports. You cannot help but feel sorry for the guy who fell victim to this sort of unauthorized surveillance. Just go to this website and check out the first TV ad.

Chances of Airstrikes and Seahawks

by Roger Alford

Chances of an airstrike on Iran by March 2007? About 35%, almost the same chances that the Seattle Seahawks will win the Super Bowl today. Compare the betting line here and here.

Price for Super Bowl XL Winner. Sun Feb 05 at

Iranian Nuclear Sabres Rattle

by Roger Alford

Iran’s decision to resume uraniam enrichment is precisely what it threatened before the IAEA Board meeting last week. In a letter dated February 2, 2006, Iran firmly requested that the case not be submitted to the Security Council. It included the threat that “I am afraid to warn that if the interlocutors of Iran want to put pressure on the [IAEA] Board to report the issue to the UN Security Council and this pressure be affective, and the [Security] Council would be involved in any way with the Iranian peaceful nuclear activities, it would be the final blow to the confidence of the Islamic Republic of Iran and will totally destroy it.”

The threat was issued with the expectation that the IAEA would back down. It did not. To its credit, the IAEA Board displayed surprising conviction with a vote of 27-3 to refer the matter to the Security Council. (The “yes” votes included two Muslim nations, Egypt and Yemen; the “no” votes were Cuba, Syria, and Venezuela; the five abstensions were Algeria, Belarus, Indonesia, Libya, and South Africa). The full text of the IAEA Resolution referring the matter to the Security Council is available here.

It appears that Nobel Peace Laureate Al Baradei is backing up his lofty Nobel words with tough deeds. Here is what he stated in his Nobel Peace Prize Lecture only a few weeks ago: “[W]e must ensure – absolutely – that no more countries acquire these deadly weapons… Are these goals realistic and within reach? I do believe they are. But then three steps are urgently required. First, keep nuclear and radiological material out of the hands of extremist groups…. Second, tighten control over the operations for producing the nuclear material that could be used in weapons…. Third, accelerate disarmament efforts. “

We now have a nuclear crisis on our hands. But better to have a crisis with Iran than a crisis of confidence within the IAEA.

UPDATE: There is an interesting insight from Hoder who is suggesting that the Iranian people do not have the stomach for this fight and that Ahmadinejad is pushing his agenda in poor, remote villages because they “can’t mobilize enough people in Tehran who’ll be willing to show any support for this man.”

African Embassy Bombing Case Goes Forward

by Roger Alford

Last week the D.C. District Court ruled that the claims against Sudan for materially supporting the embassy bombings in Tanzania and Kenya may go forward. In Owens v. Sudan, the court ruled that there were sufficient allegations that Sudan materially supported the terrorist attacks to overcome a motion to dismiss. The concise holding is that if you finance terrorism, in a properly pled case plaintiffs can pursue claims to hold you accountable in United States courts.

The decision will be significant for future terrorist cases as it addresses concerns such as the sufficiency of the allegations of material support, the jurisdictional requirements of causation, and joint-tort theories. I think the joint-tort theory is particularly significant. It is not necessary to directly commit the terrorist attacks. A claim of aiding and abetting is sufficient. (No mention in the case about the extraterritorial application of state tort laws discussed here).

Hunton & Williams was on the case for the Government of Sudan. The law firms of Fay & Perles and Karp Frosh, were on the case for the plaintiffs.

"Death to Denmark!"

by Roger Alford

The flap over cartoons continues to rock the Muslim world. The BBC has great coverage with a dozen articles addressing the topic. The issue is particularly sensitive and reflects deep cultural and religious differences between Western values of freedom of expression and Islamic values of the holiness of the Prophet Muhammad.
Obviously Western media should be more sensitive to depictions that are idolatrous to Muslims. To their credit the American mainstream media has shown great discretion, refraining from reproducing the images. The European press displayed callous indifference to the religious convictions of Muslims, with the Koran widely interpreted as prohibiting images of Allah and Muhammad. (Of course, the Ten Commandments have a somewhat analogous prohibition against using the name of the Lord in vain.) A depiction of Muhammad with a bomb in his turban is offensive at multiple levels. Can you imagine an equally offensive cartoon tolerated in the Western press that played into gross stereotypes of blacks or gays?
But obviously Muslims should avoid violent reactions that will play directly into the prejudices of non-Muslims. Many in the West are astonished and even bemused at the outrage. Cartoons are greeted with chants of “Death to Denmark!” but in many Muslim quarters the murder of innocent civilians is greeted with silence and even celebration? Where are the chants of “Death to Terrorists!” Where’s the outrage when President Ahmadinejad calls for the annihilation of Israel and denies that six million Jews were murdered in the Holocaust? The silence of moderate Muslims when radical Islam embarrasses the faith is deafening. Vicious cartoons distort the faith, but so too does radical Islam.
By chance today I will moderate a panel at this conference on Muslim-Christian dialogue regarding peacemaking and conflict resolution. It seems the timing could not be more propitious.

The Next UN Secretary General: Holbrooke Surveys the Field

by Peggy McGuinness

Kofi Annan will step down as UN Secretary General this December. The campaign season for his replacement is heating up. By tradition of regional rotation, it’s Asia’s “turn” to supply the Secretary General (though the region is defined rather broadly to include the Middle East). Richard Holbrooke’s op-ed in today’s Washington Post reviews the potential candidates:

· Surakiart Sathirathai, Thailand’s deputy prime minister, has been running openly since last year and has visited dozens of capitals around the world. He has the formal endorsement of the Association of Southeast Asian Nations, a solid base from which to launch a candidacy.

· Ban Ki Moon, South Korea’s impressive foreign minister, has excellent relations with both Washington and Beijing. But would China accept a secretary general from a treaty ally of the United States, and a diplomat who is deeply engaged in sensitive six-party talks on North Korea’s nuclear programs?

· Jose Ramos-Horta is foreign minister of East Timor — the newest nation in the world and, until recently, itself a war-torn half-island in the South Pacific administered by the United Nations. Ramos-Horta is a Nobel Peace Prize laureate and is well known internationally, but his country is tiny, with only 800,000 people.

· Jayantha Dhanapala, a respected Sri Lankan, served as U.N. undersecretary general for disarmament and as ambassador to the United States. He has been openly campaigning for over a year, but some question the selection of another U.N. bureaucrat right after Kofi Annan.

Holbrooke notes that other possible candidates include former prime minister Goh Chok Tong of Singapore, Prince Zeid Raed Hussein, the current Jordanian ambassador to the UN, and Kemal Dervis, who is Turkish and the current head of the UN Development Program.

Does the outcome matter?

A weak S-G means a weaker United Nations, and although that may please some die-hard U.N.-haters, the United Nations has been an important part of American foreign policy on many issues since the end of the Cold War. Right now, for example, the Security Council is about to become a major focal point for the Iranian nuclear issue. The secretary general can play an important role on such issues, and it is in the American interest, more often than not, to have a strong secretary general exerting pressure on reluctant or rogue states. The same may not be true of China. The drama coming up, especially between Beijing and Washington, will be interesting to follow, and will tell us a lot about both the future of the United Nations and the long-term intentions of China on the world stage.

Bolton Scolds Tardy Security Council

by Peggy McGuinness

I couldn’t resist this news item about today’s events at the Security Council. Apparently, some Perm Reps believe in the German university “Akademische Viertel” (academic quarter) rule of promptness: so long as you arrive within fifteen minutes of a scheduled meeting, you are on time. US Ambassador John Bolton, perhaps taking the lead from his President who is known for arriving early for meetings, lives by a different, more accurate, clock. Bolton was more than a bit irked to find an empty room when he tried to open a meeting of the Council this morning:

“I brought the gavel down at 10. I was the only one in the room,” Bolton said. …”I believe in discipline. I think daily briefings constitute a form of intellectual discipline. Starting on time is a form of discipline,” Bolton told reporters. “I failed today.” “I took a list of when they (council members) came in,” Bolton said. “We started just before 10:15.”

Let’s hope this isn’t an omen (or metaphor) of things to come for US efforts at UN reform.

The Legitimacy of Western Views of Human Rights: The Barnes Symposium at the University of South Carolina

by Julian Ku

I will speaking tomorrow at the Barnes Symposium held at the University of South Carolina Law School. The symposium as a whole will discuss the legitimacy of western views of human rights and will have participants from all over the world, both in person and via video conference (a list of speakers is found here). I myself will focus on my little piece of this conversation – the use of international human rights treaties to interpret the U.S. Constitution. If we have any (friendly) readers in the USC community, I would love to meet you during my visit tomorrow.

Brazil and Canada Triumph: U.S. Repeals Anti-Dumping Laws and Scraps Cotton Subsidies

by Julian Ku

The U.S. Congress last night brought the U.S. in compliance with two WTO decisions. First, it essentially scrapped the U.S. program of subsidies for cotton farmers. The proximate cause of this decision was Brazil’s victory last year in the WTO finding that such subsidies violated WTO obligations. The other proximate cause, of course, is the renewed emphasis in Congress on reining in domestic spending.

Second, the U.S. Congress repealed the much-hated Byrd Amendment, which transferred dumping duties on foreign companies to their domestic competitors. Canada in particular has been grousing about this particular law.

As a policy matter, the removal of the Byrd Amendment is a good thing and the removal of subsidies for cotton is a even better. As a legal matter, of course, it demonstrates that yes, the U.S. does sometimes comply with international tribunal decisions, as long as there is political will to do so.

Case of the Month: United States v. Clark

by Roger Alford

My vote for the most important international law case in January is the Ninth Circuit’s decision in United States v. Clark. The case represents a rare and important instance of a court attempting to grapple with the scope of the Foreign Commerce Clause.

Michael Clark was convicted of traveling to Cambodia to engage in commercial sex with a minor in violation of federal law. The relevant statute, 18 U.S.C. § 2423(c), provides that “… Any United States citizen or alien admitted for permanent residence who travels in foreign commerce, and engages in any illicit sexual conduct with another person shall be fined under this title or imprisoned not more than 30 years, or both.”

Clark first argued that the statute violated international law principles of prescriptive jurisdiction. The Ninth Circuit recognized the presumption against extraterritoriality, but concluded that this statute is explicit as to its application outside the United States. Moreover, the statute complied with international law principles in that it applied to U.S. nationals, which clearly is recognized under the nationality principle. Although not addressed in the case, an open question is whether the same would be true if Clark were a permanent resident rather than a U.S. citizen.

More significant, Clark argued that Congress exceeded its power under the Foreign Commerce Clause in enacting § 2423(c). The statute is problematic under the Foreign Commerce Clause in that it regulates “illicit sexual conduct,” which embraces both non-commercial and commercial sex with minors. The Court offered an extensive analysis of the Interstate Commerce Clause, the Indian Commerce Clause, and the Foreign Commerce Clause to determine the scope of congressional authority to regulate foreign commercial sexual acts.

The Ninth Circuit distinguished Interstate Commerce jurisprudence and focused on the sweeping powers granted to Congress to regulate foreign commerce and the absence of traditional federalism concerns under this Clause. “Born largely from a desire for uniform rules governing commercial relations with foreign countries, the Supreme Court has read the Foreign Commerce Clause as granting Congress sweeping powers…. The Court has been unwavering in reading Congress’s power over foreign commerce broadly…. There is no counterpart to Lopez or Morrison in the foreign commerce realm that would signal a retreat from the Court’s expansive reading of the Foreign Commerce Clause.” Applied to Clark’s conduct, the Ninth Circuit concluded that “[t]raveling to a foreign country and paying a child to engage in sex acts are indispensable ingredients of the crime to which Clark pled guilty…. Congress did not exceed its power ‘to regulate Commerce with foreign Nations’ … in criminalizing commercial sex acts with minors committed by U.S. citizens abroad.”

In dissent, Judge Ferguson argued that the conduct of Clark did not constitute commerce with foreign nations and therefore was beyond the scope of congressional regulation. “[A]n act of paid sex with a minor that takes place overseas is not an act of commerce with other nations. Under the interpretation of the majority, the purchase of a lunch in France by an American citizen who traveled there by airplane would constitute a constitutional act of engaging in foreign commerce.”

It is remarkable how little attention is paid to the Foreign Commerce Clause in constitutional Commerce Clause analysis. Clark offers a useful perspective on the scope of congressional authority to regulate commercial and non-commercial sexual conduct that occurs abroad. The case was relatively easy because Clark was a U.S. citizen who paid for sex with a minor in a foreign country. But the statute was not limited to commercial sex, regulating any illicit sex with a minor in a foreign country that would be a violation of U.S. law had it occurred within the United States. The broadest application of that statute could raise interesting issues about the authority of Congress to regulate non-commercial foreign acts pursuant to the Foreign Commerce Clause.

It is simply astonishing that in 2006 the Ninth Circuit can begin a case by stating “we are confronted with a question of first impression regarding the scope of Congress’s power under the Foreign Commerce Clause.” Clark is well worth a close read by any scholar interested in that question.

UN Watch: New and Improved Website and Blog

by Peggy McGuinness

My friends at UN Watch have relaunched a completely revamped and upgraded website. It is a great resource for information about NGO activities at the UN human rights organs and UN democratic reform efforts more generally. UN Watch Executive Director Hillel Neuer has even started a blog section. (Click here for his comments on MLK JR day.)

If you want to see Hillel in action against the Zimbabwean ambassador to the UN, check out this clip from CNN’s Diplomatic License (a great news program which, sadly, the CNN broadcast in my area does not carry.)

The FBI Has a File on You, So Now What?

by Roger Alford

If the FBI had a file on you, what would you do? Prominent international criminal law professor Cherif Bassiouni faced precisely such a dilemma. So what did Bassiouni do? Bassiouni, who teaches at Depaul School of Law and is well known in ICC circles, requested a copy of the files, found errors in the 50-page report, and demanded that they be corrected. When the FBI refused, he made a federal case out of it and took it all the way to the Seventh Circuit. The FBI admitted that Bassiouni was not a member of a terrorist organization, but refused to reveal why it was keeping a file on him, stating that that information was classified.

Last week, the Seventh Circuit in Bassiouni v. FBI, ruled that no corrections were needed. Here is an excerpt:

The FBI notes its ongoing investigations into the threats posed by terrorist groups, specifically those originating in the Middle East…. Because of the nature of these investigative activities, and because of the breadth of Mr. Bassiouni’s contacts with the Middle East, the FBI anticipates that it will continue to receive information about Mr. Bassiouni. … The Bureau’s file on Mr. Bassiouni will provide context for evaluating that new information…. We believe that the purposes identified by the Bureau fall within “authorized law enforcement activity” conducted by the FBI. We note … that the realm of national security belongs to the executive branch, and we owe considerable deference to that branch’s assessment in matters of national security. Furthermore, although the Privacy Act certainly does not authorize collection and maintenance of information of private citizens on the “off-hand” chance that such information may someday be useful, it does not require law enforcement agencies to purge, on a continuous basis, properly collected information with respect to individuals that the agency has good reason to believe may be relevant on a continuing basis in the fulfillment of the agency’s statutory responsibilities.

It is a short opinion, and worth a read. Sounds like a case of six degrees of separation.

SOTU: "Freedom Is On The March"

by Roger Alford

The key foreign relations component of President Bush’s State of the Union speech last night was the global march of democracy. It is now beyond dispute that this issue is the key to his foreign relations agenda for the second term. As he put it, “Every step toward freedom in the world makes our country safer, and so we will act boldly in freedom’s cause.”

Two sections in particular are worthy of note. First, is the historical progress of democracy in recent decades:

Far from being a hopeless dream, the advance of freedom is the great story of our time. In 1945, there were about two dozen lonely democracies on Earth. Today, there are 122. And we are writing a new chapter in the story of self-government – with women lining up to vote in Afghanistan … and millions of Iraqis marking their liberty with purple ink … and men and women from Lebanon to Egypt debating the rights of individuals and the necessity of freedom. At the start of 2006, more than half the people of our world live in democratic nations.

The other related to the messy state of affairs of the movement toward democracy in the Middle East:

The United States of America supports democratic reform across the broader Middle East. … The great people of Egypt have voted in a multi-party presidential election – and now their government should open paths of peaceful opposition that will reduce the appeal of radicalism. The Palestinian people have voted in elections – now the leaders of Hamas must recognize Israel, disarm, reject terrorism, and work for lasting peace. Saudi Arabia has taken the first steps of reform – now it can offer its people a better future by pressing forward with those efforts. Democracies in the Middle East will not look like our own, because they will reflect the traditions of their own citizens. Yet liberty is the future of every nation in the Middle East, because liberty is the right and hope of all humanity. The same is true of Iran… [O]ur Nation hopes one day to be the closest of friends with a free and democratic Iran.

This portion of the speech is particularly revealing. Bush is clearly willing to take serious short-term risks in the Middle East in the hopes of long-term democratic reform.

There was one aspect of the speech that caused a definite disconnect for me. He clearly expressed a willingness to contextualize the spread of democracy in the Middle East, for democracy there must “reflect the traditions of their own citizens.” But then he took the unusual step of sharply criticizing radical Islam. He stated that “No one can deny the success of freedom, but some men rage and fight against it. And one of the main sources of reaction and opposition is radical Islam – the perversion by a few of a noble faith into an ideology of terror and death…. They seek to impose a heartless system of totalitarian control throughout the Middle East, and arm themselves with weapons of mass murder.”

The same disconnect was evident in his discussion of Iran. Bush tried to speak directly to the people of Iran, over the heads of the Iranian leaders, without pausing to recognize that it was an election that elevated the madman Mahmoud Ahmadinejad to the position of President of Iran.

Of course, what we may see in the Middle East is a heartless system of democratic control, with elected leaders espousing radical Islam and arming themselves to the teeth with weapons of mass murder. The Arab street may yearn for freedom, but we may not warmly greet freedom’s manifestation there. President Bush is trusting that the end result will be worth the risk.