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.”

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.

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.

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.

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.

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

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.

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.

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.

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.

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.

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.

Here is an edited version of some of the results:

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 U.S.is 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.

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.

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.

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.

• 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.

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.”

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.

• 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)

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.

[snip]

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.

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 www.opiniojuris.org, 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.

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 intere