Archive for
March, 2006

Text of Conversation with Secretary Rice

by Roger Alford

Debating the Iraq War

by Chris Borgen

Justice Kennedy and the Law of Treaties

by Duncan Hollis

ASIL Passes Historic Resolution

by Roger Alford

Justice Kennedy Speaks out on Darfur in ASIL Keynote

by Peggy McGuinness

Thanks for a Wonderful Opinio Juris Reception at ASIL Meeting

by Peggy McGuinness

The Security Council’s “Statement” on Iran

by Julian Ku

Chinese Arbitration Official Arrested

by Roger Alford

Let’s Play “Pass the War Criminal”

by Julian Ku

War Resolution Proposed by ASIL Executive Council

by Roger Alford

Opening Event at the ASIL

by Roger Alford

Bolton Starts Another Useful Fight Over U.N. Dues

by Julian Ku

The Supreme Court’s Other International Case – Treaty Rights and Remedies

by Julian Ku

Taylor Reappears; Handed Over to Liberia

by Julian Ku

The Future of Newspapers

by Roger Alford

Hamdan’s Conspiracy Theory – A Debriefing

by Julian Ku

ICJ Raises Its Cone of Silence

by Julian Ku

Hamdan’s Oral Argument – Conspiracy and the Law of War (Updated)

by Julian Ku

The Opacity of Transparency International

by Roger Alford

Hamdan: International Law as a Weapon for the Prosecution

by Julian Ku

100 Ways International Law Shapes Our Lives

by Chris Borgen

Serbia Admits Officials Hiding Mladic

by Kevin Jon Heller

Charles Taylor Disappears

by Julian Ku

Joking about International Law

by Duncan Hollis

ASIL/ITA Conference on the Iran-U.S. Claims Tribunal at 25

by Roger Alford

Dodging Hamdan: Does Conspiracy Violate the Law of War?

by Julian Ku

Internet Filtering and the WTO

by Roger Alford

Welcome to Duncan Hollis

by Chris Borgen

New Documents Reveal Kissinger’s Support of 1976 Coup in Argentina

by Kevin Jon Heller

International Week at SCOTUS: Will They Resolve the Self-Executing Treaty Puzzle?

by Julian Ku

Should Scalia Recuse Himself from Hamdan?

by Chris Borgen

Russian President Plagiarized Ph.D. Thesis

by Kevin Jon Heller

Prosecution of Christian Highlights Deeper Conflict Between West and Islam

by Roger Alford

Bush Refuses to Let Cuba Donate Baseball Prize Money to Katrina Victims

by Kevin Jon Heller

Charles Taylor to Be Turned Over for Trial

by Chris Borgen

Global Governance – Who Should Regulate the Internet?

by Julian Ku

Rwanda Intends to Prosecute Bagambiki Following ICTR Acquittal

by Kevin Jon Heller

Opinio Juris Reception at the ASIL Annual Meeting

by Chris Borgen

Internet Use by Americans

by Roger Alford

Indian Supreme Court Redefines Cruelty and Torture

by Roger Alford

The ICJ’s Cone of Silence

by Julian Ku

The “Law Enforcement” War on Drugs

by Julian Ku

“The Cognitive Psychology of Circumstantial Evidence” Posted at SSRN

by Kevin Jon Heller

Ordering Subordinates to Engage in Civil Disobedience

by Roger Alford

More Thoughts on the CPT

by Kevin Jon Heller

Pacifist Hostages Rescued in Iraq

by Roger Alford

UK House of Lords Upholds Ban on Student’s Muslim Dress

by Julian Ku

Judge Indicts 13 Former Chilean Army Officers Involved in the Caravan of Death

by Kevin Jon Heller

Vatican-Sponsored Conference Attempts to Rehabilitate the Crusades

by Kevin Jon Heller

The Most Dangerous Branch? Yale Law’s Symposium on Executive Power

by Julian Ku

Iranian Hostages and the Algiers Accords

by Roger Alford

Pandas as Trojan Horses

by Julian Ku

UNHCR Releases Disturbing Report on Asylum Seekers

by Kevin Jon Heller

32 Indicted in Plot to Blow Up Spain’s National Court

by Kevin Jon Heller

Guilty Verdict at Abu Ghraib Dog Handler Trial

by Peggy McGuinness

French Slogans Then and Now

by Roger Alford

Justice v. Democratic Amnesty

by Julian Ku

Trade Liberalization Winners and Losers

by Roger Alford

The (International) Right to Bear Arms

by Julian Ku

A Trilateral Commission Emerges in Asia

by Julian Ku

The ICC’s First Prisoner

by Julian Ku

Afghan Man Faces Execution for Converting to Christianity

by Kevin Jon Heller

How to Remember Milosevic

by Roger Alford

Peace Through Autos

by Kevin Jon Heller

Gender Equality at the Football Pitch

by Roger Alford

Saddam’s Iraq and Global Terrorism – A Second Glance

by Julian Ku

Pirates — Version 2.0

by Kevin Jon Heller

Opting Out of Citzenship

by Roger Alford

Newly Released Document Calls into Question Saddam-Zarqawi Link

by Kevin Jon Heller

First Indictee in ICC Custody

by Kevin Jon Heller

ICTY Convicts Two in First Mujahedin Case

by Kevin Jon Heller

Foreign Investment Survey: Yes, No, Maybe

by Roger Alford

AP and AFP on Milosevic’s Funeral

by Kevin Jon Heller

The International Law of Arms Control

by Julian Ku

U.S. Military Withdraws Troops… From Iceland

by Julian Ku

Cite Foreign Law and Risk Death

by Chris Borgen

Bush’s National Security Strategy: Flexing Executive Muscle

by Julian Ku

How Kristof Gets It Done

by Roger Alford

Don’t Bury the ICTY With Milosevic

by Roger Alford

U.S. Relents: Agrees to Support New Human Rights Council

by Julian Ku

Live Blogging from Abu Ghraib Dog Handler Trial

by Peggy McGuinness

Fomer Bolivian President Faces Treason Charges (UPDATED)

by Kevin Jon Heller

UN Approves New Human Rights Council

by Kevin Jon Heller

Exxon, the Alien Tort Claims Act, and Indonesia (Updated)

by Julian Ku

A Stinging Rebuke of Radical Islam

by Roger Alford

Saddam Bounced Out of European Court of Human Rights

by Julian Ku

The Abu Ghraib Files

by Peggy McGuinness

Paternal Parental Choice and the ECHR

by Roger Alford

Collective Action Problems: The AU, U.N. and ICC Play Pass the Buck

by Julian Ku

The Milosevic Mystery (UPDATED)

by Julian Ku

The WTO and Judicial Abstention

by Roger Alford

US Alone in Opposing New Human Rights Council

by Kevin Jon Heller

Philippe Kirsch Re-Elected ICC President

by Kevin Jon Heller

Roberts’ Speech at the Reagan Library

by Roger Alford

Is the U.S. Warming to the ICC?

by Julian Ku

Milosevic Is Dead

by Roger Alford

Love Thy Enemy, But Not The Enemy Of Thy Enemy

by Roger Alford

Moral Equivalence? China Release Human Rights Report on U.S.

by Julian Ku

State Department Releases Human Rights Report

by Roger Alford

Translation Error Leads ICTY to Reduce Sentence

by Kevin Jon Heller

Dry Feet on an Old Bridge

by Roger Alford

Investment Treaties

by William S. Dodge

IRA No Longer a Terrorist Threat

by Kevin Jon Heller

Larry Johnson Named UN Assistant Secretary-General for Legal Affairs

by Roger Alford

Criticism of Algeria’s New General Amnesty

by Kevin Jon Heller

My Latest Blast at Judicial Treaty Activism

by Julian Ku

Ali v. Rumsfeld Update: Rumsfeld Invokes Immunity

by Julian Ku

Territoriality

by William S. Dodge

A Taxonomy of Legal Blogs

by Roger Alford

Chinese Politics at the Academy Awards

by Julian Ku

Ali Farka Toure Dies

by Kevin Jon Heller

Concerns about the Trial of Afghanistan’s Former Spy Chief

by Kevin Jon Heller

Most Popular Law Blogs

by Roger Alford

Thoughts on Rumsfeld v. FAIR

by Roger Alford

Can Administrative Law Go Global? (And Should Lawyers Care?)

by Julian Ku

ICTR Defense Attorney Wanted for Genocide

by Kevin Jon Heller

The Death of a Genocidier

by Roger Alford

Exploring the Limits of International Human Rights Law

by Peggy McGuinness

Community Investment Loans

by Roger Alford

In Memory of Edward R. Cummings

by Chris Borgen

Crisis Watch — March Report

by Kevin Jon Heller

Supreme Slumber

by Roger Alford

US Settles with 9/11 Detainee

by Kevin Jon Heller

The Coming Revolution in Outsourcing

by Roger Alford

The Congressionally-Mandated War on Drugs

by Julian Ku

America’s Worst Geopolitical Blunder?

by Chris Borgen

Possible Delay in U.N. Human Rights Council Vote

by Julian Ku

International Law Faculty New and Lateral Hires

by Roger Alford

Did China Invent Golf?

by Kevin Jon Heller

China to Hear More Death Penalty Appeals in Open Court

by Kevin Jon Heller

The Business Opportunity of Ethical Behavior

by Roger Alford

After Enigma

by Chris Borgen

Welcome to New Contributor Kevin Heller

by Peggy McGuinness

No Inherent Executive Authority Here: Congress Must Approve U.S.-India Nuclear Deal

by Julian Ku

More Insightful Analysis of Iraq Courtesy of Fox News

by Kevin Jon Heller

We’ve Moved!

by Chris Borgen

We are now located at the new and improved Opinio Juris site: www.opiniojuris.org.

We’ll see you there…

Pope’s Ash Wednesday Message Focuses on World Poverty

by Roger Alford

Pope Benedict XVI issued his Ash Wednesday sermon today and focused on development and world poverty. Here is an excerpt:
“Even in this era of global interdependence, it is clear that no economic, social, or political project can replace that gift of self to another through which charity is expressed. Those who act according to the logic of the Gospel live the faith as friendship with God Incarnate and, like Him, bear the burden of the material and spiritual needs of their neighbours…. [M]any forms of charitable work intended to promote development have arisen in the Church: hospitals, universities, professional formation schools, and small businesses. Such initiatives demonstrate the genuine humanitarian concern of those moved by the Gospel message, far in advance of other forms of social welfare. These charitable activities point out the way to achieve a globalization that is focused upon the true good of mankind and, hence, the path towards authentic peace. … [T]he Church today considers it her duty to ask political leaders and those with economic and financial power to promote development based on respect for the dignity of every man and woman. An important litmus test for the success of their efforts is religious liberty, understood not simply as the freedom to proclaim and celebrate Christ, but also the opportunity to contribute to the building of a world enlivened by charity. These efforts have to include a recognition of the central role of authentic religious values in responding to man’s deepest concerns, and in supplying the ethical motivation for his personal and social responsibilities. These are the criteria by which Christians should assess the political programmes of their leaders.”

Journalists and Self-Defense in Iraq

by Kevin Jon Heller

In the wake of the murder of al-Arabiya correspondent Atwar Bahjat and two of her colleagues, a journalist asked President Jalal Talabani to permit journalists working in Iraq to carry weapons in self-defense. “Send me an official request and I will approve it and inform concerned agencies to give you the right to carry arms,” President Talabani replied.

The exchange prompted an immediate response from the International News Safety Institute, which urged journalists in Iraq to resist the urge to arm themselves. INSI believes that armed journalists would be less safe, not more:

“Journalists increasingly are being targeted in conflict largely because they have lost, in the eyes of certain elements, their status as neutral observers, INSI Director Rodney Pinder said. “If they bear arms they reinforce this misguided belief by placing themselves on one side or another. A journalist with a gun says some people in the situation I’m covering are my enemies and I am prepared to kill them if necessary. That is not the position of a neutral civilian.”

Pinder also said that armed journalists would lose even the protection–“flimsy though it is”–afforded civilians in war by the Geneva Conventions. INSI said the 1977 Additional Protocol to the conventions demands that working journalists in conflict areas must be considered civilians, “provided they take no action adversely affecting their status as civilians.”

“INSI and other organizations concerned with the safety of journalists in conflict believe that the bearing of arms would amount to that action,” the group said.

Although it’s easy to understand why in Iraq would want to carry arms in self-defense — after all, 104 journalists and support staff have been killed there since the war began, the greatest media toll in modern times — INSI’s position seems pragmatically sound. Still, I question whether journalists would, in fact, forfeit the protection of the Geneva Conventions by carrying weapons, particularly if they only carried small arms and kept them concealed. Article 79 of Protocol I specifically provides that

[j]ournalists engaged in dangerous professional missions in areas of armed conflict shall be considered as civilians… and shall be protected as such under the Conventions and this Protocol, provided that they take no action adversely affecting their status as civilians.

The question, then, is whether a civilian who carries a weapon in self-defense would be taking an “action adversely affecting their status as civilians.” The answer appears to be “no.” Under Article 13 of Protocol II, which elaborates and strengthens common Article 3’s basic rules, “[c]ivilians shall enjoy the protection afford by this Part, unless and for such time as they take a direct part in hostilities.” Carrying a weapon in self-defense would not qualify as taking a “direct part” in hostilities. As the Inter-American Commission on Human Rights has pointed out:

It is generally understood in humanitarian law that the phrase “direct participation in hostilities” means acts which, by their nature or purpose, are intended to cause actual harm to enemy personnel and material. Such participation also suggests a “direct causal relationship between the activity engaged in and harm done to the enemy at the time and place where the activity takes place.”

This interpretation of common Article 3 and Protocol II is supported by Protocol I’s treatment of individuals engaged in civil defense — humanitarian tasks (medical treatment, firefighting, etc.) designed to protect civilians against the effects of hostilities. Article 65 of Protocol I specifically provides:

It shall also not be considered as an act harmful to the enemy that civilian defence personnel bear light individual weapons for the purpose of maintaining order or for self-defence. However, in areas where land fighting it taking place or is likely to take place, the Parties to the conflict shall undertake the appropriate measures to limit these weapons to handguns, such as pistols or revolvers, in order to assist in distinguishing between civil defence personnel and combatants. Although civil defence personnel bear other light individual weapons in such areas, they shall nevertheless be respected and protected as soon as they have been recognized as such.

Moreover, even if a journalist crossed the line between self-defense and acts harmful to the enemy, they would still not be subject to immediate attack by Iraqi insurgents or the military (Iraqi or US). According to paragraph 1 of Article 65:

The protection to which civilian civil defence organizations, their personnel, buildings, shelters and materiel are entitled shall not cease unless they commit or are used to commit, outside their proper tasks, acts harmful to the enemy. Protection may, however, cease only after a warning has been given setting, whenever appropriate, a reasonable time-limit, and after such warning has remained unheeded.

Again, I am not suggesting that journalists in Iraq arm themselves. I much prefer the approach taken by Reporters Without Borders, which lends bulletproof jackets marked “PRESS” to freelance journalists working in war zones. But I don’t believe that a journalist who carried a concealed handgun would forfeit her Geneva Convention protections — even if she was forced to use it.

Comments by readers with greater expertise in the Conventions would be most appreciated.

Sarah Cleveland and "Our International Constitution"

by Roger Alford

Sarah Cleveland has just published a very significant article in the Yale Journal of International Law entitled “Our International Constitution.” Cleveland is a great writer and her article is a pleasure to read, even though I sharply differ with her on the appropriateness of using international law to interpret constitutional guarantees (see my articles here, here and here).

Cleveland is an evolving constitutionalist and a strong proponent of the use of international law in constitutional interpretation. She offers a cornucopia of evidence of its historical use. She distinguishes between express references to international law (as with the treaty power or the war power), identifies subjects in which international law provides background principles (such as territoriality and sovereignty), and then highlights instances of its use in protecting or curtailing individual rights.

After canvassing the historical record her conclusions are that there is a longstanding tradition of resorting to international law, that the Court has treated that law as evolving, and sometimes it has even considered international law to be binding. She also recognizes that reference to international law has been opportunistic and has frequently resulted in the expansion of government power and the curtailment of individual rights.

But what really distinguishes Cleveland’s article is her attempt to impose principled limits on the use of international law. She proposes guidelines for its use, including (1) the constitutional receptiveness to the international rule, (2) the universality of the international norm, (3) acceptance of the international rule by the United States, and (4) embracing international law limits that accompany international powers.

The article is interesting in that applying her principled approach, Cleveland offers only the faintest of praise for Roper and Lawrence. She describes Lawrence as raising “thorny questions regarding selectivity and cultural relevance.” She could have gone further and simply stated that Lawrence does not comport with the universality principle. Instead she argues that Lawrence is consistent with a longstanding jurisprudential traditional of looking to Western European practices. But then when she turns to abortion she seems to more strictly enforce the rule of universality, and suggests a requirement of an international consensus, which she contends is lacking. Of course, you could make the counter-argument that there is no international consensus in favor of the practice at issue in Lawrence but there is a Western European consensus against the practice at issue in Roe.

As for Roper, Cleveland says that the U.S. failure to sign or ratify the U.N. Convention on the Rights of the Child was a “mixed factor” and that the ICCPR reservation on juvenile death penalty expressed a clear intent not to be bound by that treaty provision. She nonetheless argues that the United States is not a consistent objector of a customary international norm against juvenile death penalty. But by importing customary international and requiring the United States to be a consistent objector, she has essentially flipped the Eighth Amendment test — which traditionally requires a national consensus that a practice has become cruel and unusual — to a requirement of a national consensus to reject an international norm. She could have placed far greater emphasis on the U.S. reservation in the ICCPR, which guaranteed the right of the States to continue with the status quo, as underscoring that the United States has not accepted this norm. She could have just conceded that the United States has not accepted this international norm and that Roper did not represent a principled approach to the use of international law.

Whether you agree or disagree with Cleveland’s article, you cannot ignore its importance. I seriously question the notion that an evolving Constitution should float with the shifting currents of international values. And I would have preferred a stronger application of her principles to Roper and Lawrence. But as a proponent of the practice, Cleveland deserves great credit for her bounded rationality in the use of international law to interpret our Constitution.