Archive for
August, 2008

The Next President’s Detention Power

by Deborah Pearlstein

There’s so much domestic news these days it would’ve been easy to miss Eric Lichtblau’s story in yesterday’s New York Times about legislation introduced in Congress just before the August recess that would substantially define the scope of the United States’ war with Al Qaeda, et al. Indeed, it’s not clear why the Times itself finally just realized the significance of the bill – it was introduced back in July. Late though it may be, the Times was right to note the bill’s significance. Introduced by Senators Lieberman and Graham in the Senate (with a companion bill in the House), the bill is principally devoted to further tinkering with the review scheme for Guantanamo detainees, a response to the Supreme Court’s recognition of constitutional habeas rights for the detainees in last term’s Boumediene case.  Beyond that, though, it carries a major new authorization for executive detention – the grandest by far since the original authorization for the use of military force Congress passed in the weeks just after 9/11.  Here’s the key provision…

Watching Gustav Roll Toward the Gulf Coast, and the Importance of Security to Evacuation

by Kenneth Anderson

… and hoping that the damage is minimal and that everyone is safe, including any OJ readers.  Watching the television today caused me to recall a conference I attended a few years ago, a meeting of humanitarian disaster professionals who dealt with developing world disasters ranging from natural disasters to conflict relief.  At one session, on natural disasters and, as it turned out, especially focused on coastal flooding, one of the panelists asked what the biggest need was in situations in which mass evacuation was the best course of action.  The answer was security.  He said, in passing, that whenever he watched television of natural disasters in the developed world, he was always struck by how quickly and immediately – not medicine or food or water, even, to my surprise – but how quickly national guard or similar troops were on the street.  To prevent, as he said, looting (this was years pre-Katrina).  Why was this so important?  Because otherwise, he said, people would not evacuate.  They would not dare leave their property, for fear of it being looted and stolen.  No one would evacuate, and many more might die.  Mass evacuations, someone else pointed out, are important because emergency services can at best deal with a tiny percentage of people, and if you get 95% of the people out of the way, you might have a chance at dealing with the remaining 5%.  But far fewer will go, especially if the weather pattern is uncertain, if they fear that there will be little or no public security to protect their property.  And someone else pointed out that it was in some ways a luxury even to have places to which the population could be evacuated; mass evacuations are relatively rarely attempted in the poor world even when, if it were the US Gulf Coast, for example, it would be the obvious policy. This was on my mind watching Gustav roll in; it appears, at this moment, that it will be less severe than feared, but who knows and for those who might be in the storm’s path, best wishes and God bless.  And please remember the victims of this storm who have already been hit beyond US borders, in the Caribbean islands, Haiti and elsewhere; I’m linking here to MSF, but there are many other charities too that do good and efficient work in these situations.

Posada Carriles to Stand Trial

by Kevin Jon Heller

My blogging has slowed down the past couple of weeks, because I’ve been traveling and finishing a book chapter that criticizes Moreno-Ocampo’s approach to deciding which situations to investigate.  (See my previous post.)  But I would be remiss if I did not mention this interesting piece of news — the Fifth Circuit has reversed the district court’s dismissal of the immigration charges against Luis Posada Carriles and ordered him to stand trial:

A U.S. appeals court has ruled that an anti-Castro Cuban exile and former CIA operative accused in Cuba of a 1976 plane bombing that killed 73 people should stand trial for an immigration violation, court records showed on Friday.

The U.S. 5th Circuit Court of Appeals in New Orleans on Thursday said a lower court erred in dismissing an indictment against Luis Posada Carriles days before he was to stand trial in El Paso, Texas, for allegedly lying during 2006 efforts to become a naturalized U.S. citizen.

The court sent the case back to U.S. District Judge Kathleen Cardone, who threw the charges out last year on grounds of government misconduct.

Given that Posada Carriles is currently a free man in Miami, this is good news.  The timing of the decision, however, is more than a little curious: the Fifth Circuit released its decision just three days after the Vice-President of Panama said that his government would seek Posada Carriles’ extradition on far more serious terrorism charges.  I’m reluctant to suggest that the Fifth Circuit was influenced by Panama’s actions, but you can’t blame Cuba for being upset that the court has effectively guaranteed — at least for now — that Posada Carriles will not face the justice he so richly deserves.

Why Do Treaties Create Private Rights of Action?

by Duncan Hollis

The Supreme Court’s Medellin decision has generated lots of academic attention (Julian and I, for example, are both participating in a joint ASIL-ABA Task Force on Treaties developed to address the future status of treaties in US law, which I’m sure will generate blog posts from one or both of us in the months ahead). This past week also saw the DC Circuit rely on Medellin explicitly in an August 26 opinion in the long-running case of McKesson v. Iran (this was not the first Appellate decision re treaties post-Medellin though, the Fifth Circuit, for example, took up that topic back in June).

McKesson was returning for its 5th visit to the DC Circuit, still plugging away at a claim originally made in 1982 against the Iranian government for taking a U.S. company’s holdings in an Iranian dairy interest post-Revolution.  McKesson has long argued that the 1955 Treaty of Amity prohibitions on expropriation without just compensation entitle it to relief in U.S. courts.  Ignoring the irony of a Treaty of Amity with Iran today, the D.C. Circuit disagreed; holding that even though the treaty was self-executing, and thus part of the supreme Law of the land, its provisions failed to overcome a standing presumption against private rights of action…

Is the ICC Prosecutor in Trouble?

by Kevin Jon Heller

The Guardian seems to think so:

A coalition of human rights lawyers, academics and leading non-governmental organisations (NGOs) has begun openly to criticise the competence and conduct of the prosecutor of the international criminal court, the Argentinian Luis Moreno-Ocampo. Their concerns follow his announcement last month that it is to seek an arrest warrant for genocide against the Sudanese president, and the collapse of the five-year-old court’s first trial.

Supporters of the court fear that Moreno-Ocampo’s style of management is damaging the court’s credibility and its ability to prosecute those responsible for crimes against humanity. He has been accused of alienating senior staff and seriously misreading the situation in Sudan. One academic has called for the court to consider removing him.

The concerns have been compounded by the way in which Moreno-Ocampo dismissed his media adviser, who made a complaint against him of sexual misconduct with a South African female journalist. That complaint, denied by Moreno-Ocampo and the woman involved, was dismissed by the court as “manifestly unfounded”. But last month the adviser, Christian Palme, was awarded two years’ salary as compensation for wrongful dismissal and €25,000 (£19,700) in moral damages by a tribunal of the International Labour Organisation. It found that the prosecutor had not followed due process and had “seriously infringed” Palme’s rights. The NGOs which support the court are likely to call for a new oversight mechanism as a result.

It’s an interesting article, well worth a read.  I have never been a fan of Moreno-Ocampo’s, but…

Andrew C. McCarthy on ‘Libel Tourism’

by Kenneth Anderson

I have blogged in the past about the growing phenomenon of ‘libel tourism’ and its chilling effects upon free expression, as well as some (really, considering the free expression issues under threat, quite modest) New York state and US federal legislative efforts to deal with it.  It amounts to using English courts and their views on libel, together with the interconnectedness of the English-language publishing market, especially the academic market, to allow rich people – in particular, one Saudi billionaire with Irish citizenship, Sheikh Khalid bin Mahfouz – to squelch what, in the United States, would be free expression of an entirely unremarkable kind.  Andrew McCarthy has a welcome essay in the September 2008 Commentary magazine (sub req’d) on the phenomenon and efforts to roll it back.  One thing I hadn’t realized was the extent to which bin Mahfouz has been successful – according McCarthy, citing the late Alms for Jihad author Robert O. Collins, in “three dozen cases in which legal action has been either threatened or carried through to trial, bin Majfouz has succeeded in securing apologies and cash damages.” (emphasis added)  I thought I knew something about the subject, but I had no idea it was so many.  (Update:  Note Ruth Wedgwood’s comment.  Welcome, Ruth!)

Viral Sovereignty and Intellectual Property

by Chris Borgen

The blog Futurismic as an interesting post on “viral sovereignty.” According to a recent Washington Post op-ed by Richard Holbrooke and Laurie Garrett

This extremely dangerous idea comes to us courtesy of Indonesia’s minister of health, Siti Fadilah Supari, who asserts that deadly viruses are the sovereign property of individual nations — even though they cross borders and could pose a pandemic threat to all the peoples of the world.

And, in case you think this is just a quirky footnote, Holbrooke and Garrett explain:

 A year ago, Supari’s assertions about “viral sovereignty” seemed to be odd yet individual views. Disturbingly, however, the notion has morphed into a global movement, fueled by self-destructive, anti-Western sentiments. In May, Indian Health Minister A. Ramadoss endorsed the concept in a dispute with Bangladesh. The Non-Aligned Movement — a 112-nation organization that is a survivor of the Cold War era — has agreed to consider formally endorsing the concept of “viral sovereignty” at its November meeting.

Check out both the post at Futurismic and the underlying op-ed.

When Is a Treaty Supreme over the Constitution?

by Roger Alford

That essentially was the question the Ninth Circuit had to address in the recent case of United States v. Liu. The question arose out of a criminal prosecution by the United States against defendant for running a brothel in Saipan. Defendant argued that the United States had no authority to prosecute her under the commerce clause or the territorial clause. The surprising conclusion of the Ninth Circuit was that, to the extent the applicable treaty did not preclude Congress from regulating pursuant to the commerce clause, Congress had the constitutional authority to do so. Thus, the treaty trumps the Constitution in that it limits the application of constitutional provisions in a United States territory.

Joe Biden, World Government Guy

by Peter Spiro

Some hard-working soul on the Democratic vice presidential vetting team had to make her way through a law review article Joe Biden co-authored in the late 1980’s on constitutional war powers. The piece is pretty safe stuff, advocating a “joint decision model” for use-of-force decisionmaking. In the course of proposing some fixes to the War Powers Resolution, however, there is one suggestion that might not sit too well with the black helicopter set . . .

Georgia, South Ossetia, and Abkhazia

by Kenneth Anderson

(Welcome Instapunditeers and Volokh Conspirators and others; thanks Glenn and Eugene for the links!)

I wrote a couple of weeks ago about my experiences in Georgia in the early 1990s, monitoring the various conflicts – Abkhazia, South Ossetia, and the then-Georgian civil war in Tbilisi – and noting that the secessionist conflicts were marked on each side by ethnic cleansing as extreme as anything I saw in the Yugloslav wars, a country which I also monitored for Human Rights Watch, during the mid-1980s on through the early years of those wars.  The reasons why the two resembled each other seemed to me pretty obvious – the motivations (to clear ground and homogenize populations) were similar, the militia armies similar, the armaments similar …  

Well.  I declined in that post to say anything about the current situation, although I have been pressed by a couple of friends since to say something about it.  I have hesitated because I have only been in Tbilisi a couple of times since those days and I have not spent time focusing on the political situation there and the development of its democracy or the US role.  Anything I have to say can and should reasonably be discounted as unwarrantedly fixed on the situation from fifteen years ago; at the same time, the wars of fifteen years ago are what the current situation is largely about, so it has advantages and disadvantages.  And I can’t say that many of the people with whom I’ve spoken about the situation today were either much aware of the conduct of those wars – unlike, by sharp contrast, their deep awareness of the conduct of the Yugoslav wars – or even appear to have had much contact with the secessionist territories.  

All that said, here are my basic concerns; take them for what you think they are worth, and I fully understand that many will disagree:

The Cleanest Games Ever

by Maidie Oliveau

This year, I am watching the Olympic Games on television in the United States for the first time since the 1988 Seoul Olympic Games. It has been my singular honor to have been selected to be an arbitrator on the ad hoc Division of the Court of Arbitration for Sport at the last four Olympic Games. Serving on the Division is such a desirable gig among the CAS arbitrators that it is now someone else’s turn … so I have a new perspective from which to watch. I still enjoy my role as a CAS arbitrator and am thus an avid watcher of the Division’s activities. And of course, I am always looking at the Games from my sports business perspective.

The controversies have been few and, even more surprising after Jacques Rogge predicted 40 positive doping tests, so far I have only seen 4 reported. Maybe that rhetoric worked its magic or all those pre-Games withdrawals took care of the anticipated positives. We can expect these Games to be the cleanest ever…

Ambiguity in International Law and Diplomacy, and the Ambiguous Meaning of Multilateralism at the UN

by Kenneth Anderson

I have been writing this summer about the UN, and most recently about the ways in which the institution(s) is founded upon a long list of antinomies and ambiguities that allow various participants to take things how they will. This in turn has caused me to think about the virtues and vices of ambiguity in international law and diplomacy more broadly.  

At the UN, in the grand conceptualizing of the UN, a core ambiguity lies in the term and usage of “multilateral.”  For some, multilateral means no more and no less the coming together – or not – of sovereigns around particular issues, without any ultimate compromise into the future of their sovereignty notwithstanding their cooperation on a particular issue in the present.  For others, however, multilateral means this kind of cooperation in the present, but with an expectation, a forward looking expectation, that such cooperation must at some point mean, or solidify within expected behavior, or imply a relinquishment of sovereignty in favor of some other paradigm, most typically global governance. Each can plausibly call itself “multilateral,” because the difference is largely one of expectation and orientation toward the future.  And it is noteworthy how much can be done on particular issues in the present even when different parties have different understandings of that core term.  So long as the ‘present’ is a forever concept and the glorious future of ‘ceded sovereignty’ merely a permanently receding horizon, then the ambiguity is never forced to clarity.

Interesting Quote on Russian Invasion of Georgia

by Chris Borgen

Take a look at this commentary about Russia invading Georgia:

In order to be able to deny the invasion of Russian troops, it was first stated that some villages on the Georgian frontier had revolted, embittered by the tyranny of the, Georgians…. Simultaneously, Abkhazia had risen in the extreme northwest, close to the Russian border.

It is a remarkable fact that the rebellions broke out precisely in those places, Armenia, Azerbaijan, and Abkhazia, where large and constantly increasing masses of Russian troops had been quartered since November.

The inhabitants of some Armenian border villages are supposed to have insisted on advancing towards Tiflis (Tbilisi). The Russian Government stated it had endeavored, out of love of peace and benevolence, to help the threatened Georgian regime, and offered its mediation between the Georgians and the Armenians. It could not help it if Georgia contemptuously rejected this mediation.

It was written in 1921.

How Could You Take Away Her Medal? IOC Investigating Chinese Gymnasts’ Age

by Julian Ku

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As we’ve learned from our expert guest-bloggers, there are disputes arising out of the Olympics, and then there are DISPUTES.   The reported International Olympic Committee investigation into the age of Chinese gymnast and gold medalist He Kexin (何可欣) qualifies as the type of DISPUTE that could really get ugly. Why? Because a big part of the investigation will have to deal with alleged Chinese government involvement in covering up the ages of Chinese gymnasts.  The investigation appears to have been spurred by a NY-based blogger whose fascinatingly simple investigation can be found here.  

Politically, I just can’t imagine the IOC will want to embarrass China like this.  And if they do, I sense an ugly nationalist backlash in China.  This is pretty much the ultimate test of the IOC’s commitment to enforcing its rules. And perhaps we can look forward to a nice long arbitration battle afterwards?

Can Mia Farrow and Blackwater Save Darfur?

by Kevin Jon Heller

I know politics makes strange bedfellows, but this is ridiculous:

Two unlikely allies met for breakfast last month in New York to discuss a possible collaboration: Mia Farrow, actress and passionate activist for Darfur refugees, and Erik Prince, founder and CEO of the government contractor, Blackwater Worldwide.

Farrow told ABC News that Blackwater, despite its controversial history and allegations of murdering civilians in Iraq, might be able to help the “hopelessly under-equipped” African Union forces deployed in Darfur with logistics and training.

“Blackwater has a much better idea of what an effective peace-keeping mission would look like than western governments,” Farrow told ABC News from a refugee camp in near the Darfur border.

You mean, like this?

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Or this?  (Warning: graphic image.)

Sergio Vieira de Mello, et al., in Memoriam, Five Years On

by Kenneth Anderson

I would be remiss if I did not mark the fifth anniversary of the tragic death of UN diplomat and humanitarian Sergio Vieira de Mello, who died in the terrorist attack on the UN’s Baghdad headquarters in 2003 along with many other aid and relief workers.  And also – it receives far less attention, alas – the follow-on 2003 attack a few months later on the Baghdad headquarters of the International Committee of the Red Cross, another terrorist attack that killed its own share of innocents and caused the ICRC to pull out of Baghdad.

The Laptop and Internet Debate in Law Classrooms

by Kenneth Anderson

There is nothing international law specific about this pedagogically-oriented post.  But as the new fall semester begins for many readers of this blog, I am curious about where OJ readers stand on the question of limiting or prohibiting laptop use or internet access in classrooms.

Battlefield Robot Target Identification Competition

by Kenneth Anderson

When it comes to battlefield bots and the law, you can take satisfaction that you will have Heard It Here First, unless, of course, you also read Instapundit.  As I’ve said in earlier posts on this subject, the vast, vast majority of the research into battlefield robots has nothing to do with autonomous weapons firing platforms – which is, of course, where the biggest ethical and legal issues arise – but with surveillance and independent target scanning and identification.  But there are some other possible roles for robotics on the battlefield, including things like extraction of the wounded or delivery of supplies.  A lot of the interest is less about autonomous battlefield robots as such than the multiple uses of unmanned vehicles on the battlefield.

Losing Goodwill at the Games

by Roger Alford

The Olympics have been amazing. Great athletes, amazing venues, wonderful organization. The Chinese have much to be proud of. But whatever goodwill that the Olympics have engendered in me is quickly being lost based on their treatment of dissent. The Chinese are being utterly hypocritical in promising to afford opportunities for dissent but not making good on those promises. Demonstrators require permits, but permission is never granted. If you try to procure a permit you will fail in that attempt, as Nicholas Kristof recently reported. But then if you protest without a permit you will be arrested. Five American students are now being detained for unfurling a Free Tibet banner for about twenty second last night at midnight. Twenty seconds of dissent gets you thrown in jail or deported? This could have been prevented had the IOC established appropriate contractual obligations and penalties for violating representations and warranties in the Olympic selection process. IOC President Jacques Rogge strongly supports a rule preventing “no kind of demonstration or political, religious or racial propaganda is permitted in any Olympic sites, venues or areas.” But he should be just as adamant that promises to allow demonstrations in designated areas be enforced.

Can You Guess The Accent?

by Kevin Jon Heller

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The Language Trainers Group has a great new on-line game: trying to guess what country 16 people with different accents are from.  It’s called, not surprisingly, Can You Guess Where My Accent Is From? I scored a 28 — a full 10 points higher than Blake Hounsell, who tipped me off to the game at FP Blog.

And yes, I could tell the difference between a Brit, a Kiwi, an Aussie, and a South African.  Seems I’ve learned something in my two years in the southern hemisphere…

SecState Rice Announces New NATO-Georgia Commission and Discusses U.S.-Russia Relations

by Chris Borgen

For anyone following the situation in Georgia and US/ Russian relations, there was a very interesting statement and Q&A today from Secretary of State Rice, who is in Brussels for meetings at NATO. Among other things, she announced the creation of a new NATO-Georgia cooperative framework and also discussed the concerns about isolating Russia. Among other topics, she also answered questions about the decision by the OSCE to send 100 monitors into Georgia. 

Some of her statements are rather strongly worded but, of course, diplomatic announcements are one thing and actual actions are another. So the questions remain:  Is this NATO-Georgia commission an intermediate step towards a further expansion of NATO’s role in the region (thus possibly further angering Russia) or is it a signal to Russia (with a little face-saving on NATO’s part) that NATO has heard Russia loud and clear and it is putting aside plans of expansion into the Caucasus? Time will tell. For now, here’s Rice’s statement and the Q&A (with some highlighting on my part of passages that I think are especially worthy of note)…

 

UPDATE: See Russian and Georgian reactions (both negative) after the Rice Q&A

Eric Muller on the Lie Behind Hirabayashi

by Kevin Jon Heller

I’ve missed Eric Muller’s blogging at Is That Legal? — but he has obviously put his free time to good use, because his new article on the Supreme Court’s decision in Hirabayashi v. United States is sensational.  Here is the abstract:

This Article presents newly discovered archival evidence demonstrating that government lawyers told a crucial lie to the United States Supreme Court in Hirabayashi v. United States, 320 U.S. 81 (1943), which upheld the constitutionality of a racial curfew imposed on Japanese Americans in World War II.  While the government’s submissions in Hirabayashi maintained that the curfew was a constitutional response to the serious threat of Japanese invasion of the West Coast, new archival findings make clear that military officials foresaw no Japanese invasion and were planning for no such thing at the time they ordered mass action against Japanese Americans.  Even more disturbingly, the archival record demonstrates that at the time the Justice Department lawyers filed their brief in Hirabayashi emphasizing a threatened invasion, they knew this emphasis was false.

The Article seeks to understand what might have led otherwise ethical Justice Department lawyers to present such a big and consequential lie, suggesting that the then-prevalent racial schema of the “Oriental” as an invading horde may have overpowered the lawyers’ evaluation of the facts. And perhaps more importantly, the Article demonstrates that the Hirabayashi decision – which has never been repudiated in the way that the more famous Korematsu decision has been, and which remains a potent precedent for race-conscious national security measures – deserves to be installed in the Supreme Court’s Hall of Shame, alongside Korematsu, Dred Scott, and the Court’s other biggest mistakes.

If you read the article — and I hope you will — I think you’ll agree with Eric’s conclusion.  The article is available on SSRN here.

L’important c’est participer…

by Antonio Rigozzi

The most famous quote from the founder of the modern Olympic Games is: “The important thing is not to win, but to take part” (L’important n’est pas de gagner, mais de participer). So far, the Beijing experience of the CAS Ad Hoc Division seems to give a new relevance to this Olympic slogan.
Indeed, after the first week of competition, the Division had do decide several pre-Olympic disputes regarding the right to take part in the Olympics but has not (yet) been confronted with a single dispute arising out of the competition. Only the future will tell whether this will remain a significant trend or is temporary. As I already indicated following the last Turin Olympics, it is fair to say that the decrease in the number of cases is due to the outstanding work done by the previous Ad Hoc Divisions, which had a preventive effect by encouraging the International Olympic Committee (IOC) and the International Federations (IFs) as well as the National Olympic Committees (NOCs) to enhance their regulations and practice in order to avoid disputes arising.

The present posting is a brief summary of those pre-Olympic cases. In substance they show that the main issues are Selection and Eligibility, whereby the issue of nationality seems to play a dominant role….

Maybe We Should All Buy Him a Time-Share There

by Kevin Jon Heller

John McCain on Guantanamo Bay, during a question-and-answer session with Walter Isaacson:

it may be one of the nicest places in the world to live in.

Hyperbole or not, shouldn’t comments like that disqualify someone from being president?

ADDENDUM: This is a pretty good one, too, concerning Russia’s invasion of Georgia:

My friends, we have reached a crisis, the first probably serious crisis internationally since the end of the Cold War.

Statement from SecState Rice on Georgian Cease-Fire Agreement and Next Steps

by Chris Borgen

Following is a statement that Secretary of State Rice made today in Tbilisi regarding the sirtuation in Georgia, the cease-fire agreement, and next steps. I have also included an excerpt from her Q&A with reporters and highlighted throughout a few parts that I thought were particularly interesting…

It’s Time for Brig. Gen. Hartmann to Go

by Kevin Jon Heller

Last October, Col. Morris Davis resigned as chief prosecutor of the military commissions, claiming that Brig. Gen. Thomas Hartmann had interfered with the prosecutor’s office, pressured him to use classified evidence — requiring sessions to be conducted behind closed doors — and encouraged the use of evidence obtained through waterboarding.  Col. Davis filed a formal complaint at the time, but the Pentagon sided with Hartmann instead.

I think the Pentagon may want to rethink which side it’s on…

The Curious Article 27(3) of the UN Charter

by Kevin Jon Heller

Our friend John Boonstra at UN Dispatch calls attention to a little-used provision of the UN Charter that requires members of the Security Council to abstain from voting on substantive matters when they are a party to a dispute.  Here is the text of Article 27(3):

“Decisions of the Security Council on all other matters shall be made by an affirmative vote of nine members including the concurring votes of the permanent members; provided that, in decisions under Chapter VI, and under paragraph 3 of Article 52, a party to the dispute shall abstain from voting.”

John discusses the potential impact of Article 27(3) on a draft resolution circulated by France on Monday that calls for a cessation of hostilities, a return to the August 7 status quo, and a reaffirmation of Georgian territorial integrity.  He notes, quite rightly, that the odds are against the Article being invoked, given that it has not been used since the early days of the UN.  (The most recent example being, according to Security Council Report, Argentina’s abstention from a 1960 vote on whether Israel’s capture of Eichmann on Argentine territory violated its sovereignty.)

It’s a fascinating issue — but my interest in Article 27(3) is a bit different…

Parsing the Georgian Cease-Fire Agreement

by Chris Borgen

The New York Times has posted online the (possibly fraying) cease-fire agreement concerning the conflict in Georgia.

At the time of its signing, President Sarkozy had said something to the effect that this is not a document for a lasting peace, but rather to just to stop the shooting.  Looking at the text, I can see why he wanted to make that clear.  In the various pieces I’ve written (either on this blog or in law journals) on the conflicts in Georgia, Moldova, and the other frozen conflicts, I have tried to show that international law can play a useful role in conflict resolution. Peggy McGuinness introduced me to the phrase “negotiating in the shadow of international law” to describe the phenomenon I was writing about.

This agreement, though, seems more like the result of “negotiating in the shadow of an armored division.”

Here are a few points that I think worthy of note…

UPDATE: Secretary Rice speaks about the cease-fire agreement and next steps.

Russia’s Reversal on the ICC?

by Kevin Jon Heller

According to Interfax, Russia is considering referring the situation in South Ossetia to the ICC. It quotes Russia’s Prosecutor General, Yury Chaika, as saying that he “doesn’t think setting up a special [international] court is necessary. Complaints and applications from our citizens which will be referred to the International Criminal Court would suffice.”  That’s an interesting statement, given that Russia has signed but not ratified the Rome Statute (citing constitutional issues) and has strongly criticized Moreno-Ocampo’s decision to indict Bashir on genocide charges. A decision by Russia to formally seek ICC involvement in South Ossetia would thus represent a considerable shift in policy toward the Court, perhaps opening the door to eventual ratification of the Rome Statute — which would be a very good thing, both for Russia and for the ICC.

We will see what happens.  Human Rights Watch has already publicly claimed that Russia is deliberately exaggerating the number of civilian casualties in South Ossetia.  If that’s true, Russia’s ICC claims may prove to be all talk and no action.

UPDATE: You can’t trust the media to get anything right.  The original version of this post cited an AFP report that Georgia had asked the ICC Prosecutor to investigate the situation in South Ossetia.  As Andreas Paulus kindly pointed out in the comments, that report is inaccuate — in fact, Georgia has filed a complaint for ethnic cleansing with the ICJ.

UPDATE 2: Moreno-Ocampo has acknowledged that he has been contacted about the situation in South Ossetia — by whom he does not say — and that “it is a possibility” he will open an investigation into the situation there.

The Security Council and the Use of Force Post-Georgia War? Michael Glennon and ‘Desuetude’

by Kenneth Anderson

As events move, I fervently hope, to an end to fighting in Georgia, international law discussions of the war will inevitably return to perennial themes – the authority to use force, the role of the Security Council and the Charter, the rationales and precedents offered for and against each side’s use of force, and so on.  So let me introduce one of those perennial, yet unavoidable, discussions – the role of the Security Council in all of this.  But I want to use this post to pose the question in a particular way, drawing on the work of Michael Glennon, and his argument that whatever the Charter might say, the international legal rule on the necessary role of the Security Council in the use of force, if it ever was a rule, is no longer a rule, having fallen into “desuetude.”  What, if anything, does Russia’s intervention imply for the legal role of the Security Council?  I’d like to urge in the comments a specific focus on the legal role of the SC in the wake of the war, in order to distinguish this discussion from the many other issues at hand.

(Update if slightly OT.  I recommend highly Ghost of Freedom: A History of the Caucasus, by Charles King (OUP 2008), reviewed by distinguished University of London scholar Donald Rayfield this week in the Times Literary Supplement.  The book (which I read briefly on a plane ride when it appeared, before all the current stuff, a few months ago) and review are both very timely.)

South Ossetia and “the Will of the People”

by Chris Borgen

With the announcement of a six-point plan for a Georgian cease-fire, attention is shifting to how to construct a durable and equitable peace in the Caucasus. As the parties settle-in for some sort of negotiation, I find it interesting how the ideas about international law and norms are used in the statements of the parties.  Here are a couple of examples from a CNN report from this evening:

Sarkozy said he and Medvedev agreed Georgia is an independent country and Russia has no intention of annexing it. But Medvedev also said “sovereignty is based on the will of the people” and “territorial integrity can be demonstrated by the actual facts on the ground.”

Medvedev said, “I think that these are some very good principles in order to resolve the problem which has arisen from this very dramatic situation, and these principles can be used by Georgia and South Ossetia.”

The seemingly innocuous phrase “sovereignty is based on the will of the people” actually has some quite striking implications.  (I will leave aside the territorial integrity comment…)

First of all, the key question is “which people?”  This has been at the heart of debates over what it means for a “people” to have a right of self-determination. My guess is that Medvedev believes that “people” refers to “South Ossetians” and that Saakashvili would say that it refers to “all the people of Georgia.”

Unfortunately, international law has had a pretty hard time defining what a “people” is for the purposes of self-determination…

A Very Short Finance Primer – Useful in IBT

by Kenneth Anderson

Those of us who teach International Business Transactions often face the pedagogically tough situation of having students whose knowledge of basic business and finance varies enormously, from those who were business undergraduates to those who were art history majors.  In my case, my IBT class typically also has half to two thirds foreign LLM students whose undergraduate studies in law occasionally, but rarely, included exposure to business or economics as such.  So I am always on the lookout for short, readable texts that explain basic business or finance and a (very) little bit of accounting to students in an IBT class.  I am trying out a new short book this term.

How Google (and Estonia) are Defending Georgia

by Peggy McGuinness

Almost a decade ago, Tom Friedman famously scoffed at the idea of a “Microsoft Navy” defending the shipping lanes of the Pacific.  But technology has a way of moving us in unforeseen directions, raising the possibility not just of aggressive cyberwarfare, but of cyber-defense forces.  So, when hackers (allegedly Russian in origin) took down Civil.ge, the official English-language official Georgian news cite, Georgia turned to Google Blogspot to host the site, counting on the (almost always) reliable Google servers and security firewalls to keep out the cyberenemy. It is an interesting twist on both privatization of government functions and asymetric warfare, demonstrating how off-the-shelf products can be particularly helpful for a “cyberlocked” country like Georgia. As the Wired blog reports:

“In a sense,” notes Jim Stogdill, “they must be saying ‘we can’t keep our sites up, but we don’t think [Russian hackers] can take down Blogspot, given Google’s much better infrastructure and ability to defend it.'”

“Another interesting aspect is seeing how certain countries are what I call ‘cyberlocked,'” cybersecurity veteran Richard Bejtlich tells Danger Room. “We know a land-locked country has no access to the sea.  Countries like .ge [Georgia] might rely too heavily on one or a handful of connections, potentially through hostile countries (eg, .ru [Russia]), for their physical connectivity. As a result, an adversary can control their network access to the outside world. A diagram from the Packet Clearing House, shows Georgia’s network dilemma.

Meanwhile, Estonia (once the victim of Russian-based hackers) is now hosting Georgia’s Ministry of Foreign Affairs website. And “in a historic first, Estonia is sending cyberdefense advisors to Georgia,” Network World observes.

Georgia Taking Russia to Court? And Vice Versa?

by Chris Borgen

As the fighting winds down or escalates (depending on whom you believe), the legal battle that Ken discussed yesterday seems to be gearing up and getting more complex, with the International Court of Justice, the International Criminal Court, and the European Court of Human Rights now all being mentioned in news stories…

UPDATE: Be sure to see the new information and links from various commentors in the comments section. Thank you, all!

The Interplay Between Professional and Olympic Sports

by Matt Mitten

Although the Modern Olympic Games have been held since 1896, it was only recently that professional athletes were permitted to participate in the Olympics. Until the late 1980s, in a futile effort to prevent professionalization of the Olympics, only “amateur” athletes were deemed eligible by the International Olympic Committee to compete in the Olympic Games. Since then, the international federation or governing body for each sport has had the authority to determine whether professional athletes may compete in the Olympics or other international sports competition under its auspices. In the 1992 Barcelona Olympics, with NBA players participating for the first time, the U.S. “Dream Team” won the gold medal in men’s basketball.

In the 21st century professional athletes’ participation in the Olympics is commonplace, and many sports are dominated by professionals. All members of the U.S. “Redeem Team” that are competing in the Beijing Olympics are NBA players, and most players on the women’s basketball team are on WNBA rosters. The best athletes competing in sports such as softball, beach volleyball, track and field, and tennis are professionals….

The Investigative Committee in Russia and Alleged Georgian Crimes?

by Kenneth Anderson

Military analyst at AEI Fred Kagan has offered a list of provocative possibilities for where the Georgian-Russian war goes next.  What interests me most here are two of Kagan’s comments on possible Russian investigations into alleged Georgian crimes in South Ossetia, presumably in the course of the Georgian push into South Ossetia, but perhaps not limited to that, apparently, according to Kagan, to be referred to a special organ of the Russian government called the Investigative Committee.  Presumably the Investigative Committee of the Russian Procuracy; a recent paper by American University’s Ethan Burger and NYU’s Mary Holland on SSRN describes it as having been created, however, for “corrupt political purposes.”

Frozen Conflicts Unfreezing

by Kenneth Anderson

Like many OJ readers, I’ve been watching with shock and dismay as the situation unfolds in Georgia – unsure what exactly to say about policy and US policy in particular.  I mean, it’s easy to agree with both the Obama and McCain campaign reactions (I paraphrase) … ‘Russian invasions are bad’ (Obama) and ‘Put the tanks in reverse, Putin’ (McCain) – but that’s not policy, it’s a (very) small step toward actual policy. The situation appears to worsen as the hours pass.  It seems to have gone from the natural breaking point, for Russia, in driving the Georgian army from South Ossetia and Abkhazia, apparently to something – hard to say with certainty at this point, but apparently – wildly, frighteningly more aggressive from the standpoint of international law and policy, toppling the government in Georgia and seeing it replaced with something more to Moscow’s liking.

I was in Georgia, South Ossetia, and Abkhazia in the early 1990s when these conflicts got going in the process of the breakup of the Soviet Union and the independence of Georgia.  I was covering these conflicts for the Human Rights Watch Arms Division, which meant a focus on violations of the laws of war in the conflicts and looking at where the weapons used in the violations came from – not that the last question was all that hard to answer in this case.  So, I was in Georgia in 1993; after the civil war that messed up Tbilisi very badly, as the South Ossetia conflict had quieted down, but Abkhazia was in full swing. The Georgian army today is pretty well professionalized, disciplined, and trained, in large part by the US (although obviously not large enough to take on the Russian military), although that is disputed by Moscow, which claims criminal acts in the Georgian military incursion.  But discipline was not the case in the multiple civil wars that were in large part the genesis of the war on-going now.  

In this post, I’m not going to discuss current policy, but instead talk about what I saw in these conflicts as I watched them unfold back then.  Maybe there’s something to understanding the on the ground circumstances of those conflicts fifteen years ago that is relevant now.  Or maybe not.

Citizenship and the Olympics: The End of Surrogate Warfare

by Peter Spiro

We don’t insist that our major-league ball players come from the cities that they play for. Why should we demand any more from Olympic athletes?

The Beijing Games includes more athletes with tenuous ties to the country whose flag they followed into Friday’s opening ceremonies. There are some who have jumped states in search of better-funded Olympic programs. Others couldn’t make the grade in their home states, and play on eligibility in states where they can.

The IOC and sporting federations have tried to put some brakes on the phenomenon, with rules I describe after the jump. But these efforts are doomed as top athletes join the ranks of highly mobile transnational elites.

Bad thing? Maybe not. Just because your country is represented by a newly minted national doesn’t stop you from rooting for the home team. And the detachment of competitors from national identity marks the decline of the Olympics as combat (think US and USSR), surely a welcome development in international athletics. . . .

The War in Georgia: Issues of Escalation and Justification

by Chris Borgen

This is a follow-up to my previous post concerning the legal issues of the conflict in Georgia with some more about the current military and diplomatic situations (and the resultant legal concerns).

The fighting is moving beyond South Ossetia and into other parts of Georgia, such as the port city of Poti…

International Law, Power Politics, and Russian Intervention in Georgia

by Chris Borgen

Russia’s intervention in Georgia is the latest, and most obvious, example of the peculiar role that Russia plays in the various so-called frozen conflicts in former republics of the USSR.  As international security expert Dov Lynch has put it, Russia can be thought of as a “mediator-cum-supporter-cum-combatant.”  Why has Russia undertaken such a foreign policy in Georgia and what, if anything, does international law have to say about the situation?…

Frozen Conflict Becomes Hot War: Russia Invades Georgia

by Chris Borgen

The frozen conflict over the Georgian separatist region South Ossetia has become a shooting war. Russia’s invasion of Georgia brings to a head many issues that have been floating around, ranging from arguments over NATO’s invasion of Kosovo to the proper understanding of self-determination to the role of Russia in the other so-called “frozen conflicts” in the former Soviet Union…

International Law in China: Teaching at Johns Hopkins in Nanjing

by Peggy McGuinness

I have had the distinct pleasure of spending my spring and summer as a visiting scholar at Johns Hopkins School of Advanced International Studies in Washington, D.C. SAIS offers a program of studies in international law and organizations (something only a handful of other public policy/political science graduate programs in the the U.S. can boast about), with a full range of courses in public international law and international economic regulations. And, at a time when China is the place to be, Johns Hopkins can proudly claim to have been on the ground in China for over two decades. The SAIS Center in Nanjing is currently looking for talented law professors — in particular international and comparative law specialists — to teach in China during the 2009-2010 academic year. Full information about this great opportunity and the application process is here.

The Olympic Arbitration Procedures in a Nutshell

by Maidie Oliveau

The Olympic Games are an intense environment for disputes. They draw unbelievable scrutiny and international attention, with the media on site dedicated to report even the hint of a controversy. The athletes at their center are competing in the most important event of their sporting careers, with the highest possible stakes. In this charged atmosphere, the Court of Arbitration for Sport (CAS) sets up the ad hoc Division (the Division) to resolve disputes that arise in connection with the Games.

The CAS is the body with jurisdiction for final appeal of any decisions which arise on the occasion of the Olympic Games, based on the provisions of the Olympic Charter. The Division does not function as the equivalent of instant replay, but rather, legal issues only are subject to its review. CAS sat its first Division at the 1996 Atlanta Olympic Games.

The Division’s functioning starts less than a year before the Olympic Games when the CAS invites a group of CAS members from throughout the world to serve on the Division, which consists of nine arbitrators for the Winter Games and twelve arbitrators for the Summer Games. I have had the honor to serve on the Division for the last four Olympic Games and will detail some of the inner workings of the Division here….

Guest Blogging the Beijing Olympics

by Roger Alford

Opinio Juris is pleased to announce a panel of international sports law experts as guest bloggers during the Beijing Olympics. Throughout the Olympic Games they will discuss international sports law and provide expert commentary on any Court of Arbitration for Sport (CAS) arbitrations that take place. Matt Mitten, Maidie Oliveau and Antonio Rigozzi are all leading experts in the field of international sports law. It is an area that may not be familiar to most of our readers, but it has been growing in importance ever since the establishment of CAS in the early 1980s. The establishment of arbitration under the CAS ad hoc divisions for the Olympic Games beginning in 1996, UEFA Cup in 2000, and the FIFA World Cup in 2006 has played a major part in making the Court of Arbitration for Sport the most important international sports law institution in the world….

Colonel Morris Davis on the Hamdan Sentence

by Kevin Jon Heller

Salim Hamdan has been sentenced to 66 months in prison, far short of the 30 years-to-life sentence the prosecution requested.  Good news for Hamdan? Probably not, as Colonel Morris Davis — the third chief prosecutor of the military commissions, who resigned because of political interference by the Pentagon — pointed out in the comments to my ex post facto post:

The jury sentenced Hamdan to 66 months.  The judge gave him credit for nearly 61 months of time served, so he has less than 6 months remaining on his sentence.  Hamdan won in the Supreme Court in 2006 and ended up back in his cell.  He won again a little over a year ago when Judge Allred dismissed charges because the word “unlawful” was missing from the CSRT determination, which is required for MCA jurisdiction.  Again, Hamdan won but ended up back in his cell.  This time he lost, but in the end losing may equate to winning.  It remains to be seen whether the administration intends to keep Hamdan past the end of his sentence; doing so begs the question of why we even bother to hold trials.  If you look at Hicks (9 months) and Hamdan (<6 months) it suggests the best way to win at Gitmo is to lose.

In the time since Col. Morris posted his comment, the Bush administration removed any doubt that Hamdan isn’t going anywhere: earlier today a Pentagon spokesman stated that Hamdan will “still be retained as an enemy combatant,” his only hope for release “the annual review board process to determine whether he’s eligible for release or transfer.”

Catching up on Hamdan

by Deborah Pearlstein

The sole virtue of being the last among bloggers to weigh in on yesterday’s Hamdan verdict is having a chance to read what everyone else is saying. The New York Times, the ACLU, Human Rights First and others are pretty scathing in their criticism: don’t be fooled by the patina of fairness evinced by the split verdict, this system is irretrievably broken.

The White House’s rhetoric was comparatively reserved, saying in a statement the Times quotes: “The military commission system is a fair and appropriate legal process for prosecuting detainees alleged to have committed crimes against the United States or our interests. We look forward to other cases moving forward to trial.”

The campaigns largely talked past each other on how trials for detainees like Hamdan should be handled. After proclaiming the verdict as evidence of the system’s success after Congress fixed it by passing the MCA in 2006, McCain’s statement says:

This process demonstrated that military commissions can effectively bring very dangerous terrorists to justice. The fact that the jury did not find Hamdan guilty of all of the charges brought against him demonstrates that the jury weighed the evidence carefully. Unlike Senator Obama who voted against the MCA and favors giving Al Qaeda terrorists direct access to U.S. civilian courts to contest their detention, I recognize that we cannot treat dangerous terrorists captured on the battlefield as we would common criminals.

Of course, that’s not quite Obama’s position. That campaign issued this statement:

I commend the military officers who presided over this trial and served on the hearing panel under difficult and unprecedented circumstances. They and all our Armed Forces continue to serve this country with valor in the fight against terrorism. That the Hamdan trial – the first military commission trial with a guilty verdict since 9/11 – took several years of legal challenges to secure a conviction for material support for terrorism underscores the dangerous flaws in the Administration’s legal framework. It’s time to better protect the American people and our values by bringing swift and sure justice to terrorists through our courts and our Uniform Code of Military Justice. And while it is important to convict anyone who provides material support for terrorism, it is long past time to capture or kill Osama bin Laden and the terrorists who murdered nearly 3000 Americans.

And everyone recognizes there are appeals to come, as well there should be. But while there are obviously some important legal questions to be resolved here (on that I hope later better than never), I confess I’m not sanguine about the likelihood of Hamdan prevailing, as much for reasons of atmospherics as law. In many respects, this trial gave the impression of normalcy. The ‘judge’ evaluated a host of pretrial motions, ruling in Hamdan’s favor on some, in the government’s favor on others. The ‘jury’ deliberated at length and thoughtfully, acquitting Hamdan of the broadest (and least plausible) allegations that would have led him to taking direct blame for terrorist attacks of which he was (at most) distantly aware. There are enormous questions of the legitimacy of some of the factual evidence the commission considered, but at base, my understanding is that the central conduct for which he was convicted – driving Osama bin Laden – is not actually much (or at all) in dispute.

Will a federal court look past these facial features to probe the real legal questions here? Only a delinquent court would fail to do so. But judges are not immune to atmospherics like this. And many have a habit to decide only what needs to be decided in the individual case. It’s the perception challenge that will be among Hamdan’s greatest on appeal. I’d welcome being proven wrong.

Why Hamdan’s Material Support Convictions Violate the Ex Post Facto Clause

by Kevin Jon Heller

As Marty points out in his post, whether convicting Hamdan of “material support for terrorism” (MST) violates the Ex Post Facto Clause will be a major issue in Hamdan’s appeal.  Having now read Judge Allred’s decision carefully, I strongly disagree with his conclusion that it does not.

Judge Allred’s framing of the ex post facto issue (p. 3) is unobjectionable: “the question here is whether “Material Support for Terrorism, criminalized by 10 U.S.C. 950v(b)(25), is sufficiently well established as a violation of the law of war.”  Equally unobjectionable is his assertion (p. 5) that because “Congress has acted under its Constitutional authority to define and punish offenses against the law of nations,” the appropriate standard for whether a war crime is “well established” is the one articulated in United States v. Bin Laden: “the acts in question are recognized by at least some members of the international community as being offenses against the law of nations” (emphasis mine).

The problem is that the evidence Judge Allred adduces in support of his conclusion that material support for terrorism has traditionally been recognized as a war crime does not even satisfy that low standard…

Dave Glazier and Marty Lederman on the Hamdan Verdict

by Kevin Jon Heller

To tide readers over until Deb offers her thoughts, readers interested in some of the strengths and the weaknesses of the Hamdan verdict would do well to read Dave Glazier’s post at National Security Advisors and Marty Lederman’s post at Balkinization.

Mapping Arctic Boundary Disputes

by Chris Borgen

Durham University’s International Boundaries Research Unit has made a map that illustrates the various disputes over the Arctic. The BBC reports:

“Its primary purpose is to inform discussions and debates because, frankly, there has been a lot of rubbish about who can claim (sovereignty) over what,” explained Martin Pratt, director of the university’s International Boundaries Research Unit (IBRU).

“To be honest, most of the other maps that I have seen in the media have been very simple,” he added.

“We have attempted to show all known claims; agreed boundaries and one thing that has not appeared on any other maps, which is the number of areas that could be claimed by Canada, Denmark and the US.”

The map is available here.

Another example of  how geography and cartography can affect international law.

Hat tip: Futurismic

Hamdan Verdict Is In

by Deborah Pearlstein

Well, the Hamdan verdict is in: guilty on five counts of material support to a terrorist organization, but significantly for cases to come – not guilty on the far broader charge of conspiracy. The Times’ story is here. Sentencing to follow this afternoon.

This is hardly the end of the story. There will certainly be appeals. But it is no doubt a significant milestone: the first trial conviction of any of the detainees at Guantanamo Bay. I’ll be back later this afternoon with some more detailed thoughts.

UPDATE: The Hamdan charge sheet is available here. Hamdan was acquitted of both specifications of conspiracy, and on Specifications 1, 3, 4 of the material support charges.

Medellin Executed

by Duncan Hollis

The State of Texas carried out its execution of Jose Ernesto Medellin late Tuesday night.  It did so following the Supreme Court’s denial of a stay, 5-4.  The split is unsurprising, with the majority focused (accurately I suspect) on the fact that a legislative fix was unlikely, and reading DOJ’s silence on the stay request as consistent with a larger pattern of Executive hostility to the ICJ ruling itself.  In terms of dissents, Justice Stevens moved from concurring in the original Medellin decision to dissenting on this one, having wanted to require the reluctant Solicitor General’s Office to provide views (the other dissenters echoed the call for paper from the S.G.).  Separately, I was disappointed to see the majority did little to qualify the confusion its Medellin decision caused over the domestic legal status of U.S. treaties.  The Majority simply noted that the treaty does “not itself have the force and effect of domestic law sufficient to set aside the judgement or ensuing sentence.”  That still leaves me wondering whether the court’s denial of domestic law status to non-self executing treaties means that they are not domestic law in any sense or only that they’re not judicially enforceable domestic law.

So, now what?  The United States has breached its obligation to comply with the ICJ’s Avena decision (not to mention the more recent provisional measures order).  But what exactly will that mean here?  Can Mexico now legally engage in reprisals or retorsion against the United States or (to take up Peter Spiro’s idea of targeted retaliation) against Texas specifically?  Even if it can, will it do so?  To date, Mexico has appeared content to employ the ICJ to amplify its rhetorical opposition to its citizens’ fate.  As yet, it’s taken few concrete actions to actually force a change in the U.S. position (i.e., doubling the time it takes US trucks to cross the border; suspending mutual legal assistance or extradition with the United States, etc.).

The Non-Existent War Crime of “Murder in Violation of the Law of War”

by Kevin Jon Heller

I was hoping that the discussion last week would address not only who could be tried by a military commission, but also for what crimes someone could be tried.  That issue flared up again yesterday in the Hamdan trial, when the presiding military judged refused to instruct the jury that any attempt by an “unlawful enemy combatant” — a status that, as innumerable scholars have pointed out, does not exist under international humanitarian law — to kill a soldier is a war crime…

Medellin: Did Texas Cut a Deal With Mexico?

by Peter Spiro

Okay, so Medellin himself is going down. But as Julian highlights above, Texas has now undertaken to extend some sort of review and reconsideration to others covered by the Avena judgment.

Why the quiet retreat? Here’s some totally unsupported speculation: this is the result of a deal between Texas and Mexico. The GOM is sophisticated enough to understand that, in the end, Medellin wasn’t going to get any relief here: too gruesome a murder. too high profile a case, too much for Texas to back away from, all that complicated by state law quirks that deprive Governor Rick Perry of the final say. On the other side, for all its bluster along the lines of “we didn’t sign no treaty,” Texas understands that the Avena controversy hasn’t been good for the state’s global image.

So this represents the putative compromise. A slender reed of evidence for a deal: the Mexican government is MIA in all the press reports on Medellin’s impending execution. It appears not to be complaining publicly about the clear violation an IL obligation. If there were some sort of agreement (calling Duncan Hollis!), then Mexico wouldn’t go back to the ICJ to complain that Texas’ version of “review and reconsideration” isn’t good enough. Julian asks what Texas has gotten itself into here. But maybe they’ve finally dug themselves out..

Don’t Blame Us, the United Nations Made Us Do It

by Roger Alford

That, in essence, is the surprising argument that the Coast Guard raised in a recent administrative law decision involving regulation of shipping traffic to protect an endangered species. In Defenders of Wildlife v. Gutierrez, the D.C. Circuit was presented with the question of whether Coast Guard action implementing “traffic separation schemes” constituted “final agency action” within the meaning of the Endangered Species Act. North Atlantic Right Whales are critically endangered, and ship strikes are the greatest source of known deaths. Defenders of Wildlife argued that the traffic rules failed to take sufficient account of the need to protect this species. The Coast Guard argued that it was simply following the orders of the International Maritime Organization, an agency of the United Nations, and therefore its conduct was not final agency action subject to judicial review. In short, the Coast Guard was arguing that we’re just traffic cops following the orders of an international agency, so federal courts have no jurisdiction to second guess how we implement the scheme of global governance established by the IMO. The district court agreed, but the D.C. Circuit wasn’t buying it….

Texas Agrees to Sort of Comply with ICJ’s Avena Judgment…But It Will Go Ahead and Execute Medellin Anyway

by Julian Ku

Almost buried amid the last-minute flurry of litigation over Medellin’s pending execution tonight at 7 p.m. EDT, Texas has made a potentially important but ambiguous concession to the ICJ.  It has agreed to support federal habeas petitions in the future for Mexican citizens arguing that a failure of consular notification had caused prejudice to their criminal conviction and death sentence.  Here is the somewhat curious but very interesting statement by Texas, made at the very end of a brief which aggressively resisted any attempt by the U.S. Supreme Court to block Medellin’s execution.

Greg Fox on the U.S./Iraq Status of Forces Agreement: Bringing Iraqi Law and International Law into the Debate

by Chris Borgen

Greg Fox of Wayne State University Law School has posted a new article on SSRN that examines the proposed US/Iraq Status of Forces Agreement (SoFA) from a unique angle. Discussions in U.S. academic journals and blogs have tended to focus on the constitutionality under U.S. law of the Administration pursuing the completion of a long-term security arrangement with Iraq under the auspices of a SoFA that is not submitted to Congress. But Greg’s analysis looks at the SoFA from through the optics of Iraqi law and politics as well as international law and asks what would be the result if the Iraqi Prime Minister “approved” the SoFA but the Iraqi Parliament did not.

The article abstract begins:

The United States and Iraq are about to conclude a Status of Forces Agreement (SOFA) designed to replace UN Security Council resolutions as the legal basis for a continued U.S. troop presence in Iraq. But it appears the Iraqi Prime Minister and the Iraqi Parliament are divided on the desirability of a SOFA, the former favoring the agreement and the latter opposing it. Because the United States has pushed very hard to complete an agreement, one possible scenario is that the Iraqi Parliament will refuse to ratify the SOFA. What would happen if the Iraqi Prime Minister nonetheless signed the agreement, representing that his signature was sufficient to bind the state of Iraq?

Few dispute that such an act would violate the 2005 Iraqi constitution, which requires parliamentary approval of all treaties. This article inquires into the international legal effect of such a national law violation. It concludes that under Article 46 of the Vienna Convention on the Law of Treaties, the SOFA would be voidable at the discretion of future Iraqi governments…

Thus, rather than rehashing the arguments over Executive versus Congressional power under U.S. law, this article frames the issues within Iraqi domestic law and the international law of treaties. A welcome addition to the debate over the Iraqi SoFA.

O Fragile Town of Bethlehem

by Roger Alford

One’s peaceful childish images are shattered by a visit to the fragile town of Bethlehem. “The reality of life in Bethlehem today confounds the traditions of the Christmas story: How could the shepherds, abiding in their fields beyond the wall, visit the Christ child? And what about the Magi? Would they have the proper travel documents to enter Bethlehem? Would their gold, frankincense and myrrh be confiscated at a checkpoint? In the troubled “little town” of Bethlehem, the angels’ song of “Peace on Earth” seems faint indeed.” My host is a highly-educated Palestinian Christian who is actively engaged in interfaith peace negotiations. His charge was twofold: provide a private tour of the holy sites and offer his unadulterated version of the impact the security barrier has had on the people of Bethlehem. I left Bethlehem feeling that the town was broken. Here are some of the highlights….

Whatever Happened to UN Reform?

by Kenneth Anderson

As I’ve mentioned before, I’m completing a short, popular, non-academic, policy book on US-UN relations.  The genesis of the book, however, was the run-up to the UN reform summit, the General Assembly summit (and accompanying final document) of September 2005.  My editors have been beyond patient in waiting for me to finish this not-very-large project.  But I must say that the one silver lining in my dilatoriness is that enough time has passed to see that the festival-like atmosphere surrounding “UN reform” in 2005 has not really amounted to much over the succeeding couple of years.  I was caught up, like many others, in the hoopla in 2005.  Had I done what I intended at that moment, I would have produced a breathless essay on the perils and promise of UN reform.  Which would have seemed, just a year or so later, let alone today, silly and overwrought.  But what has happened, or not, with UN reform dating from 2005?

That Pesky “Context”…

by Kevin Jon Heller

Last week, reflecting on the effusive welcome he received in Germany, Obama said the following to a group of House Democrats:

It has become increasingly clear in my travel, the campaign, that the crowds, the enthusiasm, 200,000 people in Berlin, is not about me at all. It’s about America. I have just become a symbol of the possibility of America returning to our best traditions… this is the moment, as Nancy [Pelosi] noted, that the world is waiting for.

Dana Milbank then reported that quote in The Washington Post as follows:

[Obama] told the House members, “This is the moment . . . that the world is waiting for,” adding: “I have become a symbol of the possibility of America returning to our best traditions.”

The liberal blogosphere was predictably — and justifiably — outraged that Milbank would so blatantly distort the meaning of Obama’s statement, implying that he was “arrogant” or “presumptuous” (the new right-wing meme), instead of self-effacing and humble, concerning his world-wide popularity…

Law and the Long War: Closing Post

by Chris Borgen

On behalf of all of us at Opinio Juris, I want to thank Benjamin Wittes  for joining us this week for a symposium his book Law and the Long War.  We also want to thank  Bobby Chesney,  Geoff CornMarty LedermanGlenn Sulmasy, and Steve Vladeck for their guest-blogging with us. Their contributions were invaluable.

We also want to thank everyone else from the Opinio Juris community who commented or followed the discussion.

We hope you found it interesting and useful.

Later this month, we will have our next book symposium (our first from the Oxford University Press/ Opinio Juris Book Club). Dean Tom Farer of the Graduate School of International Studies of the University of Denver (and other guests) will be joining us to discuss his book Confronting Global Terrorism and American Neo-Conservatism: The Framework of a Liberal Grand Strategy.

It should be a good follow-up to the symposium we have just completed. More details soon.

Court Upholds “Special Mission” Immunity for Chinese Government Official

by Julian Ku

Executive invocations of foreign affairs as the basis for dismissing otherwise valid litigation doesn’t seem to work very well these days.  But there is one area where (thus far) courts have continued to give the U.S. executive essentially complete deference: determinations on immunity for heads of state.  And so it is today in the Federal District Court of D.C.’s decision in Lee Weixum v. Bo Xilia dismissing a lawsuit alleging torture and cruel treatment brought by members of the Falun Gong against a Chinese Government official. The basis of the dismissal was the State Department invocation of its right to grant immunity to a foreign government official and to have such a determination binding on courts.  

The executive’s continued role in “head of state” immunity determinations is pretty uncontroversial. But should it be? After all, it essentially involves absolutely (or nearly absolute) binding determinations that determine the course of otherwise valid domestic litigation at the complete discretion of the U.S. executive.  That’s OK with me, but how does it square with our newly assertive federal courts in the areas of foreign affairs?

Rounding Things Up

by Benjamin Wittes

Well, we never got as far as interrogation or surveillance, but that’s okay. This has been a truly exceptional exchange, a model of everything the debate over law and the war on terror too often is not: civil, serious, rigorous, and respectful of the profound difficulty of the issues at hand. Many thanks to all who participated in it and to the OJ team for hosting it.

One big-picture thought in closing: We’re actually approaching some kind of synthesis here, or at least veering in the general direction of one. On the book’s basic premises, the argument is between those (like me) who believe that that congressional design of the system is essential and that judicial design dangerous but who also believe that extensive judicial involvement in the system is critical to its success and those who believe that judicial involvement is essential and that judicial design is not all that scary, but who also welcome congressional design involvement. That’s not an insurmountable divide, frankly. On detention, the argument is between those (like me) who believe that the existing detention powers of the government should be supplemented by one tailored to the current problems and those who believe that law of war and the criminal law adequately provide for and regulate detentions in the current conflict. That’s also not an insurmountable barrier, since I agree that the laws of war are, in a pinch, serviceable and Marty, Deborah, and Steve do not seem per se against any supplmental authority. Had we gotten as far as interrogation, I suspect we might have said something similar there, and recent congressional evidence of an emerging consensus on surveillance is, well, pretty striking…

Closing Thoughts on the Road Ahead

by Bobby Chesney

I want to close by thanking Ben for writing this terrific book, and our hosts here at OJ for sponsoring this discussion.  Before sigining off, however, I want to offer a few predictions and related observations about the road ahead.

It appears quite possible that in the near future we will substantially reduce our reliance on military detention for terrorism suspects at least insofar as they are captured outside of Iraq and Afghanistan (I predict that no matter who wins the next election, we are not going to abandon or even substantially alter our detention practices in either of those theaters). 

Assuming that this change is not accompanied by adoption of a hybrid detention framework along the lines Ben has proposed, this will result in increased pressure on DOJ to identify grounds for prosecution (I predict that no matter who wins the next election, there will still be substantial interest in preventive incapacitation rather than just surveillance of terrorism suspects (though you should listen to this story by Ari Shapiro on NPR Morning Edition for the view that FBI may be leaning in the latter direction these days as it grows into its intelligence-gathering responsibilities)). 

We may then go a substantial period without any further attacks in the US.  In that case, I predict that we will see a growing trend of criticism attacking the substantive scope of federal criminal law relating to terrorism, particularly as it relates to conspiracy and material support prosecutions, and in general a greater backlash against the prevention-oriented framework of current counterterrorism law. 

Sooner or later, however, we will again suffer a strategically-significant terrorist attack in the US (or a series of smaller attacks, akin to the Beltway Sniper, that collectively have a strategic impact).  At that point, we will experience tremendous pressure either to revert to our post-9/11 practices or perhaps even undertake more draconian measures.  When that moment comes, I hope that we heed Steve’s warning not lose sight of our past problems and abuses.  If we can do that, though, I believe the result will be to draw us toward just the sort of proposals that Ben has set forth in Law and the Long War.  I am predicting, in short, that the conversation we’ve had this week will be relevant for a very long time to come.

A Few Final Thoughts and the Problem of Un-Ringing Bells…

by Steve Vladeck

I must confess that I’ve been a bit cowed into silence by the heavyweight detention discussion between Deborah, Marty, and Ben. At the risk of wading in, though, I think Ben’s point in his most recent post — that detention should be based upon “dangerousness in the context of a showing of some significant relationship with groups against which Congress has authorized the use of force” seems reasonable on the surface, but assumes away the problem that cases like Parhat illustrate, i.e., the demonstration of “some significant relationship.” Is it true that anyone with such a relationship is presumptively dangerous, and thereby detainable under Ben’s framework? Or is there a second showing — first that there is a relationship, and second that within the contours of that relationship, the particular detainee is particularly dangerous? If Ben means the second, then I’m far less troubled (although not completely satisfied, for some of the reasons articulated by Deborah and Marty). But if Ben means the first, then we’re right back where we started, no?

We’re supposed to start winding down this conversation, so rather than dwell on this point, I want to briefly segue to a larger question that has plagued me from the beginning of this debate: are we to judge proposals like those in Ben’s book in a vacuum? Or, in contrast, should we see these proposals through the lens of the many egregious missteps the Bush Administration has taken in its conduct of the fight against terrorism over the past seven years?

Al-Marwallah’s Ears Must Be Burning

by Benjamin Wittes

A few final thoughts on detention and Al-Marwallah before we move on to interrogation–a subject on which I’m certain my arguments will provoke no disagreement. 😉

First, a concession: Marty is quite right that there is an ambiguity in the book concerning what the Al-Marwallah example stands for. I had not noticed this until his last post, and it warrants clarification. I believe that someone like Al-Marwallah is detainable on the basis of the laws of war (as, with a little more hand-wringing than I would expend on the man, does Marty). In other words, we agree that he is very likely subject to lawful extra-criminal detention of some sort for some very long period of time. I do, however, also thing that if we are totally honest about why we want to detain people like Al-Marwallah, we have to acknowledge that our reasons are not quite the same as they are in conventional law of war detentions. In these more conventional detentions, we detain because the subject is an obvious (by dint of his uniform) arm of a state with whom we have a political difference unbridgeable except by the use of force. We consider the detainee an honorable figure to whom no opprobrium attaches and with whom we have no individual battle. And we offer him no–or almost no–process, because we assume there to be no doubt as to his identity, affiliation, or status. Moreover, we don’t sweat much over his liberty because we know he’ll be released at the termination of hostilities…