I think it’s over. As is true with notational wars, it takes another, more serious threat to take care of the displacement. The end isn’t in the way of armistice or surrender. The wars on drugs and crime continue to be fought under more prosaic headings, but they no longer have a hold on the national imagination. And in the face of the financial crisis, that’s where we’re heading with the war on terror. . .

Thou shalt not incite public curiosity. It is perhaps the most curious of international obligations. But there it is, expressly required in the Geneva Conventions: prisoners of war “shall be protected … against insults and public curiosity.” How does one abide by this commitment? That, in essence, was the question in the recent Second Circuit decision of ACLU v. Department of Defense.

The ACLU filed a FOIA request for release of 21 photographs depicting abusive treatment of detainees by United States soldiers in Iraq and Afghanistan. While much of the decision focuses on the privacy exception to FOIA, the final section of the opinion addresses whether the FOIA privacy provisions should be read in light of the Geneva Conventions. The United States relied on Charming Betsy to argue that FOIA should be read consistent with the United States’ obligation to comply with the public curiosity requirements of the Geneva Conventions. The United States argued that even if the photographs were redacted to eliminate identifiable information, they nonetheless are so humiliating that the dissemination of such photos opens the detainees to public curiosity.

The Court disagreed. It noted that the United States position was not always thus, and that during World War II the United States championed the use and dissemination of German and Japanese concentration camp prisoners to hold perpetrators accountable. The Court also concluded that release of the photos will further the purposes of the Geneva Conventions by deterring future abuse of prisoners. “To the extent the public may be ‘curious’ about the Army photos, it is not in a way that the text of the Convention prohibits… Heightened public awareness of events depicted in the Army photos … would serve to vindicate the purposes of the Geneva Conventions without endangering the lives or honor of detainees whose identities are protected.”

I think the decision raises troubling questions. I am not suggesting that the Court reached the wrong conclusion. I just think the manner in which it reached the result is, well, curious….

Who would have thought that the US would emerge as the most committed supporter of the ICC in Darfur? From the “Hague Invasion Act” to protecting the Court from the spinelessness of its erstwhile supporters, the UK and France:

“If asked—if forced to vote today—the United States, even if it was 191 countries against one, would veto an Article 16 [resolution],” Ambassador Richard Williamson, the U.S. special envoy to Sudan said at a hearing of the US Commission on International Religious Freedom.

This is the first time a US official makes a formal position on issue of the suspension despite the heavy debate within the UN and regional organizations.

But the diplomat stopped short of saying that the U.S. will never support the suspension of the ICC’s Darfur cases, instead laying out a list of conditions that should be met before such a move would be tolerable, including “progress on the ground to provide alleviation of humanitarian suffering” and “sustainable security on the ground in Darfur and South Sudan.”

“We have not seen a response by the officials in Sudan to approach the sort of meaningful steps in those areas that are noteworthy,” said Williamson.

This is the correct position.  The Security Council can defer the prosecution at any time, so why not force Bashir to show genuine willingness to negotiate in good faith before giving him a year of breathing room?

Here’s a sentence I don’t get to write very often — but one I’m delighted to write on this occasion: Kudos to the US!

Along with my co-author, Joshua Newcomer, I’ve posted a new article on SSRN — “Political” Commitments and the Constitution.  It’s forthcoming in the Virginia Journal of International Law, so I expect readers will get a chance to comment on it here at Opinio Juris once it’s in print as part of our regular VJIL symposia.  But, we’d also welcome comments now, while we’re still early in the editing process.  Here’s the abstract:

This article explores how the Constitution regulates political commitments in light of recent controversies over the formation of a new U.S. security relationship with Iraq. The United States has long used political - or, non-legally binding - commitments as alternatives to its treaties, but the Executive’s authority to do so is un-theorized. And, although international law and international relations literature have studied political commitments extensively, conventional wisdom simply assumes that because they are not international law, they are irrelevant to domestic law as well.

This paper challenges such views. We contend that the Constitution regulates the President’s ability to form political commitments and provide a comprehensive constitutional analysis to support this position. We offer a functional explanation for why the Constitution should control political commitments, given how their international and domestic functions parallel those of U.S. treaties. In doing so, we offer the first typology of political commitments, differentiating them according to variables of form, substance, organization and autonomy. Assuming the federal government has a political commitment power, we explain why it does not fit neatly under either the treaty-making power or the foreign affairs power more generally. Instead, we look to constitutional text, original meaning, custom, structure, and prudence to construct a discrete Executive power to make political commitments, subject to legislative checks. Ultimately, we provide a framework for evaluating political commitments that can legitimize the Executive’s use of political commitments while guiding decisions on when Congress must require information about-or even approval of-them. We conclude by applying our framework to the Iraqi security agreements.

Significant implications flow from recognizing a political commitment power. Recognition legitimizes the vast majority of Executive political commitments that have gone unsubstantiated to date. It prescribes to Congress grounds for acquiring information about U.S. political commitments, and, more infrequently, approving them. Finally, a political commitment power reconciles existing practice with the Constitution’s basic rule of law principle, establishing that the Constitution governs all U.S. international agreements, not just some of them.

With all the attention to the bailout legislation last week, few noticed how much the Senate did on the treaty front.  But, as I suggested in my recent post, the Senate had an opportuntity to set a record in terms of its treaty actions and it easily did so, passing resolutions of advice and consent for some 78 treaties (the whole list can be found here).   The resolutions are printed in the Congressional Record, starting here, here, and here.  For those looking for further details, Jacob Cogan over at the International Law Reporter has done a nice job compiling the treaty transmittal packages and Senate Foreign Relations Committee (SFRC) reports as well (see here, here, and here). 

With the expected exceptions of UNCLOS and its Part XI Amendment along with the Protocol to the London Dumping Convention, the Senate essentially cleared the floor of all the treaties reported favorably to it by the SFRC this Congress.  There was debate and little attendant controversy over any of these treaties.  It looks like all the resolutions of advice and consent came via division votes, which has become the norm of late; I don’t think the Senate has actually had a floor debate or anything resembling a real vote on a treaty since the failed effort involving U.S. ratification of the Comprehensive Test Ban Treaty back in 1999 (readers should feel to correct me if I’m wrong here). 

Still, whether the Senate closely considered them or not, the resolutions themselves are quite novel in two respects.  First, although I’ve not looked at every resolution, those I have reviewed follow the SFRC-recommendations, including declarations of self- or non-self-execution.  As I suggested last week, the idea that a resolution will be made for each treaty marks a new practice.  And to the extent these declarations are part of the instruments of ratification, I wonder how other nations will react?  Although one might argue that they should not care so long as the United States complies with the treaty in question, if foreign reaction to U.S. human rights treaty RUDs (i.e., reservations, understandings and declarations) is any guide, some states may well object (e.g., making the argument that the declarations actually constitute inadmissible reservations or are otherwise unacceptable). 

Second, from a U.S. law stand-point there’s the question of the Senate’s ability to make a declaration of self-execution, which I don’t think it has ever done before, at least not in the resolution of advice and consent itself (past SFRC reports have, of course, expressed opinions on whether the SFRC understood the treaty to be self-executing in one or more senses of that term, or otherwise dependent on ex-ante or ex-post legislation in some way).  At a workshop at Duke this past weekend, a number of academics I highly respect raised questions about whether the Senate specifically (or the U.S. treaty-makers more generally) could issue declarations of self-execution regardless of the treaty’s terms, in the same way as many assume that they can when it comes to non-self-execution.  I’m not sure if this is a real, or merely a theoretical problem; indeed, I’d expect U.S. courts will welcome anything resembling clear statements on a treaties’ justiciability from the treaty-makers rather than having to find their own way.  But, I would be interested in reader reaction to the Senate declarations.  Are they problematic?  Or, is the Senate appropriately exercising its own constitutional powers here?

[Update:  Blog in haste, regret at leisure.  So, it turns out the SFRC made it clear that the declarations of self- and non-self-execution were not to be included in instruments of ratification; the new practice, rather, is the inclusion of those declarations in the Senate's Resolution of Advice and Consent, whereas previously the topic was usually left to the SFRC reports themselves (and even then addressed only occasionally).  I expect that this will make it less likely (and harder) for other nation states to oppose these declarations.  Finally, at least one reader has suggested that the Senate has done some declarations of self-execution in the past, but I can't think of an example where it has done so.  Readers -- do you have any examples to offer where the Senate issued a declaration of self-execution?]

Some of my students have asked if there is some book that provides an entry level discussion of monetary issues and currency.  One quite good recent book is Craig Karmin, Biography of the Dollar.  Karmin is a Wall Street Journal reporter, and his book offers very good financial journalism (February 2008).  It covers the history of the dollar and its relation to gold and other currencies.  The discussion of paper money and its issuance, and the evolution of central banking, is excellent.  Among the most interesting chapters are the chapters on dollarization of several country economies - Ecuador is the main example - and then the role of the dollar as the reserve currency (for the moment, anyway).  The chapter on South Korea offers a good illustration of how US deficits, and the accumulation of dollar denominated US treasury securities in vast quantities in Asian central banks, can have enormous repercussions for the value of the dollar and the US economy.  It is a journalistic account, not a textbook, so it is not systematic in the way that a textbook would be, but it is highly readable, informative, and requires no special background.

The following post was written by Chimène Keitner, an Associate Professor at Hastings.  Our thanks to her for contributing it.

The Ninth Circuit issued a panel opinion this week in Abagninin v. AMVAC Chemical Corp., a corporate Alien Tort Statute (ATS) case that had largely been flying under the radar screen of many of us who follow these cases, myself included. In part, this is because the plaintiffs had done their best to file and remain in California state court, where a jury last year awarded Nicaraguan banana workers $2.5 million in punitive damages in a similar case. In this case, however, the defendants successfully removed the case to federal court, bringing the ATS into play. In a 16-page opinion, Judge McNamee (sitting by designation) affirmed the district court’s dismissal of the plaintiffs’ claims against manufacturers, distributors, and users of the pesticide DBCP, which is known to cause male sterility and low sperm count, for genocide and crimes against humanity on Ivory Coast plantations.

Although I have not yet been able to access the operative complaint, it seems that the plaintiffs alleged that the companies were directly liable for genocide and crimes against humanity. This distinguishes Abagninin from the majority of ATS cases against corporations, which more often seek to hold corporations liable as accomplices to international law violations, rather than direct perpetrators…

“I, for one, cannot think of anything more presidential than suspending your presidential campaign! Being president demands suspending all kinds of things: habeas corpus, Gitmo prisoners…”
—Stephen Colbert

This just gets more and more interesting.  Lt. Col. Vandeveld has said he will testify for the defense — but only if he is given immunity from prosecution:

Defense attorneys asked the judge to give Vandeveld immunity. “The suggestion he may have something criminal to hide is intriguing and suggests there is something very, very important this commission needs to get to the bottom of,” said Air Force Maj. David Frakt, the Pentagon-appointed attorney for Mohammed Jawad.

Jawad, 23, faces charges including attempted murder for allegedly throwing a grenade that injured two American soldiers and their interpreter in Afghanistan in 2002. A conviction at his trial, which is scheduled to begin in December, could keep him in prison for life.

In his written declaration, Vandeveld said he was available and willing to testify for the defense.  Prosecutors prevented him from traveling to the U.S. Navy base in Cuba, but the judge agreed to have him testify by video link.  It was not clear why he wanted immunity and an attorney.

Frakt told the judge Thursday that Pentagon officials are trying to discredit Vandeveld and block his testimony.

The offer who oversaw the tribunals until last week, Air Force Brig. Gen. Thomas Hartmann, allegedly asked Vandeveld to get a psychiatric exam.  But frakt said the former prosecutor was evaluated at Walter Reed Army Medical Center last week and was cleared to stay on active duty.

“He is very intimately involved in the effort to prevent Col. Vandeveld from being able to testify,” Frakt told the judge. Hartmann was disqualified from participating in the case last month for aligning himself too closely with prosecutors.

I’m with Maj. Frakt — immunity from what? Does Lt. Col. Vandeveld believe that, if he comes clean about the prosecution’s attempts to rig Jawad’s trial, he might someday be prosecuted for “wilfully depriving a protected person of the rights of fair and regular trial” prescribed in the Geneva Conventions, a grave breach that is made criminal by the US War Crimes Act?  If so, we definitely need to hear what he has to say!

Here’s the latest: the Western Climate Initiative among seven US governors and four Canadian provincial premiers, takes shape to create a market-based cap-and-trade emissions reduction program (report here from the NY Times). The program emerges from the terms of this February 2007 agreement. 

Leaving aside the question of whether this qualifies as a compact (sure looks like one), are this and similar undertakings consistent with constitutional constraints on state foreign-policymaking?  In “Like a Nation State“, Douglas Kysar and Bernadette Meyler suggest they may not be.  

The piece plays to the “bargaining chip” rationale for keeping the states out of foreign relations, as in, if the states can go it alone, they may weaken the nation’s negotiating position on the international plane.  The problem with state climate change initiatives: if the states sign on to emissions reductions on their own, the U.S. will be in a weaker position to extract emissions reductions from other countries.  That’s a plausible argument against state activity.  On the other hand, when California and these other economies sign on to reductions, they advance the overall objective of reducing global emissions.  As Arnold Schwarzenegger loves to point out, in terms of economic size California would rank fifth among nations.  That presumably compensates for the lost chips, especially where we’re looking at an Administration unwilling to use them in the first place.  The bargaining chip rationale doesn’t play much of a role in the big foreign affairs preemption cases (Zschernig, Crosby, and Garamendi, among others).

Those decisions rest on the danger of a more direct kind of interference in national foreign-policymaking.  Going back to Chy Lung, the concern has been that state activity will upset relations with other states and result in retaliation against the nation as a whole.  Even if (as Kysar and Meyler explain) state climate change policy involves scrutiny of other countries’ climate policies (mostly on the question of hooking up emission markets), they’d be unlikely to result in retaliation, or even complication.  If California disses the EU about the structure of its carbon markets, the EU is hardly likely to complain to Washington about it, much less respond with concrete measures against the US as a whole. 

The piece includes a lucid description of some very complex policies.  The doctrinal analysis notwithstanding, it concludes that California’s program will pass muster in the way of civil disobedience.  I’m not sure I buy the analogy, because I don’t think there’s anything clearly unlawful about the activity.  But in the absence of any sort of clear federal position on the state activity, it’s hard to see a court deploying Zschernig to strike it down.

I wish I could say I was surprised:

Long before Mr. Hussein was hanged on Dec. 30, 2006, with supporters of Iraq’s new Shiite-led government taunting him as the noose was tightened around his neck, a pattern of intervention by powerful Iraqi officials had been established. The court’s first chief judge was dismissed under government pressure for giving Mr. Hussein too much leeway for his courtroom outbursts, and the associate judge named to succeed him was removed under government threats before he could take over.

But until now, only officials involved with the court’s inner workings knew that a third judge, Munthur Hadi, was forced from the judges’ panel less than a week before the court delivered its verdicts, on Nov. 5, 2006. He was replaced by another judge, Ali al-Kahaji, who had heard none of the evidence in the nine-month trial. The replacement was favored, the Western lawyers say, because of his links with Mr. Maliki’s Dawa religious party, which had lost thousands of its members to Mr. Hussein’s repression, and because of Mr. Kahaji’s readiness to approve Mr. Hussein’s hanging…

Noah Feldman has this long think piece in the New York Times Magazine.  Feldman deftly describes for an intelligent lay audience a fork-in-the-road moment for the Court and its posture towards international law and institutions.  We have the sovereigntists on the one hand and the internationalists on the other.  Each had a major win last Term, the internationalists with Boumediene and the sovereigntists with Medellin (those of us in the field might trip over the description of the latter as “largely overlooked,” but let’s face it, the decision was probably not discussed over many dinner tables). 

The takeaway: judges should be sensitive to international context beyond the doctrine.  The merits aside, he concludes, ‘”what justifies [Boumediene] is the practical necessity and importance of reassuring the citizens of the United States and the world at large that the United States had not given up the role it assumed after World War II as the chief proponent of the rule of law worldwide.”  For its part, Medellin was tarnished by a “problem of timing. . . The message sent . . . in the world and at home, [was] precisely the wrong one for this historical juncture, when the United States needs — at least for the moment — to convince the world that the project of international legality is one in which we believe.”

I’m on board for that.  Although even in a best-case scenario we’re probably in a go-slow mode for further progress towards an internationalist Constitution, the Court appears increasingly sensitized to its place in the world, and appropriately so.  Of course its direction on this hangs in the balance (Feldman’s ostensible purpose with the piece is to dramatize in yet another way the next round of judicial appointments).  But even if the Court retreats to the sidelines more aggressively, as would likely happen in a McCain administration, there will be other actors to pick up the ball.  The Court is a more important player on foreign policy than at any time in recent history, but still not so important a player as to stop the juggernaut of IL.

Shocking:

An Army prosecutor has resigned from the Guantánamo war court in a crisis of conscience over plans to try a young Afghan accused of throwing a grenade rather than settle the case out of court, according to an affidavit filed with the court Wednesday.

Army Lt. Col. Darrel Vandeveld, a reservist from the Pittsburgh area, becomes the fourth known prosecutor to quit the Pentagon’s controversial military commissions, which the Bush administration set up after the Sept. 11, 2001, attacks.

[snip]

Now Vandeveld has written a four-page sworn declaration in which he says there is a risk of the case going to trial without the defense obtaining all “potentially exculpatory evidence.”

”In my view,” he wrote, “evidence we have an obligation as prosecutors and officers of the court has not been made available to the defense”…

The trial of Charles Taylor’s son, “Chuckie,” for acts of torture committed in Liberia began today in Miami:

Chuckie Taylor is the son of former Liberian President Charles Taylor, who is on trial for war crimes by the UN-backed Special Court for Sierra Leone. The son is accused of responsibility for torture committed between 1997 and 2003 while he headed Liberia’s notorious Anti-Terrorist Unit (ATU) during his father’s presidency.

The Taylor case is the first brought under a 14-year-old federal law that allows the United States to bring charges against a person accused of torture abroad if the accused is in the United States or is an American citizen (18 USC § 2340A).

“As the first prosecution for torture committed abroad, Chuckie Taylor’s trial is a vital, long-awaited step by the US government to ensure human rights abusers do not escape justice,” said Elise Keppler, senior counsel with Human Rights Watch’s International Justice Program. “The Department of Justice’s efforts should be applauded and replicated in more cases like this one.”

Taylor, Jr. is charged with criminal responsibility for acts of torture, which include burning victims, shocking them with an electrical device, imprisoning them in holes in the ground, and ordering that that their genitals be mutilated. He is also accused of ordering executions.

Jury selection in the trial, which will be held before Judge Cecilia M. Altonaga in the US District Court for the Southern District of Florida, is expected to last three days and will be followed by opening statements.

This is a major development, part of a remarkable trend of Congress giving US courts universal jurisdiction over serious international crimes.  Such jurisdiction now exists for genocide, as well, and should be extended to the use of child soldiers and human trafficking soon.

Who knows — at this rate, the US might even eventually comply with the Geneva Conventions and adopt universal jurisdiction for grave breaches!

Apparently, France will no longer even insist that the Sudan try Haroun and Kushayb.  It only wants Haroun to be removed from his government position:

France had previously stressed that Sudan must turn over Ahmed Haroun, state minister for humanitarian affairs, and militia commander Ali Mohamed Ali Abdel-Rahman, also know as Ali Kushayb who are wanted by the ICC in connection with Darfur war crimes.

Then later the French Ambassador to the UN Jean-Maurice Ripert told reporters that Sudan may try Haroun and Kushayb internally with the consent of the ICC.

But Sarkozy speaking to reporters today at the UN headquarters in New York further watered down France’s demands with regards to the two suspects.

“We want those accused of genocide not to stay as ministers in a government in Sudan” Sarkozy said referring to Haroun.

That’s pathetic — but predictable, because there is no way that the ICC would permit the Sudan to try Haroun and Kushayb itself, given the failings of the Sudanese criminal justice system.

What’s next?  Deferring Bashir’s prosecution as long as he promises to bring valentines to everyone on the Security Council, not just Russia and China?

The Seventh Circuit in Osagiede v. United States earlier this month ruled that an attorney’s failure to provide information as to the client’s Vienna Convention rights may constitute ineffective assistance of counsel.

Effective performance by counsel representing a foreign national in a criminal proceeding is reasonable performance “under prevailing professional norms.” … Osagiede’s claim is a common one in Sixth Amendment cases. In essence, Osagiede argues that his lawyer should have been aware of his legal rights under Article 36 [of the VCCR] and should have acted to protect them: “All lawyers that represent criminal defendants are expected to know the laws applicable to their client’s defense.” The Government does not contest the fact that it failed to notify Osagiede of his right to contact his consulate. This failure to notify violated Article 36 of the Vienna Convention, as well as federal regulations promulgated to ensure compliance with Article 36. The law was on the books; the violation was clear. Simple computer research would have turned it up.

The Government argued however, that ineffective assistance was unavailing because the Vienna Convention does not create a private right of action. The Seventh Circuit disagreed. “[A] reasonable Illinois lawyer would have known that this Court has never held that Article 36 did not create individual rights; instead, we have always assumed that it did. Thus, it was clearly established across the country that either the Vienna Convention created individual rights or courts would proceed as if it did.”

Significantly, the Court relied upon the ICJ’s determinations in LaGrand and Avena to reach this conclusion. “[T]he International Court of Criminal Justice [sic] issued two landmark decisions holding that Article 36 did, in fact, provide the detained foreign national with individual rights. The dramatic legal and political developments that led up to the LaGrand and Avena cases drew widespread attention at local, national and international levels.”

It looks like this is where we are headed with the VCCR. Criminal convictions may not be thrown out using straightforward arguments of VCCR violations, but the ineffective assistance of counsel argument may just have legs.

Last week, I defended deferring the ICC’s investigation of Bashir for a year in exchange for, inter alia, the Sudanese government turning Harun and Kushayb over to the ICC for prosecution.  That would have been a strong demand on the part of France and the UK — one that, I argued, Bashir would be unlikely to accept.

Lest they be accused of actually showing some backbone, Britain and France now appear willing to let the Sudan prosecute Harun and Kushayb itself.

France:

The French foreign ministry called Friday for Sudan to respect the decisions of the ICC concerning the pair, Sudanese humanitarian affairs minister Ahmed Haroun and militia chief Ali Kosheib.

But five non-governmental organisations including Amnesty International wrote to French President Nicolas Sarkozy on Thursday saying they feared Paris was planning a compromise that would allow Khartoum to try them in Sudan.

The NGOs warned the French president, who made tackling the Darfur conflict an election pledge, that any compromise on the war crimes probe would “deal a major blow to the credibility and dissuasive power of the international criminal justice system.”

The UK:

The deal, which will be discussed this week at the United Nations General Assembly, would involve Sudan promising to make significant progress with peace talks, supporting the deployment of UN peacekeepers in Darfur, and holding war crimes trials of its own for lesser figures. “We’re not getting involved in negotiations”, said one British official. “There has to be a very substantial change in Sudan’s cooperation.”

If these reports are accurate, the French and British position can charitably be described as a joke…

Yesterday, on Monday, September 22, the 63rd UN General Assembly got underway.  As an annual confab, it features a parade of speeches by heads of state and foreign ministers and the Secretary General.  This year had a couple of special items.  One was President Bush’s farewell address at the UN.  A second-US-centric event was the arrival of Governor Sarah Palin to meet with various world leaders in NY.  A third was the address by Iranian president Ahmadinejad to the General Assembly in which he announced that the American empire was near collapse.  French President Sarkozy called for those responsible for the financial crisis to be held accountable and “punished” and further called for a global credit crisis summit of world leaders.  Secretary General Ban Ki Moon expressed doubts about the “magic” of markets.

I hope readers will forgive me for arrogating the “Featured Post” section of the blog, but I wanted to report some professional news: I have accepted a Senior Lecturer position at the University of Melbourne School of Law.  I begin next semester — March, 2009.

I will greatly miss the University of Auckland.  It’s a wonderful law school, with excellent students and an accomplished faculty that is so collegial you would think you’re in a movie entitled “The Stepford Professors.”  The opportunity to join one of the world’s great law schools was simply too attractive to pass up.  Melbourne is particularly strong in public international law — Jenny Beard, Helen Durham, Tim McCormack, Anne Orford, Dianne Otto, Gerry Simpson, James Hathaway (the new Dean), and many more.  And it is in the process of becoming the first Australian law school to shift completely to graduate legal education, admitting only JD students as of this year.  It should be a wonderful place to write and teach.

To my current colleagues at Auckland: thank you for restoring my faith in legal academia.  To my future colleagues at Melbourne: I can’t wait to join you!

I have posted a new essay on SSRN, “Situational Gravity Under the Rome Statute,” which is forthcoming in Future Directions in International Criminal Justice, a book that Carsten Stahn and Larissa van den Herik are editing for TMC Asser/Cambridge University Press.  Here is the abstract:

The ICC is often derided as the “African Criminal Court.” That criticism cannot easily be dismissed: all of the Office of the Prosecutor’s (OTP) current investigations focus on African states – Uganda, the Central African Republic, the Democratic Republic of Congo, and the Sudan – and it is analyzing the situations in three other African states, Cote D’Ivoire, Kenya, and Chad, to determine whether formal investigation is warranted.  At the same time, the OTP has declined to investigate the situations in a number of non-African states, such as Venezuela and Iraq – the latter despite its conclusion that there was a “reasonable basis to believe” that UK nationals had willfully killed a number of civilians and subjected a number of others to inhumane treatment.

The OTP has not denied – nor could it – that it has focused exclusively on situations in Africa.  Instead, it has argued that its investigative decisions have been driven solely by an objective assessment of the gravity of the various situations, as required by Article 53 of the Rome Statute.  In its view, the African situations are simply graver than the non-African situations, because they involve far greater numbers of victims.

This essay critiques the OTP’s quantitative conception of situational gravity. More specifically, it argues that the OTP should de-emphasize the number of victims in a situation in favor of three qualitative factors when it determines the gravity of a situation: (1) whether the situation involves crimes that were committed systematically, as the result of a plan or policy; (2) whether the situation involves crimes that offend the fundamental values of the international community – those that cause “social alarm,” in the words of the Pre-Trial Chamber in Lubanga; and (3) whether the situation involves crimes that were committed by States, instead of by rebel groups.

Many legal bloggers have speculated on the relationship between blogging and scholarship.  I would simply point out that this essay began life as a blog post.  When Carsten asked me if I wanted to contribute something to the volume, I immediately thought of the situational gravity topic — the post had led to an interesting and impassioned debate about the merits of the Prosecutor’s count-the-bodies approach to gravity.  In a very real sense, then, this essay would not have been written without Opinio Juris.

As always, comments and criticisms are most welcome!

(Update, Saturday, September 27, 2008.  As a reminder that credit markets and banks are globally interlinked, note that even as WaMu fell in the United States and was taken over by the FDIC, in Europe the Dutch-Belgium Fortis Group (banking and insurance) was under major pressure and might well fall by early next week.  Major pressure means that market investors have serious concerns about its solvency, which has in turn created a crisis of liquidity.  This should sound familiar, of course.  The ECB has said that it stands ready to release any necessary liquidity but, as with US institutions, liquidity is not the underlying issue, but is instead triggered by both questions about solvency -because no one knows the true value of the complex and now illiquid derivative securities - and actual solvency - because there is a broad understanding that many of those complex and now illiquid derivative securities are backed by mortgages which are not being and will not be repaid.  Fortis is moving to do precisely what US financial institutions are finally moving to do (per the article cited below), which is increase liquid shareholder capital and de-leverage (i.e., reduce the ratio of borrowed funds to shareholder capital) through sales of various assets.  Whether this will reassure investors or whether it will be taken over by regulators remains to be seen.  Institutions worldwide hold mortgage derivative securities, some from the US and some from other places; institutions, particularly government central banks, hold vast quantities of US dollar Treasury debt; these markets in credit are truly worldwide.)

One of the questions that arises watching the Wall Street financial disaster unfold in the newspaper headlines each day is the extent to which it extends beyond Wall Street, extends beyond the US.  Of course, as the credit crunch moves from financial markets in the US to Main Street, without a doubt much of the world will be swept up in the effects - if for no other reason than consumer demand drying up in the US.  But a question is the extent to which financial markets worldwide are already caught up in the credit crisis.  News reports over the weekend indicate that Treasury Secretary Paulson was attempting, while pressing his $700 billion plan on Congress, to persuade other central banks worldwide to follow suit; no word, so far as I know now, on what was said in reply.  But it should be borne in mind that the credit markets in New York and, in particular, London are tightly linked, and much of the derivative business involved in repackaging US mortgages took place in and via London.  The LBH bankruptcy obviously has significant repercussions for the City of London.  And, for those following events beyond Wall Street, the UK financial system is squarely in the middle of crisis.  That is all with respect to the financial markets themselves, without looking beyond to the effects on the real economy. This very short article by Desmond Lachman of AEI is helpful in pointing out where things seem currently to be headed with respect to Europe:

At the beginning of the year, many observers believed that this time around the global economic cycle would be different. As evidence mounted that the U.S. economy was experiencing its worst housing-market and credit-market busts since World War II, many cherished hope that the fundamental strength of the European and Asian economies would prevent them from catching the proverbial cold when America sneezed.

Recent economic data suggest that such “decoupling” was never more than a pipe dream. It now appears that the French, German, Italian, UK, and Japanese economies all contracted in the second quarter of 2008. Meanwhile, the massive housing-market bubbles in Ireland, Spain, and the United Kingdom have all collapsed. These housing busts have taken a harsh toll on economic growth; so have high oil prices and the global credit crunch. Europe is also suffering from the combined effects of a relatively strong euro and the European Central Bank’s tight monetary policy.

Since August 2007, European banks have recognized $230 billion in loan losses—nearly as much as the $250 billion in loan losses that U.S. banks have recognized over the same period. In recent months, European credit creation has ground to a halt. More troubling is the likelihood that the losses suffered by European banks will be exacerbated by an economic slowdown and by the ongoing housing busts in Ireland, Spain, and the United Kingdom.

American banks have not responded to their loan losses by raising an equivalent amount of new capital, and neither have their counterparts in Europe. This suggests that European banks, like those in the United States, can be expected to tighten credit conditions further as they try to repair their damaged balance sheets.

While the impact of high commodity prices on the European economy has been softened by the relative strengthening of the euro, one should not minimize the severity of the oil and food shock, which has contributed to a much tighter monetary policy stance in Europe than in the United States. The European Central Bank, remember, has a single mandate: securing low domestic price inflation.

Two interesting trials involving very old defendants began last week. The first, in Poland, involves General Wojciech Jaruzelski, who orchestrated the Polish government’s brutal repression of Solidarity in 1981:

The 85-year-old man, who was once the very symbol of communist repression, faces a possible ten-year jail sentence for “directing a criminal organisation” – a reference to the Military Council that imposed and ran the martial law crackdown of the early 1980s. It is a strange legal device – “the generals are being treated like gangsters”, said the daily newspaper Gazeta Wyborcza– that seemed to be the only way of nailing down the general and seven other top Communist officials, all in their eighties.

For Poland it is a final reckoning with one of the most divisive and emotionally charged events of the Cold War. At its heart is a question that can be only partly answered in a courtroom: was Jaruzelski a Polish patriot or a Soviet puppet?

The second trial, which may well be the last prosecution of its kind, involves a 90-year-old former Nazi officer who is accused of killing 14 civilians during WW II in reprisal for partisan activity in Italy…

Eric Posner, over at VC, remarks on the continuing attention to Carl Schmitt, and indeed the increasing attention to him within the American jurisprudential community:

Why do people like me and Sandy Levinson keep talking about the Nazi philosopher Carl Schmitt? Schmitt was skeptical that a parliamentary democracy can handle crises: it can only role over and let the executive act. You can read Levinson here (marred only by the pervasive tone of indignation: what exactly does he (realistically) expect?), or for a scarily timely scholarly treatment of Schmitt and our administrative state, see this paper by Adrian Vermeule.

For my own part, I have moved the other direction.  I came to Schmitt really, really early on, in the first wave of translations that brought Schmitt into English-language political theory.  This was via the critical theory journal Telos, which (to Steve Holmes’s dismay in, for example, his not-so-good book on illiberalism and particularly in a review from the period in the New Republic that called out Telos by name) did many of the initial translations as well as translations of Schmitt’s European pupils of the post war period.  I immersed myself in Telos’s Schmitt studies in those years, in the late 1980s and early 90s, as a member of the editorial board.  But at the moment when Schmitt started to enter the US legal academy, I found myself moving away from Schmitt studies.  (I don’t, for the record, think of him as a “Nazi” philosopher; I think of him as a reactionary as to philosophy, and a quite nasty opportunist as to personal qualities who never learned anything morally salutary from his careerist embrace of the Nazis.  But there are a great many important thinkers who could not be accounted morally ‘good’ and yet are worth reading - anyway, this is a discussion had endlessly.) 

My reason for moving away from Schmitt as a means of explaining or understanding political or legal theory in America is that the connection is simply historically too contingent.  Schmitt’s clarity as to things like emergencies can be found in many forms of philosophical discourse, and I think it is more useful to locate them in sources that have a greater historical connection to the intellectual roots of the debates in America, if the purpose is to understand those debates in an American context - Thucydides, or even Machiavelli.  Put another way, I don’t really think that Schmitt is comprehensible outside the context of Weimar.  Nothing is weirder or more intellectually misplaced to me, these days, than to read somewhere about the “Schmittian” approach to emergency in the Bush administration, for example.  No one in the Bush administration had ever read Schmitt, ever heard of Schmitt, and to describe the approach as Schmittian adds, in my view, very little intellectually to understanding what it thought it was doing, or what it was doing.  This is not to suggest that it did not have a strongly held view of the role of executive power, particularly in an emergency, nor is it to deny that Schmitt had interesting things to say about emergencies and parliamentary democracy.  But the one does not really connect with the other, at least not in the way that makes it useful for American legal theory.  We are not Weimar.  

If this means that I think there are limits on ahistorical application of ahistorical political theory, well, at least in the context of a philosopher who cannot help but be located in everyone’s brain as forever about Nazis and Weimar, yes.

The letters section of the Times is probably not long for the world but it does still have the function of pulling out pithy representative statements from what would otherwise be lost in the haystack of the paper’s website comments section.  So here’s this from Northwestern University lawprof Steve Calabresi on Adam Liptak’s excellent piece from Friday on the flagging international stature of the U.S. Supreme Court:

Those of us concerned about citation of foreign law — your article quotes me as one of them — believe in something called American exceptionalism, which holds that the United States is a beacon of liberty, democracy and equality of opportunity to the rest of the world. We think that it is a good thing that constitutional liberties like freedom of speech and of the press are protected more vigorously in the United States than in any foreign country.

We believe that the rights of man, as President Kennedy said in his Inaugural Address, “come not from the generosity of the state, but from the hand of God.”

The country that saved Europe from tyranny and destruction in the 20th century and that is now saving it again from the threat of terrorist extremism and Russian tyranny needs no lessons from the socialist constitutional courts of Europe on what liberty consists of.

This mentality was once pretty pervasive; the possibility that the US might have anything to learn from other countries when it came to rights just didn’t compute.  Whatever America did defined rights.  But the political culture has clearly begun to shift.  How many 25-year-olds, even conservative ones, would be putting it this way?

Paul Kennedy’s book on the history and future of the United Nations, Parliament of Man, appeared in 2006. A Spanish translation appeared in late 2007, which I review in a (very) long essay (some 10,000 words, be warned) appearing in Spanish in the Revista de Libros (Madrid), November 2008 issue. The Revista, for which I serve as political science advising editor is one of the best book reviews going in any language, anywhere.  (And, yes, I am tooting my own horn and hawking my own scholarly wares in this post.)  It is interesting, as a side note, to see how the title of Kennedy’s book has shifted between national markets. In the US edition, it is subtitled “the past, present, and future of the United Nations.” In the Spanish edition, it is merely the “history of the United Nations.” Whereas the British edition has it as “the United Nations and the Quest for World Government.”  
My review runs across a wide range of issues, related both to Kennedy’s work and the project of global governance. My general view of Kennedy is that he is a “platonist” as regards the UN; forever looking past the rather sordid reality of the present to dream of the glorious future of global governance that is, alas, always coming but never come. And, in a world that seems to be returning to stronger regional multipolarity, global governance looks less on offer, and the UN is, at best, a place for multilateral negotiation among sovereigns. My view is that global governance always looks most possible when the US is at its hegemonic strongest to offer the guarantee of security that allows all the platonic dreamers to do their dreaming. History however is upon us once again.  The essay is available on SSRN in the English version that will appear in Spanish in the Revista in November 2008; I will also post the Spanish version to SSRN once it is out. Some bits - this one observing that a Europe attuned to the spirit of Raymond Aron would look with alarm upon American leaders in a new administration bearing the gifts of ‘meek multilateralism’ and superpower humility.

The New York Times and Washington Post (and lots of other places) report today (Saturday, September 20, 2008) that the two senior executives of the Human Rights Watch Americas Division, executive director Jose Miguel Vivanco and deputy director Daniel Wilkinson, were detained by Venezuelan security personnel in Caracas and placed on a plane to Brazil.  From the NYT:

Armed men in uniforms apprehended José Miguel Vivanco, a Chilean citizen who is the Americas director for the New York-based group, and Daniel Wilkinson, an American who is deputy director for the Americas, and placed them on a flight to São Paulo, Brazil, where they arrived on Friday morning.

“About 20 men, some of them in military uniform, intercepted us when we arrived at our hotel after returning from dinner Thursday night,” Mr. Vivanco said in a telephone interview from São Paulo. He said he struggled briefly with the security officials when he tried to send a message on his BlackBerry to The New York Times about the expulsion.

The officials then disabled the BlackBerries of the two men and prevented them from contacting anyone in Venezuela, including diplomats from the embassies of Chile or the United States. “They informed us of our apprehension and told us they had entered our rooms and had packed our belongings,” Mr. Vivanco said.

People who have read my writings on human rights know that I have plenty of disagreements with Human Rights Watch on various matters of law, policy, the direction of the human rights movement, etc.  In twenty or so years, however, I have almost never had an issue with its factual reporting, even when I disagreed with its interpretation of it.  I have never had any questions about the veracity of its reporting in Latin America over all these years.  Jose Miguel Vivanco, whom I have known for decades, is a person of unshakeable integrity.  So I just take it as more Chavez thuggishness when he throws HRW out of the country.  It’s not as if HRW has not been equally tough on the Uribe government in Columbia in its reporting.

(The former director of HRW, and now president of the Open Society Institute, Aryeh Neier, once told me that he regarded as perhaps his finest moment at HRW as when, after having issued many reports on murders, disappearances, all sorts of stuff by the US backed contras in Nicaragua in the 1980s, HRW’s Americas division issued a report on death squads run by the Sandinistas; it provoked a storm of protest among left-wing supporters of the Sandinistas, who could not believe that a human rights organization could criticize anything on the left, including a famous denunciation of HRW, its Americas director Juan Mendez (lately special advisor to the UN SG on genocide and currently president of the International Center on Transitional Justice in New York), and Neier as … “poisonously neutral.”) 

(The Human Rights Foundation, founded by that ever-remarkable Venezuelan Thor Halvorssen, also covers Venezuela very closely.)

We’ve spent a lot of time here at Opinio Juris on the implications of the Supreme Court’s Medellin decision.  Very little of that discussion, however, has considered the decision’s impact on the Senate’s role in U.S. treaty-making.  That may be because the Court itself spent so little time on the Senate.  It did recognize that the intent of the Senate, together with the Executive, could factor into giving a treaty self-executing status.  But, for the most part, the decision focused more on how treaty text would determine a treaty’s self- or non-self-executing status, and, more importantly, how non-self-executing (NSE) treaties could only be made judicially enforceable by Congress as a whole, not via an Executive memo.  Certainly, in doing so, the Court clarified some important questions about treaties in U.S. law (i.e., dispensing with the multi-factored test for self-execution favored by Justice Breyer in dissent and several lower courts; distinguishing self-execution questions from those involving private rights of action).  But, the Court also left open significant questions about treaties in U.S. law; i.e., how exactly courts should decide when a treaty is self-executing; and whether a NSE treaty is simply not justiciable, or if it lacks the force of domestic law entirely (which, in the latter, case, might mean, for example, the President has no “take care” duties with respect to NSE treaties). 

It turns out, however, that the Senate may have strong views of its own on these questions that do not coincide completely with the Court’s pronouncements.  In the recent SFRC reports recommending Senate advice and consent to a slew of treaties, the SFRC has included “declarations” of self-execution, accompanied by an interesting explanation of the SFRC’s view on where treaties fit within the U.S. legal order.  Here’s what the Court had to say with respect to the 49 treaties included in the package of agreements involving the EU and its member states on extradition and mutual legal assistance:

The oft-discussed relationship of the United States and International Law will be the theme of this year’s International Law Weekend of the American Branch of the International Law Association.  The conference will be held October 16-18, 2008, at the Association of the Bar of the City of New York, 42 West 44th Street, New York City. 
The kick-off panel will focus (of course) on the U.S. Presidency.   A New Presidency: A New U.S. Policy at the U.N.? will include Republican and Democratic strategists and academic commentators. Additionally, the keynote speaker at the annual luncheon on Friday, October 17, at 12:30 p.m. will be John Bellinger, the Legal Adviser to the U.S. Department of State. That Friday evening, the Annual Gala Reception will be hosted by the Permanent Representative of Belgium to the United Nations. The ILW 2008 Program will also feature over thirty other panels, addressing topics relating to international trade and investment, international adjudication and arbitration, human rights, international law in U.S. courts, generation of international law, transitional justice and international criminal law, and the international environment. To view the complete ILW schedule and to register for the conference, please visit http://www.ilsa.org/conference/ILW.php or www.ambranch.org.

A couple of years ago, I examined whether popular conceptions of the current Bush Administration’s disdain for treaties had quantitative support.  I found to my surprise that the Bush Administration did not appear to be concluding significantly fewer treaties (whether solely pursuant to Article II or to all forms of U.S. agreement-making combined).   Looking just at Article II treaty activity in the current Congress, however, I might have to amend those remarks; the Bush Administration appears to now be enthusiastic about Article II treaty-making in a wide range of areas (e.g., armed conflict, intellectual property, law enforcement, maritime, nuclear, tax, telecommunications, counter-terrorism).  As a result, for all its anti-internationalist credentials, the current Administration may actually end up setting a record in terms of the number of Article II treaties receiving Senate advice and consent in a single Congress.

Of course, if it does so, the Senate Foreign Relations Committee (SFRC) staff will share a large part of the credit.  Just as my former colleagues at the State Department have been hard at work getting treaties transmitted to the Senate, the SFRC has worked vigorously to get those treaties before the full Senate for votes on advice and consent.  Just look at what the SFRC and the Senate have already done during the 110th Congress:

I want to follow up Roger’s post on law professor sign on amicus briefs with a really basic, genuinely naive question.  I am not a litigator and do not know very much about litigation.  I have never really understood the rationale behind courts accepting amicus briefs - law professor briefs, or any other kind.  I’m not putting this as a snarky comment hiding behind a question.  I find it genuinely puzzling.  I understand the etymology - friend of the court - but the ones I have worked on seemed to have two distinct functions or rationales.  One was as a mechanism for getting the interests of a non-party somehow worked into the litigation.  The other seemed to be about informing the court, but regardless of the high toned language, always as an advocate.  I don’t believe I have ever worked on or ever seen an amicus brief that I could describe as a genuinely neutral, non-advocacy, purely informative “friend of the court” brief.  Was there ever historically any practice of actually neutral, purely informative briefs, not holding a semi-covert brief for one side or the other, or for some third party?  And why do courts accept these things?  I also wonder whether any of our OJ readers from outside the US legal system find the system of amicus briefs as puzzling as I, as a non-litigator, do.  I would welcome any explanation of how the system works, where it comes from, and why it exists as it does.  Is there any body of scholarly literature devoted to it?  As I recall, my colleague at WCL Padideh A’lai has written a well-regarded article on the use of amicus briefs in the WTO, but that’s the only thing in the literature (which I have certainly not researched) I’m aware of.  Comments welcome, please.

This past month I received an email sent to over 60 law professors inviting us to join an amicus brief. The case is before the D.C. Circuit and involves the important issue of corporate responsibility for human rights violations under international law. The email was sent at approximately midnight on Monday night and invited a distinguished group of over 60 law professors to add their names to the brief. According to the email, no significant comments were welcome, and any law professor who wished to join the amicus brief had one business day–34 hours to be exact–to decide whether he or she wished to join the brief. I did not join because I do not believe in signing my name to a brief that I had no role in drafting.

Now to be clear, I do not have any objections to law professors filing amicus briefs. I have little doubt that law professor amicus briefs can assist the court in resolving complex legal issues that are within their professional expertise. Such briefs may be “friends of the court” in the best sense of the word. But the current fashion of “me too” law professor amicus briefs strikes me as counterproductive. I clerked on the D.C. Circuit over a dozen years ago and I don’t recall a single law professor amicus brief, much less any of the “me too” variety. What’s changed in the interim? Do other law professors in other disciplines do this? Are these briefs the product of human rights clinics where students do the yeoman’s work of writing the brief, but they feel they need the gravitas of distinguished names to give the brief heft?

Of course, no judge or law clerk believes that all those law professors who sign onto the amicus brief actually played a role in drafting it. Wouldn’t it be more productive to get a half-dozen big name law professors to sign the brief, to at least give the court the (false) impression that each helped draft the brief? I would suspect that there is an inverse relationship between the impact of the amicus brief and the number of law professors who sign their name to the brief. Obviously there are plenty of law professors whom I greatly respect who are willing to sign “me too” amicus briefs, so I must be missing something. I just don’t know what it is.

Two months ago, I predicted that the Security Council would not have the votes necessary to defer the ICC’s prosecution of Bashir.  Nostradamus I’m not:

In a last-ditch attempt to prevent ICC judges from issuing an arrest warrant for Bashir in the next few weeks, Bashir’s supporters - the Arab League, the African Union, China and Russia - will use the UN General Assembly, beginning on 23 September, to ask the UN Security Council to block the prosecution. They are supported by two countries which were instrumental in instigating the ICC investigation - permanent Security Council members Britain and France.

Britain and France say privately that the lines of communication with Khartoum are nearing total breakdown. The Sudanese authorities are blocking the work of the 11,000-strong Unamid peacekeeping force and have not handed over two other ICC suspects - government minister Ahmad Harun and militia chief Ali Kushayb - for whom arrest warrants were issued last year.

Foreign Office Minister for Africa Mark Malloch Brown and his French counterpart, Bruno Joubert, are understood to have both travelled to Khartoum recently to suggest a deal under which Bashir could be let off the hook. It would require Khartoum handing over Harun and Kushayb, committing to the peace process in Darfur and southern Sudan, and allowing Unamid to fully deploy.

ICC supporters are predictably outraged…

I had the pleasure this past Friday to moderate a conference at Pepperdine on social entrepreneurship that featured Matt Flannery, co-founder of Kiva, one of the leading microfinance organizations on the Internet. There is so much I could say about Kiva and Flannery’s remarks, but let me just highlight a few points that were raised by his discussion.

First, the Internet is radically changing the way we do human rights. Flannery’s vision was to use the social networking phenomenon to empower people to do good. Kiva links micro-borrowers with micro-lenders and allows both of them to create community. Each micro-lender has a portfolio of borrowers that tells a story of his or her venture philanthrophy and each borrower has a photo and short bio that tells potential lenders why they should lend them $100 bucks to start their business.

Second, money and age are not obstacles. When Matt and Jessica Flannery started Kiva four years ago in their late twenties, they had nothing to start with other than a wonderful idea, a certain skill set, some good contacts, and a passion to bring their dream to reality. Money and experience were not at their disposal. Matt spent countless hours at a donut shop writing code hoping his idea would bear fruit. Four years later, Kiva has facilitated over 40,000 micro-creditors to loan over $40 million to over 5,000 entrepreneurs throughout the developing world.

Third, ignore the naysayers. The lawyers, the venture capitalists, and the mainstream banks all dismissed Kiva. Matt said he lost months of time launching Kiva because he listened to them and was unduly cautious about implementing his idea. If you are wildly successful, as Kiva has become, you can always hire the lawyers and accountants to help you backfill what was missing when you began….

Spiegel Online has posted a fascinating interview with Rafi Eitan, a former Mossad agent who is now a minister in the Israeli cabinet.  According to Eitan, Mengele was also in Buenos Aires when Eichmann was captured — and would have shared Eichmann’s fate but for the Mossad’s lack of boots on the ground:

SPIEGEL: Josef Mengele fled Germany for South America not long after the end of World War II. When did you pick up his trail?

Rafi Eitan: In the spring of 1960, as we were planning the arrest of Adolf Eichmann, we learned that Mengele was also in Buenos Aires. Our people checked out the address and it proved to be correct.

SPIEGEL: So why didn’t you arrest him?

Eitan: There were just 11 of us and we had our hands full dealing with Eichmann. After we had brought Eichmann to the house where we kept him until we flew him out, my boss at the Mossad, Isser Harel, called. He wanted us to arrest Mengele as well, but Mengele had left his home in the mean time. Harel said we should wait until he returned and then bring both he and Eichmann to Israel in the same plane. I refused because I didn’t want to endanger the success of the Eichmann operation.

SPIEGEL: Was there at any point a discussion about which of the two were more important — Mengele, the “Angel of Death” from Auschwitz, or Eichmann, who administered the deportation and murder of millions of Jews?

Eitan: No. In 1958, we resolved to capture a former Nazi and bring him to justice in Israel. Possible targets included Mengele, Eichmann, the former head of the Gestapo Heinrich Müller, and Hitler’s right-hand man Martin Bormann. The first one we could find was Eichmann, so we concentrated on him.

SPIEGEL: Was Mengele tipped off by the arrest of Eichmann?

Eitan: I assume so. We wanted to keep Eichmann’s extradition to Israel secret and then return to Buenos Aires to capture Mengele. But due to a leak, Prime Minister David Ben-Gurion had to make an official announcement about our success. When our agents returned to Argentina, Mengele had moved out of his apartment and gone underground.

Eitan also recalls that the Mossad had an opportunity years later to kill Mengele with a sniper, but chose not to…

I’m up for tenure this year, which helps explain (I hope) in part my lighter-than-usual blogging of late.  One of the things that has come up in the process is how my home institution (Temple) compares to other law schools in terms of the timing at which tenure and promotion are offered.  Temple hires folks starting out in law teaching as Assistant Professors, with promotion to Associate Professor (without tenure) considered in year 3 or 4, tenure consideration coming in year 5 or 6, and then full professor a couple of years after tenure.  To try and see how this track compares with other schools, Dave Hoffman (of Concurring Opinions fame) and I conducted an informal survey of colleagues at other law schools to see when and how they make these decisions.  

We obtained data on 41 law schools from the top 100 in US News & World Reports.  We found that tenure and promotion timelines could be divided into two broad categories:  1) the 25 schools that link tenure with promotion to full professor; and 2) the 16 schools that don’t.  We also found that 18 of the 36 schools where we obtained timelines allow a new hire to be considered for full professor one way or another in year 5, while 26 out of 36 allow it by year 6.  More specifics (and a question for international law professors) after the jump.

My law school (Washington College of Law, American University), the ABA national security committee of the international law section, and the Federalist Society are putting on a one-day conference on Friday, September 19, from 10-4 pm, in DC, in case anyone is interested.  I unfortunately will not be there, though I am still listed on the program, but it has a stellar group of participants - including (just a handful of the star-studded cast!) Rick Wilson, Deborah Colson, Sandy Hodgkinson, David Rivkin, Steve Vladeck, Madeline Morris, Ben Wittes, and more.  It proposes to continue the debate and discussion that, certainly, OJ has actively been having over what to do about detention post-Guantanam