Archive for
September, 2008

The War on Terror, 2001-08

by Peter Spiro

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. . .

Private Abuse and Public Curiosity

by Roger Alford

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….

US Will Veto Bashir Deferral Resolution

by Kevin Jon Heller

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!

“Political” Commitments and the Constitution

by Duncan Hollis

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.

A Treaty-Happy Senate?

by Duncan Hollis

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?]

Biography of the Dollar

by Kenneth Anderson

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 Alien Tort Statute and International Law (Guest Post)

by Kevin Jon Heller

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…

Stephen Colbert Rules

by Kevin Jon Heller

“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

Gitmo Prosecutor Wants Immunity to Testify

by Kevin Jon Heller

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!

Updating State Climate Change Activity (Kysar and Meyler Wonder If Its Constitutional)

by Peter Spiro

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.

Saddam Sentenced to Death by Judge Who Didn’t Hear the Evidence

by Kevin Jon Heller

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 on Judges Making Foreign Policy

by Peter Spiro

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.

Gitmo Prosecutor Resigns as Act of Conscience

by Kevin Jon Heller


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.


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”…

Universal Jurisdiction Trial Begins in US; No Signs of the Apocalypse Thus Far

by Kevin Jon Heller

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!

Yes, Indeed, France Is Rolling Over for Bashir

by Kevin Jon Heller

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 VCCR and Ineffective Assistance of Counsel

by Roger Alford

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.

Are France and the UK Already Rolling Over for Bashir?

by Kevin Jon Heller

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.


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…

UN 63rd General Assembly Summit Got Underway Monday

by Kenneth Anderson

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.

New Academic Home as of March, 2009

by Kevin Jon Heller

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!

New Essay on SSRN

by Kevin Jon Heller

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!

The Credit Crisis Is Not Limited to the US

by Kenneth Anderson

(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.

Never Too Late for Justice

by Kevin Jon Heller

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…

Carl Schmitt and Emergencies, a Really Fast Comment

by Kenneth Anderson

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.

Steven Calabresi: Unreconstructed Exceptionalist

by Peter Spiro

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 and the Parliament of Man, a Critical Review and Alternative Analysis of the UN

by Kenneth Anderson

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.

Human Rights Watch Detained and Thrown Out of Venezuela

by Kenneth Anderson

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.)

Medellin: The Senate Strikes Back

by Duncan Hollis

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:

International Law Weekend 2008 – The United States and International Law: Legal Traditions and Future Possibilities

by Julian Ku

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 or

Article II Treaty-Making: Alive and Well?

by Duncan Hollis

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:

Why Do Amicus Briefs Exist? Question, Not a Comment

by Kenneth Anderson

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.

“Me Too” Law Professor Amicus Briefs

by Roger Alford

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.

Security Council May Defer Bashir’s Prosecution (And It’s a Good Thing, Too)

by Kevin Jon Heller

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…

The Genius of Kiva

by Roger Alford

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….

Mengele, Eichmann, and the Mossad

by Kevin Jon Heller

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…

Tenure & Promotion Timelines: An International Track?

by Duncan Hollis

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.

WCL Conference on Post-Guantanamo

by Kenneth Anderson

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-Guantanamo and under a new presidency.  It has a panel on how regular American courts might be understood to be creating new legal concepts for dealing with terrorism cases in US district court, another panel on new legal concepts that might or might not be needed, including special terrorist courts, and other matters.  Highly recommended, as Larry Solum might say.  Registration and more information, and CLE credit information, here.  (Apologies for tooting my own school’s horn and I’m very sorry I won’t be there.)

What Is – Was – the Bush Doctrine?

by Kenneth Anderson

I don’t watch television, so I wouldn’t actually know, but I take it there was some sort of dustup in a Sarah Palin ABC interview in which Governor Palin was asked about the so-called Bush Doctrine.  I don’t know exactly what the discussion was about, but I did get an email from a friend a little while ago that said, “You’re the only person I know who has ever defended the Bush doctrine.  What did you think it was?”  Well.  The fact that my academic friend, whom I adore, wouldn’t know anyone who ever defended the Bush doctrine might perhaps be taken mostly as statement about the bubble of academia, but, sure, I would count myself as something of an expert on it.  In my mind, it has meant all or some of the following propositions:

  • The Bush post 9-11 statement that you are either for us or against us when it comes to terrorism and harboring terrorists; 
  • the doctrine of preventative war that was used to justify the Iraq war;
  • the doctrine that America should spread democracy, including by removing dictatorial regimes, and that this is both right per se and conducive to American national security; 
  • the proposition that freedom, as expressed through democracy, is a fundamental human desire; and 
  • the general agglomeration of positions found in the Bush administration’s 2002 national security strategy, including all of the above plus some new things, such as the resolve of the United States to maintain global military predominance.

Maybe there are some other things that I’m not thinking of offhand.  And I see, looking at Wikipedia, that it largely agrees that these positions describe the shifting contours of what has generally been called the Bush doctrine.  And here’s what AEI’s Thomas Donnelly had to say about it in a short position paper in 2003.  Here’s Charles Krauthammer, who coined the term, and here’s a decent news story in the Washington Post on what “experts” think.  I suppose the larger point is that the Bush doctrine seeks to marry, successfully or not, consistently or not, certain realist positions with certain idealist ones.

(Update:  I added a couple of links; it occurs to me reading the news coverage afterwards that perhaps we would be better informed if the press skipped the ‘gotcha’ questions and went with the rather sensible list of questions that Bobbitt and Danforth offered in the NYT, noted in my earlier post.  I, at least, would really like to see the questions cleared up by both campaigns before election day.  Though I’m not holding my breath.)

Philip Bobbitt and John Danforth Pose the Questions of Security to the Two Presidential Campaigns

by Kenneth Anderson

Over at the New York Times opinion page (but alas behind The Wall), Philip Bobbitt and John Danforth argue that

with respect to national security, neither campaign has articulated the fundamental points of view that will allow people to make an informed choice in November … Here, then, on the anniversary of 9/11 … are a dozen questions we would like to see them address.

It is a very good list, I think.  Here are a couple of them (in all of them, note, I am excerpting and shrinking – see the original for full context):

1.  Would you launch large-scale armed attacks against terrorists in Pakistan if the new government there is unwilling – or unable – to suppress these groups and refuses to give United States forces permission to act?

2.  Are you prepared to announce the rules for American intervention for humanitarian purposes and, if so, what would those rules be … should the United States defer to the United Nations … even when they are deadlocked and unable to act?

3.  How long should American troops remain in Iraq … should the United States withdraw according to a predetermined timetable, even if the consequences appear dire for Iraq?

5.  Is it sensible to speak of a “war” on terror, or is this a struggle that should be principally handled by law enforcement?

7.  What if anything should the United States do to further trade negotiations after the collapse of the Doha round in Geneva?

11.  The overseas aid budgets of most countries, including the United States, are far below the United Nations Millennium Development Goals’ target of 0.7 percent of gross domestic product.  Would you favor greatly increasing this aid to meet those levels or would you, instead, try to wean Africa off direct aid in favor of using these funds to spur investment in the region?

I think it is a pretty sensible list of questions, limited to a round dozen.  I would love to have the answers for each candidate in front of me and, as Bobbitt and Danforth note, time is running out on getting answers.

It’s Unanimous: The World Prefers Obama

by Kevin Jon Heller

I hereby nominate all Kenyans for US citizenship:

All 22 countries in a BBC World Service poll would prefer Democratic nominee Barack Obama elected US president instead of his Republican rival John McCain. Obama is preferred by a four to one margin on average across the 22,000 people polled.

The margin in favour of Obama ranges from just 9 per cent in India to 82 per cent in Kenya. On average 49 per cent prefer Obama to 12 per cent preferring McCain. Nearly four in ten do not take a position.

The poll also explored the expected impact of the US election. In 17 of the 22 countries surveyed the most common view is that, if Barack Obama is elected president, America’s relations with the rest of the world are likely to get better. If John McCain is elected, the most common view in 19 countries is that relations will stay about the same as they are now.

On average 46 per cent think that US relations with the world would get better with Obama, 22 per cent that relations would stay the same, and 7 per cent that they would get worse. However only 20 per cent think relations would get better under McCain. The largest number – 37 per cent – think relations under a McCain presidency would stay the same and 16 per cent think they would get worse.

The countries most optimistic that an Obama presidency would improve relations are America’s NATO allies – Canada (69%), France (62%), Germany (61%), United Kingdom (54%), Italy (64%) – as well as Australia (62%) and the African countries Kenya (87%) and Nigeria (71%).

Despite the preference for an Obama victory in all countries, significant proportions in several said they do not favor either candidate, favour both equally or do not know which would be preferable. This was particularly the case in Russia, where 75 per cent do not express a preference between the candidates, but also in Turkey (63%) and Egypt (61%).


The countries with the largest majorities favouring Obama as US president are Kenya (87%), Italy (76%), France (69%), Australia (67%), Canada (66%), and Germany (65%). While no country has more favouring McCain, in five countries the largest numbers do not take a position either way and thus the per cent in favour of Obama is fairly small. These include Russia (18% for Obama), Singapore (29%), Turkey (26%), India (24%), and Egypt (26%).

I think Russians need to read the newspapers more closely, given that one of the candidates has said that “today, we are all Georgians” and picked a VP candidate who just told Charlie Gibson that the US might have to go to war with Russia if it invades another country…

Write on International Law? You Don’t Count.

by Kevin Jon Heller

The legal blogosphere is all abuzz about a new study of faculty productivity at law schools outside the US News top 50.  Here, according to the study, are the top 10: San Diego, Cardozo, Florida State, Richmond, Pittsburgh, Cincinnati, Chicago-Kent, Missouri, UNLV, and Brooklyn.

Some bloggers — see here and here, for example — think the study is a useful gauge of a law school’s scholarly culture. Maybe that’s true for some fields, but the study simply reaffirms the marginalization of international law in the American legal academy.  According to the study, for example, international law professors are only productive if they publish in the main law review of an American law school or in the international law journals at Harvard and Virginia (both of which are excellent, of course).  Publish with the American Journal of International Law, the Yale Journal of International Law, or the Columbia Journal of Transnational Law?  You’re Jack Nicholson in The Shining.  And don’t even think about those damn peer-reviewed foreign law journals, like the European Journal of International Law, the Journal of International Criminal Justice, or the Journal of International Economic Law.  Don’t you have anything better to do, like building your World of Warcraft character?

It’s also worth noting that the study awards extra points for length — “0 points for articles under 6 pages; 1 point for articles 6-20 pages in length; 2 points for articles 21-50 pages in length; and 3 points for articles exceeding 50 pages.”  So whatever you do, make sure to pad your articles as much as humanly possible. If you don’t, how can you consider yourself productive?  Sure, many of the top international law journals — especially those ones in Europe that don’t matter — want you to limit your articles to under 12,000 words.  But that’s just because Europeans don’t value hard work like the Americans do.

Jerusalem and Terror: A Follow-up

by Daniel Seidemann

During the last seven years, the levels of terror activity in East Jerusalem have been significantly lower than those in the West Bank. This can only be partially attributed to tighter security control that Israel has in East Jerusalem.

Since 1967, the Palestinian residents of East Jerusalem have led multi-vectored lives. Culturally, socially, and politically, they have “lived in the direction” of the West Bank, and East Jerusalem has remained embedded in the Palestinian metropolis, from Ramallah in the north to Bethlehem in the south. But economically, East Jerusalem Palestinians have been oriented towards Israel.

These ambiguities have traditionally afforded East Jerusalem much of its stability. Especially since the outbreak of the second Intifada, the Palestinian residents of the city have customarily looked north and south, to Ramallah and Bethlehem, seeing how miserable their lives could be, a rather than looking to West Jerusalem, where the emphasis would be on the grossly discriminatory against the Palestinian sector by the Israeli authorities The sense of “something to lose” outweighed disgruntlement, and contributed to the relative calm.

A number of factors now threaten this delicate socio-economic ecosystem.

International Law and Interdisciplinarity: A Workshop on Socio-Legal Methods

by Peggy McGuinness

Professor Elena Baylis hosted a really terrific workshop on socio-legal approaches to international law at the University of Pittsburgh last week.  Elena has a blog post up at Intlawgrrls that explains how the workshop came to be.  As one of the law professors in a group that was split evenly between anthropologists and legal scholars, I learned a lot about anthropological methods (in particular, ethnographic research and some of the debates within anthropology about what makes a particular study an ethnography) and was struck by the significant differences between how law schools and anthropology departments assess and value scholarship and knowledge creation.  These differences create strong disincentives for collaboration — particularly pre-tenure.  Elena notes in her post that one of the drivers behind the workshop and the Collaborative Research Network on Human Rights (itself is an interdisciplinary project under the aegis of Law & Society) is the need to expand opportunities for collaboration across disciplines in empirical scholarship.  The workshop participants seemed in large agreement that empirical work needs to be understood beyond quantitative methods to include a variety of qualitative empirical methods. (Just when did “empirical” as currently used in the legal academy come to be a shorthand for quantitative analysis?)  But to what end?  Why do international lawyers do empirical scholarship?

Rwamakuba Finds a Home

by Kevin Jon Heller

More than two years after his acquittal was confirmed by the ICTR Appeals Chamber, Rwanda’s former Minister of Education, Andre Rwamakuba, is no longer a virtual prisoner in a UN safehouse in Arusha:

Former Rwandan Education Minister Andre Rwamakuba ( 58) has joined his family at Vaud, Switzerland after spending two years in Arusha, seat of the International Criminal Tribunal for Rwanda (ICTR), looking for a host country. “He flew out on Monday after the Swiss government approved his family reunification visa,’’ said Mandiaye Niang, Special Assistant to the ICTR Registrar.

The applicant could not be granted a visa until June when proper immigration status of his family was ensured, sources said. He was seen off at the airport by his room-mate in their secret Arusha location, Andre Ntagerura, former Rwandan Minister for Transport and Communications.

Ntagerura, who was acquitted in 2004 and the decision confirmed by the Appeals Court in 2006, but for the past four years has been trying unsuccessfully to get asylum in Canada for the past four years. Through his Counsel, Ntagerura has filed a case before the Canadian Federal Court to enforce the asylum request.


Rwamakuba is the fourth acquitted person to get a host country.

Others are: former Mayor of Mabanza, Ignace Baglishema (France); former Governor of Cyangugu; Emmanuel Bagambiki (Belgium); and former Mayor of Rukara, Jean Mpambara (Mayotte).

This is excellent news — though it does not necessarily end Rwamakuba’s ordeal, given that he could still be extradited to Rwanda at some point in the future, as I discuss in my recent essay in the Leiden Journal of International Law, “What Happens to the Acquitted?”  I hope that won’t happen — and that Ntagerura will find a home soon.

Corking the Volcano: Terror and Counter-terror in Jerusalem

by Daniel Seidemann

On March 6, 2008, a Palestinian resident of the East Jerusalem neighborhood of Jebel Mukabber entered an Israeli religious seminary in West Jerusalem and opened fire on students with an automatic weapon, killing 7 (all but one under the age of 17) and injuring many more. On July 2, 2008, a Palestinian resident of the East Jerusalem neighborhood of Sur Baher working at a construction site in West Jerusalem commandeered a bulldozer and drove it through crowds in West Jerusalem, killing 3 and wounding many more. On July 23, 2008, in an apparent “copy cat” attack, a Palestinian resident of the East Jerusalem neighborhood of Umm Tuba working on a road crew in West Jerusalem commandeered a bulldozer and drove it through a crowd in West Jerusalem; while nobody was killed or severely wounded in the attack, many were lightly wounded and at least one was moderately wounded.

In the wake of these attacks, a debate has emerged in Israel over how to deal with what many Israelis now see as the terror threat posed by Palestinians in East Jerusalem. There are loud calls from politicians and from the public for punitive actions like demolition of homes and revocation of residency rights and/or social benefits of family members of the attackers, as well as curbs on the freedoms of all Palestinian residents of East Jerusalem, including limitations on freedom of movement (to keep them out of Israeli areas) and restrictions on access to large vehicles (to stave off another bulldozer attack).

Justifications for such measures center on deterrence and security, but honest observers, including writers of editorials in many Israeli papers, recognize that at the heart of these calls are two things. First, a desire to hold someone responsible and to exact from them a price – a desire that is complicated by the fact that all of these acts have apparently been freelance initiatives, not linked to Hamas or any other organized party, therefore denying Israelis someone (still alive) from whom they can demand accountability. Second, these calls stem from desperation to deal with a situation that does not have an easy solution and whose cause is fundamentally linked to a larger political issue, namely, the future of Jerusalem and the fundamental relations between Israelis and Palestinians in the city.

Daniel Seidemann Guest Blogging on the Future of Jerusalem

by Roger Alford

Opinio Juris is pleased to welcome Daniel Seidemann as a guest blogger this week to address the Israeli-Palestinian conflict. Daniel is the founder and legal advisor for Ir Amim, a non-profit, non-partisan association dedicated to an equitable, stable and sustainable Jerusalem. Ir Amim (“City of Nations” or “City of Peoples”) was founded in order to actively engage in those issues impacting on Israeli-Palestinian relations in Jerusalem and on the political future of the city. Ir Amim seeks to render Jerusalem a more viable and equitable city, while generating and promoting a more politically sustainable future. Bearing in mind the symbolic and actual status of Jerusalem as a city of two peoples and three religions, as well as the city’s pivotal role in reaching a political agreement, Ir Amim aspires to a stable Jerusalem, equitably shared by the two peoples; a city that ensures the dignity and welfare of all its residents and that safeguards their holy places, as well as their historical and cultural heritages.

Seidemann has been a practicing attorney in Jerusalem and since 1994 he has participated in Track II talks on the future of Jerusalem between Israelis and Palestinians. In 2000-2001, Seidemann served in an informal advisory capacity to the final status negotiations; serving as a member of a committee of experts commissioned by the Prime Minister Barak’s office to generate sustainable arrangements geared to implement the emerging political understandings with the Palestinians.

I had the privilege to hear Daniel speak when I was teaching in Israel this summer and after hearing him speak I immediately invited him to join us as a guest blogger. My impression is that Daniel Seidemann speaks as one who cares first and foremost about a stable and peaceful Jerusalem, recognizing that both Israelis and Palestinians have legitimate needs and expectations that must be reconciled if Jerusalem is to become a stable and peaceful city.

We welcome Daniel for a week of thought-provoking and provocative discussion about the future of Jerusalem.

Thank You to Tom Farer

by Chris Borgen

On behalf of all of us at Opinio Juris I would like to thank Tom Farer for joining us this week in the first Oxford University Press/ Opinio Juris book symposium to discuss his new book Confronting Global Terrorism and American Neo-Conservatism: The Framework of a Liberal Grand Strategy.

We would also like to thank Kristen Boon and Mark Shulman for joining us as guest commentors. And, of course, thank you to everyone who posted comments, questions, and critiques. We hope you found the discussion interesting and useful.

For the next OUP/ Opinio Juris book discussion, Mary Ellen O’Connell will join us as we consider her new book, The Power and Purpose of International Law

We will post the details soon.

Ken Responding to Tom

by Kenneth Anderson


Thanks for that cordial response.  I did not mean to give offense, but wanted to be direct about my perception. I’m also under pressure for something else, so I won’t go on for too long.  

On the Israel-Palestinian conflict and its role in defining neoconservatism and, more broadly, the book’s thesis overall.  I take your writing very seriously indeed, always have, and the reason I reread the book a second time was because this was what jumped out at me the first time through.  I have read rapidly, as there wasn’t much time, so I will grant that I might have misread things.  I do not want to mischaracterize things, so if I have really misunderstood things, then my apologies to you and OJ readers who – I stress – should read this very important and, especially, complex book for themselves.  Particularly when Tom and I have strongly different take-aways.  That said, certainly I accept those passages, but I persist in thinking that this is a, if not the, core difference identified between neoconservatism and its approach to terrorism and what the book proposes as a liberal alternative.  But look, I will go back and reread this again, in light of your comments here.  Maybe I have landed on particular bits and blown them out of proportion; I have done that to my regret in the past, and if I have here, my apologies.  I will also be curious to see the reviews and see how others see this issue.  I want to leave that now, in order to go on to the other issue.

You are right that neoconservatism is thoroughly consequentialist.  Again, going back to the book, that is a very strong theme of it, and I think it is right, indeed, the most important thing I most learned from the book.  It seems to me the fundamental truth of the book and you are right to highlight it here.  I am not sure that I would attribute quite as much goodness to the liberal way of things as you do, but I think that characterization of the neoconservative position is correct.  The reason it strikes me especially now in light of our exchange is that it aids me in seeing, in a new and fruitful way, how – going back to those various characteristics of neoconservatism that I drew out of Fukuyama – the idealism connects to the aversion to social engineering that was a part of it domestically.  That is, I think you are profoundly right about the consequentialism, sort of in service to a form of idealism, whether about democracy or other things.

I apologize if I have mischaracterized the book and again suggest to OJ readers that they read it for themselves.  It is a greatly provocative book, with a writing style that Tom has honed over decades to be at once highly readable, never dull and never turgid, but which also invites provocative responses; the response might be misplaced, I grant.  But I leave that to OJ readers to figure out.  The book is a great read, and Tom, my thanks for taking part in the discussion with me here.  You’ve persuaded me – against my better time-management judgment, I might add! – to go back to it a third time.

Beyond Caricature

by Tom Farer

Ken, since I have commitments most of today, I can answer only briefly and perhaps a little too abruptly, the surprising, even astonishing remarks in your last post, remarks so surprising, given their source, that I am wondering whether someone pretending to be you actually made the post.

Let’s begin with the granular. In my post on the Israeli-Palestine conflict I say the following: “I neither claim nor believe that the U.S. and the Islamic world would like down together like the lion and the lamb in the Peaceable Kingdom in the event of a settlement. There are other neuralgic points and the baggage of history is not discarded in a moment.” In my book at p. 170 I describe as “hallucinatory” the thesis that a settlement of the conflict would transform the Middle East into the Peaceable Kingdom.

I don’t know if you read my post before writing but you claim to have carefully read my book twice. Nevertheless you reduce it to the proposition that “Resolve the Israeli-Palestinian conflict and you essentially resolve America’s terrorism problem, too . . . “ You go on to say “I realize that this is a caricature, but I don’t think it’s a completely unfair reading of the thesis.” Caricature is one thing. Grotesque misrepresentation is another.

It is misrepresentation at two levels. At the granular level it ignores my explicit rejection of the thesis you impute to me. At a higher level of generality, you state that your reading must be deemed fair because all of the features I have attributed to neo-conservatism could as easily be attributed to the right as a whole. Hence Israel must somehow lie at the heart of my analysis. Yet you yourself go on to distinguish neo-cons from their main allies on the right…

Departing from Peace-time Standards – the Prosecutors’ Perspectives

by Mark R. Shulman

Among several fascinating themes in Farer and Kris Boon dialogue has been the detention and trial of accused terrorists.  Governments that feel besieged frequently depart from peace-time standards.  Their lawyers and diplomats try to justify the departures.  And some arguments are better than others.  But rarely does the public have the opportunity to weigh in on whether to depart from peace-time standards of justice.  This fall, we have that chance. 

In a Wall Street Journal op-ed last summer Michael Mukasey opened a discussion about whether to establish special-purpose national security courts to try those accused of terrorism-related offenses.  Although he hedged, Mukasey appeared to endorse proposals that Congress create new courts.  These terror courts would offer lower evidentiary standards, fewer obligations to reveal exculpatory evidence, and possibly a lower burden of proof for convictions.  Since then, teams on both coasts have been working to develop – or defeat – these proposals. 

What we have not done adequately, however, is to determine the need such a tribunal.  Despite having presided over the trial of José Padilla, Mukasey says the federal district courts are incapable of trying those accused of terrorist acts.  The positions of proponents and opponents fall mostly along party lines.  Conservatives favor some form of special-purpose tribunal to the unprecedented challenges.  Progressives play down the novelty of the al Qaeda threat.  But what do experienced professionals think?  In this case, this means prosecutors with relevant experience. 

On Monday, the New York City Bar will host a discussion to illuminate this question.  What has been the experience of trying accused terrorists in federal district courts?  Former US Attorney Mary Jo White will weigh in, based on her successful experience trying those who bombed the World Trade Center in 1993.  Ms. White will be joined by three of her former AUSA’s.  Andy McCarthy, secured a conviction of the so-called ‘Blind Sheik’ for seditious conspiracy.   Mukasey’s op-ed cites McCarthy’s proposal favorably.  Two other former AUSA’s – Jim Benjamin and Rich Zabel – have recently completed a comprehensive survey of terrorism-related trials.  Based on this research, they will argue that federal courts have done a great job.  Former US Attorney General Benjamin Civiletti will moderate this timely discussion. 

Both major presidential candidates have promised to close down the detention facility at Guantanamo.  This means that we will see more trials.   Derogation is not a dry academic issue.  And the argument should not come down to whether one is a ‘realist’ or a ‘liberal internationalist.  Rational discourse based on real-life experience should inform the decision.  Monday’s discussion promises to inform the debate with the experience and judgment of those who have served on the front lines.  For more information, feel free to contact me at MarkRShulman [at] gmail [dot] com.  

Neocons, Israel, Latin America, and Other Final Thoughts and Questions

by Kenneth Anderson

I want to offer a final entry that covers a couple of topics.  The first is the meaning of ‘neoconservative’ in Tom’s book.  These observations follow in part on Mark Shulman’s very valuable, historically informed post earlier.  the opening chapter on neoconservatism connects the conservative (in a generic sense) foreign policy of the post 9-11 period to the 1970s and especially 80s conservative foreign policy of the late Cold War and, in particular, the Reagan years.  That seems to me right in the general sense that 9-11 foreign policy did not come from nowhere; many of the senior actors (Elliot Abrams, John Bolton, Dick Cheney, Condaleeza Rice, etc.) had been around in more junior roles in the 1980s, as is usual in any presidential administration, and they had formulated their view in part – but, I would add, only in part, in relation to their experiences in the late Cold War and Reagan-Bush pere years.  What I am trying to figure out from the chapter on neoconservatism is what makes it ‘neocon’ as distinguished from just regular old ‘con’ – and that with reference to each of the 1980s and the post 9-11 period. 

I apologize for coming late with this entry; it was hard to get to this until the weekend, and I wanted to be certain I had fully re-read the book – Tom, just when you thought the discussion was over … a late and slightly polemical entry.  Apologies!

Towards Neutralizing the Jihadi Narrative: Settlement (No Pun Intended) of the Israeli-Palestinian Conflict

by Tom Farer

In this final substantive post of my Warholian week as guest blogger I offer a necessarily telegraphic summary of my long chapter on the conflict. Being telegraphic it will not even have the virtue of the chapter, i.e. even if it is clearly wrong, it won’t be wrong clearly.

For two reasons I devoted an entire chapter to a single neuralgic point in the long-seamed rub of the Judeo-Christian (and partially Enlightenment-Secular) West and the Global community of Islam. One is that the conflict brings together in one thrashing bundle most of the general issues I address in the book including the legitimate occasions for the use of force and cruel treatment of detainees and the limits of communal privileging in the face of the universality of human rights. The other is the important place the treatment of Palestinians particularly in the Occupied Territories has in the Jihadi narrative which the violent few use in an effort to rally support in the vast community of believers for whom they claim to fight.

I neither claim nor believe that the U.S. and the Islamic world would lie down together like the lion and the lamb in the Peaceable Kingdom in the event of a settlement. There are other neuralgic points and the baggage of history is not discarded in a moment. However, I do believe that in the absence of a settlement seen to be reasonably just, the Jihadi narrative will continue to resonate. In short I see it as a necessary but not sufficient condition for gradually cutting the cords between the violent few and a wide swathe of actual or potential sympathizers.

When two adversaries of roughly equal power negotiate a settlement, whatever they agree on is generally perceived to be reasonably fair because neither has the capacity to coerce the other into an unfair settlement and each is presumed the best judge of its interests. In a case like this where there is a huge asymmetry of power, a settlement will be perceived as just only if in the course of the negotiations a third party lends its weight to the weaker adversary or if the settlement satisfies external criteria of fairness. Since the relevant third party to this conflict, the US, has placed its weight at the disposition of the stronger party, that condition clearly does not obtain. So we are left only with the second scenario. And the only place where I can see respected external criteria is the corpus of international law…

A Few Little Questions About Enforcement of Int’l Human Rights

by Deborah Pearlstein

Kristen’s last post concludes by opening the giant can of worms at the heart of international human rights law: “Farer’s analogy [between recent U.S. counterterrorism measures and Latin American practices in the 1980’s] shows weaknesses in the [human rights] compliance system generally…. [B]ecause it remains an issue of domestic competence as to whether human rights are enforced in the face of an emergency, international law must find incentives to effect compliance with human rights.”

The topic of incentives for states to comply with international law comes up regularly in conversations here at Princeton with my political science colleagues. In these conversations it seems easy to buy the argument for why, for example, international trade laws and institutions can have an effect on state behavior (to the extent they do). They’re structured around and depend on economic interests – incentives one can count on states to have and to act upon in one particularly reliable direction.

It is perhaps unfair to put Kristen and Tom on this spot on this rather enormous point, so of course all responses welcome. But if one excludes economic incentives from the box of tools one contemplates deploying in support of international human rights enforcement (and we can talk about whether or not this exclusion makes sense) – what incentives do you think would be plausibly effective? Or more to the point, what non-economic state interests do you propose to target in a way that makes international human rights enforcement regimes more effective than they currently are?

Meta-Methodology; Dichotomies vs. Grids; Ideas, Interests, Intuitions and other Explanations of Policy Preferences, Etc.

by Tom Farer

Colleagues, The pan of discourse is beginning to sizzle. A delightful sound. So rather than racing on to another main issue I attempt to address in my book, in this post I stop and engage with discussants.

Let me start with Ken Anderson in part because his very interesting categorization of ways of thinking about strategy lubricates a segue to Mark Shulman and arguably Chris Borgen as well. For those who need a memory prod, he identifies three of these strategic paradigms about strategic paradigms. One, which I apparently share with Ken himself, proposes the possibility and necessity, I would contend the inevitability, of thinking in terms of a broad diagnosis of the jihadi terrorist phenomenon and an appreciation of the resources available for responding to it and the costs within a grand strategic framework of one or another tactical response, all then woven into a Grand Strategic Response. Persons within that category of thinking may and in fact do disagree about the appropriate contents of that Grand Strategy, but there is a discussion for another time. The second category is defined by the claim that the furious disagreements among grand strategists reflecting deep, visceral disagreement within the larger polity condemn us to respond only at the tactical level, i.e. to abort particular terrorist operations and eliminate specific terrorist groups in cases where the threat is palpable and more or less immediate, so most reasonable persons involved in decision-making will agree on the need to act and disagreement about means will be modest and therefore manageable. The third category contains the thesis that the nature of this particular threat, namely its loose networked character, makes strategy the hostage of “tactical level considerations.”

My experiences both in government (Pentagon and State Department) and as a long-time observer of foreign policy in this and other countries and even a participant in tactical operations (the UN intervention in Somalia in 1993) have confirmed for me the importance of J.M. Keynes’ famous claim…

Boonstra on the Security Council and Bashir

by Kevin Jon Heller

It’s a tiny bit off topic, but it’s worth noting that after much bluster about how the ICC was destroying the “peace process” in the Sudan by indicting Bashir, none of the Security Council members put deferring the prosecution under Article 16 of the Rome Statute on the Council’s agenda for September.  Over at UN Dispatch, our colleague John Boonstra has an excellent post explaining why that might be the case.  Go take a gander.

The ‘Latin Americanization’ Thesis

by Kristen Boon

Tom Farer’s ‘Latin Americanization’ thesis deserves comment; i.e. that recent anti-terrorism / Guantanamo  measures by the Bush administration are comparable to tactics that certain authoritarian Latin American regimes undertook, in that (i) states of emergency were proclaimed in conjunction with incursions on human rights, and that (ii) neither judicial nor congressional oversight effectively limited the executive’s power.

The analogy between the current US administration’s behavior towards terrorism and the techniques of some Latin American governments is an interesting one.  As Farer notes, an important difference is that the Latin American governments that came under scrutiny by the Inter American Human Rights mechanisms had proclaimed states of emergency, whereas the US government did not formally suspend human rights or habeas corpus guarantees in the name of the safety of the nation…

What do the ideas of neo-cons explain?

by Mark R. Shulman

Building on Tom Farer’s insights, my friend Chris Borgen asks if “what we have is more like a grid with varying degrees of multilateralism and unilateralism as well as degrees of interventionism and noninterventionism.” Chris’s grid helps to explain intervention, i.e. when and how to intervene.  He implies that policy is made to reflect and implement ideas about the relationships between and among states and the role that force plays in shaping them.  Now, historians and social scientists have been trying to explain the expansion of the American empire for decades. Their insights are frequently based on sophisticated methodologies – tested with historical case studies in which the passion associated with current events has had some time to cool. Many traditional historians will agree with Chris that the power of ideas explains foreign policy. 

For instance, my first major article examined interpretations of the War of 1812.  In the late 19th century, proponents of a more aggressive foreign policy rewrote the history of this previously obscure war to illustrate the importance of power projection.  Historians such as Theodore Roosevelt and Alfred Thayer Mahan used their own new interpretations of the earlier conflict to establish an inexorable law of international relations: sea power = national greatness.  In 1898, as acting Secretary of Navy, TR issued orders for the new navy to sink the Spanish fleets, thereby opening the doors to the conquest of Cuba and the Philippines.  He converted his scholarly theories into self-fulfilling prophecies.  Here is a fine example of the power of ideas to shape policy.  Or is it?

Let’s pause the discussion for a moment to ponder some alternative views. 

Ideas, Interests or Intuition? 

Much like Tom and Chris, I have generally ascribed aggressive foreign policies to the power of ideas: including Manifest Destiny, navalism, liberal internationalism, la Mission Civilisatrice, and even the Four Freedoms.  However, it is important to understand that other historians and social scientists have derived equally compelling but different kinds of explanations for aggressive foreign policies. 

Materialist historians have explained America’s foreign adventures in terms of greed.  William Appleman Williams viewed them as intended to preserve “a capitalist frontier safe for America’s market and investment expansion.” Others point to religion and quote William McKinley’s account of his decision to annex the Philippines in order to Christianize (the mostly Catholic) Filipinos. 

Social psychologists, such as Jon Haidt, would take us still further from the notion that foreign policy is driven by rational thought – by ideas.  For Haidt, people make most decisions based on intuition, and then build a rationale that supports their “gut feeling.” I suspect that Tom Farer would agree that this perspective goes some way to explain President Bush’s foreign policy – and perhaps the roar we heard emanating from the Xcel Energy Center in St. Paul last night.

So, how are these perspectives helpful?  As lawyers, we are accustomed to placing motive and intentions into a box. We can more or less agree about what is knowable, based on fairly well established standards of proof.  But when we seek to explore why a group of people establish and implement a long-term strategy, we’re confronting new kinds of issues about what is knowable and what is provable. 

I think that Tom is fully aware of these limitations.  Early in his book, he describes George Bush’s view of the terrorist threat, noting limits in his own ability to understand the President’s perspective. “To the President, if we take him at his word, this conflict, like the preceding one against the Soviet Union, is an ideological battle of world-historical dimension” [at 2, emphasis added].  Tom is saying 1) the President articulates the issue in terms of ideas. 2) We may or may not believe the President intends to tell the truth about his perspective. And 3) the President may or may not fully comprehend why he views the conflict this way.  Tom is right to note these limitations. 

To uncover the essence of the neo-cons’ foreign policy, therefore, I’d argue we need look beyond their words. What we can learn about their material interests, their religious views, and their subconscious may actually provide more enduring explanations.  

Legitimate Use of Force and the National Interest: Continuing the Discussion

by Tom Farer

I want first to qualify my statement in the last post that probably a majority of contemporary scholars and governments still cling to the position that the only legitimate uses of force are defense against armed attack and enforcement action authorized by the Security Council. In fact, particularly among European and American legal scholars and NATO governments there has grown a conviction that force may or at least should be used as a last resort to prevent or terminate crimes against humanity even without Security Council Sanction; these scholars (among whom I number myself) and governments have, in other words, endorsed Humanitarian Intervention (HI). This position could be seen as a corollary of the claim, first officially articulated, I believe, by Lloyd Axworthy when he dominated Canadian foreign policy, that states have a responsibility to protect (RTP) their nationals and that the failure to exercise that responsibility gives other states a license to act as the delinquent state’s proxy for that purpose. (I recognize that the assertion of a right to intervene for humanitarian purposes preceded in time authoritative articulation of RTP.) While not explicitly endorsing Humanitarian Intervention, by endorsing the idea of RTP, Kofi Annan while serving as UN Secretary-General certainly hinted at its legitimacy. The International Commission on Kosovo set up by the Government of Sweden expressed my own views when it drew the distinction between “legitimacy” and “legality” under the Charter. Legitimacy obtains, I believe it was saying in the case of non-UN-sanctioned military operations like NATO’s in the Kosovo case, when the use of force satisfies Just War criteria.

Roger Alford’s thoughtful comment provides a nice segue to the issue for which I tried to lay a foundation in my second post, namely whether or in what circumstances a state can legally take preventive military action unsanctioned by the Security Council against non-state terrorists residing in another country. By “legally” I mean within the UN Charter paradigm. Roger writes that I am “equivocal” about the case where the potential target state is either unwilling or unable to act at the request of the state at risk from the terrorists. Perhaps it would be more precise to say that I am “uneasy and unclear.” Uneasiness is native to the issue and will therefore endure. The lack of clarity is susceptible to immediate correction.

To a degree Roger himself suggested the source of my unease…

Biden Says Obama Administration Might Pursue Charges Against Bush Administration Officials

by Kenneth Anderson

I apologize for interrupting the flow of our conversation with Tom, but it does not seem that this  story has been widely reported in the press at this time – at least I hadn’t seen it.  But I am curious to ask Tom – for later in the discussion – how, if at all, this sits with the strategy that he lays out in the book.  I don’t mean to shoehorn this into the book discussion, but it does pique my curiosity.  More broadly, as a policy matter – because presumably these are areas subject to political judgment and discretion to some extent – how should a subsequent administration react to what it regards as excesses of the previous one?

Legal Restraints on the Use of Force in Combatting Mass-Casualty Terrorism

by Tom Farer

There are only two things about the consequences of the use of force that can be predicted with absolute confidence. One is that innocent lives will be destroyed. The other is that when democracies go on a war footing, the normally ample liberties of their residents (particularly resident aliens but also citizens) will shrink. It therefore follows from the description of Liberalism contained in my first post that liberals will be skeptical about proposals to use force and will oppose them whenever less inherently destructive means appear to be available or when it appears that violent means will have a net adverse effect on humanitarian values. In short, for Liberals there is a presumption against recourse to force which dissolves in the face of exigent circumstances and legitimate ends. Self-defense is a legitimate end. The use of force for traditional reasons of state, namely to enhance national power, wealth or prestige at the expense of other peoples, is not. (I note, parenthetically, that skepticism does not equate with that lock-step exhaustion of non-violent means embedded in UN practice. When, for instance, genocide looms, the most immediately appropriate response will often be to reach for the bayonet. And the very readiness to leap to the option of force, if credible, may obviate its actual application.)

I think it fair to say that at least in the first decade following the founding of the United Nations, the generality of scholarly and diplomatic discourse supported an interpretation of the Charter that incorporated Liberalism’s use-of-force metric. Article 2(4) read in conjunction with the totality of Chapters 7 and 8 was construed as banning force except where it was authorized by the Security Council under its Chapter 7 authority or was employed in self-defense against an actual or what reasonably appeared to be (pace Kelsen and Randelshofer) an imminent armed attack. To be sure, there were scholarly voices of dissent—most notably Julius Stone, Derek Bowett and Myres McDougal– that on various grounds claimed a wider ambit for the use of force. And certainly a number of states able to project force transnationally—in particular the US, the USSR and Israel—episodically employed it in ways that could not be reconciled easily, if at all, with the more restrictive view. But even in the face of that inconsistent practice, probably a majority of scholars and UN members continued right through the Cold War to insist that the only legal uses of force unauthorized by the Security Council were cases of self-defense against actual or imminent armed attack.

In recent years, however, the Charter conceived as above all a formally hegemonic system of restraint on the use of military power to advance self-defined national interests has been buffeted from several quarters…

Liberals, Neocons, and the Grid of American Foreign Policy

by Chris Borgen

In his opening post and in the opening chapter of his book, Tom Farer gives us a tour of the horizon of how international law and self-interest interact in American foreign policy thinking. He paints a picture which focuses on a struggle between two different views of America’s role in the world, the Liberal view and the Neocon view.

In this opening post, I want to press Tom on his use of this dichotomy and ask if the story here is really one of Liberals versus Neocons or rather a more complex picture where there is a cross-hatching of aims, means, and political preferences. Rather than two different world views along a spectrum (Liberal and Neocon), perhaps what we have is more like a grid with varying degrees of multilateralism and unilateralism as well as degrees of interventionism and noninterventionism. I think it is otherwise quite difficult to describe the various voices in American foreign policy debates…

(A description of of these varied voices after the jump…)

Strategic Visions in Responding to Terror, and ‘Meta-Methodology’

by Kenneth Anderson

I want to join the rest of Opinio Juris in welcoming Tom; I have read Confronting Global Terrorsm and American Neo-Conservatism with great interest and am looking forward to commenting on it.  As befits someone who, on some definitions anyway, probably counts as a neo-con, I have some disagreements with the book – starting, unsurprisingly, with the definition of neoconservative and what it means (or meant).  Before getting there, however, I want to start by praising what I think is a great strength of Tom’s book – and that is its willingness to take on a strategic vision, a vision that is both holistic about responding to terror as well as one that reaches back across a longer range of contemporary history in proposing a response.  Although I have sharp disagreements with the nature of the strategic vision that the book offers, as well as disagreements as to the interpretation of the contemporary history (all of which I’ll hold until later posts), I am quite on board with Tom’s ‘meta-methodological’ view (my jargon, sorry!), a view that says, look, it is important to have some kind of strategic vision about what you’re doing in responding to terror.  ‘Policy minimalism’ is not enough.

Combating Terrorism Consistent with the Charter

by Roger Alford

Let me begin the discussion by addressing one of the most important issues addressed in Farer’s book: combating terrorism consistent with the Charter. Farer presents the issue of the permissible options for the United States if it discovers that terrorist organizations or individuals are active in country X and planning an attack on American targets. If the country is hostile to those terrorist elements, the issue is one of joint cooperation in its suppression. But if the country is reluctant or unable to act because the terrorist organization is part of an important ethnic constituency or are located in a remote part of the country where there is virtually no governmental presence. In this scenario Farer argues that there are two options: the United States must obtain the other state’s authorization to act as its proxy or it must seek authorization from the Security Council. Farer reasons that “since all Permanent Members regard transnational terrorism, particularly Islamic terrorism, as a threat to their respective national interests, if the United States can offer persuasive intelligence of the group’s aims, the Council is likely to … authorize preventive action.” (p. 77). As for the third option of taking unilateral action to remove the terrorist elements without the permission of the state or the Security Council, Farer is equivocal. He suggests that repeated violations of the territorial integrity of states would result in the progressive collapse of cooperation on a whole range of issues including non-proliferation….

Posner on the Pundits’ “Surge of Ignorance”

by Kevin Jon Heller

Eric Posner has a new post at The Volokh Conspiracy, “Surge of Ignorance,” in which he quotes a number of New York Times columnists expressing skepticism toward the surge and then links — in a different color font, for emphasis — to a NYT article entitled “U.S. Hands off Pacified Anbar, Once Heart of Iraqi Insurgency.”  Posner offers no editorial comment, but his implication is clear: all of the columnists are ignorant, because the surge has reduced violence in Iraq and is thus a success.

It’s a clever post, even if it distorts the rationale of the surge and selectively quotes the columnists to obscure the basis for their criticism.  Here, then, is my follow up…

Confronting Terrorism and Neo-Conservatism: Initial Provocations

by Tom Farer

I would like to begin by echoing Ben Wittes thanks to Chris and his colleagues for creating this vehicle for informal but rigorous discussion of critical issues at the juncture of law and public policy. And of course I want to express my appreciation at being invited to discuss the themes of my book only partially because, as Oscar Wilde once observed, the only bad public notice is one’s obituary (and even that depends on a still mooted point about post-death prospects). More important than being noticed is being jolted out of the post-publication complacency bordering on cerebral torpor that besets most authors in the aftermath of a book-length effort to understand the world and hence your self, that is the hodge-podge of epistemological convictions, moral intuitions, aesthetic preferences and real and vicarious experiences that constitute a personal world view and shape’s one’s diagnoses of and prescriptions for the world’s pathologies. You type the final page, feel the millstone slip from your neck, and more-or-less consciously congratulate yourself on having thought something all the way through . . . whereupon you stop thinking. Having read with fascination the previous Opinio Juris book discussions, I have to anticipate that by the end of this week my interlocutors will have squeezed out of me every lingering ounce of intellectual complacency.

Chris suggested that I open the exchange by sketching in a few broad strokes what I thought I was doing in this book. My purpose, however well or poorly realized, was to look through a Liberal optic at the most important and neuralgic issues implicated in the struggle against mass-casualty terrorism linked to individuals imagining themselves as Islamic warriors. Those issues are the serial themes of this week’s blog. More specifically, I wanted to tease out the strategic implications of a Liberal optic and to contrast them favorably with the policies and underlying set of ideas and values propagated most famously by neo-conservative publicists and channeled by the Bush Administration particularly in its first term.

To that end I begin the book by explaining what I mean by a Liberal optic and clarifying the irreducible differences between that optic and the one employed by neo-cons…

World Bank Corrects Global Poverty Statistics, Increasing Absolute Number

by Kenneth Anderson

The World Bank last week released new figures – reflecting new and improved methodology – on the number of people in poverty around the world.  The effect was to increase the number from roughly a billion people to something like 1.4 billion.  This is not a case of a sudden upwelling of newly poor people, but rather a change in methodology and an improvement in measurement techniques.  Are there any global policy implications from this?

No, George Washington Did Not “Pledge Allegiance to the Flag”

by Kevin Jon Heller

I had resolved to say nothing about Sarah Palin — really I had.  But since I was sent home from school in Junior High for eliminating the “under God” part of the Pledge of Allegiance when it was my turn to read it over the school intercom, I just couldn’t let this go.  Palin was asked in 2006, during her gubernatorial campaign, whether she was offended by the Pledge’s “under God” phrase.  She responded:

“Not on your life. If it was good enough for the founding fathers, its [sic] good enough for me and I’ll fight in defense of our Pledge of Allegiance.”

As Steve Benen points out at the Political Animal, and as I knew when I was 14, the Pledge of Allegiance was written in 1892 and didn’t include the phrase “under God” until 1954.

Ah, the empty rituals of patriotism…

OUP/ Opinio Juris Book Club: Tom Farer’s Confronting Global Terrorism and American Neo-Conservatism

by Chris Borgen

This week we are pleased to host the first discussion in the Oxford University Press/ Opinio Juris Book Club. Tom Farer, the Dean of the Josef Korbel School of International Studies at the University of Denver, will join us to discuss his new book, Confronting Global Terrorism and American Neo-Conservatism: The Framework of a Liberal Grand Strategy. In addition, Kristen Boon from Seton Hall Law School will be joining us for the conversation as well. Today, Tom will introduce his book in general and we will discuss issues relating to the use of force and, in particular, whether the norms of the UN Charter concerning the use of force have collapsed.  Wednesday’s discussion will focus on the role of human rights law and international humanitarian law in the struggle against transnational terrorism. Thursday’s main topic will be international law and the Israeli-Palestinian conflict. Finally, on Friday we will consider human rights and the rights of traditionalist cultural minorities in secularist states. We look forward to the conversation and, as always, we encourage comments and questions.

Palin Once Supported Alaskan Independence Movement (and What’s Wrong With That?)

by Peter Spiro

Turns out (along with who knows what else) that Sarah Palin was a member of the Alaskan Independence Party, active enough to have attended its statewide convention in 1994. The party argues that Alaska’s accession by referendum in 1958 violated international law, insofar as voters were not given the choice of independence in addition to the ballot options of statehood or continued status as a territory. 

Let’s not waste too much effort on the legal arguments.  Although pre-statehood Alaska was in fact categorized as a non-self-governing territory, subject to trusteeship requirements of the U.N. Charter, the U.N. General Assembly seems to have been satisfied with the outcome of U.S. administration, and I think there’s just a little too much ice under the bridge to turn things back on that. 

But if Alaskans want independence today, why not let them have it? . . .