While the attention of the international news is fixed on the Mumbai attacks, I just want to pause to note that there is a growing tide of sectarian violence in Nigeria, which has claimed another 300 lives in the past few days. The strife in Nigeria provides a window into the types of complex ongoing conflicts that combine ethnic tensions, religious disputes, and resource grabs. Moreover, as in the case of Nigeria, there may be multiple semi-independent conflicts within a single country. What, if anything, can international law contribute to resolving such conflicts…

Georgetown Security Law Brief blog has a super-useful roundup of what a wide variety of people have said about what to do about detainees at Guantanamo.  It goes backwards by date, with op eds, articles, blog posts, all sorts of stuff, including stuff from here at OJ.  If you want to know what the state of discussion is as of November 30, 2008 over Guantanamo, check it out.

Well, not really Stendhal on Thanksgiving.  Stendhal never visited the United States, but that did not inhibit him from expressing a great many opinions about the place (mostly negative observations in the ‘nation of shopkeepers’ vein), particularly in the entire chapter devoted to love in the United States in that curious book-length essay, On Love.   Stendhal was highly skeptical that so uncultured a culture as that of the United States was capable of Great Love - love of the kind in The Red and the Black or The Charterhouse of Parma.  Perhaps he was right.  The following quote below has always reminded me of Thanksgiving Day and Christmas - Jingle Bells - and so in that spirit:

In the Winter … American young people of both sexes drive about night and day over the snow in sleighs, gaily travelling distances of fifteen or twenty miles without anyone to chaperone them; and nothing untoward ever occurs.

Do we really think that ‘nothing untoward’ ever happened?  I suspect, rather, Much Untowardness, Gaiety, and Fun.  This was the culture, after all, that produced … “bundling.”  Still, a charming thought for Thanksgiving Weekend from a quintessential European snob.

Both pretty and pretty fascinating. See this post at Catholicgauze and this one at Gene Expression. Also, tdaxp relates this map to a deflation of Russian power.

Further to Chris’s post below, I wanted to announce that Complex Terrain Lab will be hosting, in addition to the event just passed that Chris mentions, an online blog discussion of Antoine Bosquet’s The Scientific Way of Warfare, between Friday, December 5 and Monday, December 8.  It will feature a number of guest bloggers, including me, and, having read most of the book now, promises to be very interesting.  Feel free to check it out!

Coming Anarchy has this post on the possibility of Greenland becoming an independent country, noting that

Greenland this week voted with a supermajority of more than 75% to receive greater autonomy from Denmark. This may even lead to independence for this enormous island of just 56,000 people.

For more on “arctic nationalism,” including recent events in the Faroe Islands, check out the posts at Coming Anarchy. (And, to pick up a line from CA, “What’s so bad about Denmark?”)

I just came across (a little late I’m afraid) this notice for a program that the Complex Terrain Lab had in London called “BattleSpaces: Feral Cities and the Scientific Way of Warfare.” The speakers were Geoff Manaugh of the excellent BLDGBLOG (he has a post on the event here) and Antoine Bousquet, lecturer on international relations at Birkbek College. The even description is intriguing:

Contemporary political discourse on armed violence and insecurity has been largely shaped by references to spatial knowledge, simulation, and control: “human terrain”, “urban clutter”, “terrorist sanctuaries”, “failed states”, “core-periphery”. The historical counterpoint to this is to be found in the key role the successive technologies of clock, engine, computer, and network have all played in spatializing the practice of warfare. In this context, what implications do “feral” Third World cities, “rogue” cities organized along non-Western ideas of urban space and infrastructure, and “wild” cities reclaimed by nature, have for the battlespaces of today and tomorrow?

Sounds like a combination of fourth generation warfare   and urban studies.  Hopefully, CTLab and BLDGBLOG will have further posts on this topic…

Edward Lucas has an essay in The Economist on political philosophy and the (r)evolution of central and eastern European politics centered on 1989. His essay begins:

They gripped the world, but left political philosophers yawning. According to Jürgen Habermas, a German philosopher, the revolutions that overturned decades of totalitarian rule in central and eastern Europe in 1989 were marked by a “total lack of ideas that are either innovative or orientated towards the future”.

In a sense that was right. One of the most memorable images of the extraordinary “Velvet Revolution” in what was then Czechoslovakia in November 1989 was a map showing a ladder, reaching from the depths of central Europe up a cliff, to the heights of the western part of the continent. “Zpět do Evropy” it read: “Back to Europe”.

For millions of people behind the Iron Curtain, abstract political philosophy and grand schemes had brought nothing but trouble. Vaclav Havel, whom the revolution propelled into Prague Castle as president, said his dream was to live in a “small boring European country”.

But actually Mr Habermas is wrong: a revival of the spirit of 1989 is just what both old and new Europe need. A Czech-born scholar from Harvard, Paul Linden-Retek, has recently finished a fascinating philosophical comparison between Mr Habermas and Mr Havel…

The Linden-Retek paper is available in a link from here.

I will be spending most of the next two months in Europe, with the following itinerary:

• Vienna, December 7-17
• Leuven, December 17-20
• Vienna, December 20-26
• Rome, December 26-January 1
• Amsterdam/The Hague, January 1-February 1

If any OJ readers in those cities — students, academics, activists, etc. — would like to meet for coffee or a drink, please don’t hesitate to contact me: k.heller@auckland.ac.nz.

(Professor Martin Scheinin, whose mission and report on the US and counterterrorism and human rights I discussed below, was kind enough to post a substantive response to my earlier post, “Try or Release.”  Particularly since I was quite critical of that report, let me move Professor’s Scheinin’s response up to its own post.  Apologies for not noticing it earlier - it was languishing in our comment moderation in-box until Peggy pointed it out to me.  And my thanks to Professor Scheinin for his substantive and gracious reply.  Ken) 

Martin Scheinin on Administrative Detention

After a public debate with Kenneth Anderson in Washington DC more than a year ago it comes a bit as a surprise how Anderson presents my views as a bulldozer approach. Let me start by expressing in a nutshell my understanding of what human rights law says about administrative detention …

That’s the interesting argument raised in this cert. petition in Abbott v. Abbott.

Although certiorari is warranted based solely on the conflict among the federal courts of appeals, certiorari also should be granted because the Fifth Circuit’s holding conflicts with the interpretation overwhelmingly adopted by the foreign courts that have addressed this issue. In construing the terms of a treaty, “the opinions of our sister signatories [are] entitled to considerable weight.” Air France v. Saks, 470 U.S. 392, 404 (1985) (quotation omitted). But the Fifth Circuit effectively ignored th[is] virtual consensus….

Although I am skeptical about constitutional comparativism, I think the argument presented in Abbott deserves serious consideration. Considering the policy justifications for avoiding circuit splits, could one not argue that similar policies are implicated when a circuit court interprets a treaty provision inconsistent with the consensus understanding? Justice Scalia stated as much in his 2004 ASIL lecture:

When federal courts interpret a treaty to which the United States is a party, they should give considerable respect to the interpretation of the same treaty by the courts of other signatories. Otherwise the whole object of the treaty, which is to establish a single, agreed-upon regime governing the actions of all the signatories, will be frustrated. Thus, in a recent case [Olympic Airways v. Hussein] I dissented from a decision of the Court that rejected what seemed to me a perfectly reasonable (though not necessarily inevitable) interpretation of the Warsaw Convention that had been arrived at by the courts of two other signatories. “Foreign constructions,” I wrote, “are evidence of the original shared understanding of the contracting parties. Moreover, it is reasonable to impute to the parties an intent that their respective courts strive to interpret the treaty consistently.”

So perhaps we will begin to see more petitions arguing, and the Supreme Court granting, certiorari based on a concern for “treaty signatory splits.”

I take Deborah’s point in our conversation below on the administrative detention point, and think she is probably being a little bit nicer to me than I deserve in suggesting that I am running together two things - law and policy.  Fair point, and although I might return to it sometime next year (if I can persuade myself to assign a research assistant to pull together the “what they said under Bush, what they said under Obama,” and see whether my impression has legs) - anyway, I’m going to leave this one for now, and wish everyone at Opinio Juris, contributors, guests, commentators, and our far flung readers, a Happy Thanksgiving.

I am going now to cook the turkey.

This consists, this year, of two turkey breasts, because I cannot deal with whole birds.  I have salted them overnight, and they are sitting in a mush of rum (please don’t tell J-R that I am cooking with the 23 year old stuff, but I don’t drink, so …), cinnamon, chipotle, nutmeg, vanilla, molasses, garlic, onion, ginger, sesame oil, prunes and dried apricots soaked in rum, anchovy paste, and olive oil - and drizzled with an Italian balsamic vinegar infused with chocolate and of a quality the which should really only be applied to fresh strawberries.

The weather is beautiful and I’ve decided to don my chef’s apron and … grill.

For the last few weeks, popular culture has become reaquainted with the less romantic side of piracy. (For the romantic side, picture my 2 year old running around my living room — yes, this Thanksgiving morning — dressed with eye patch, bandana, “puffy pants” and a plastic sword yelling “arrgh” at the top of his lungs.)   But, with seizures of Ukranian weapons ships and Saudi supertankers, piracy has become serious business once again. For an image of how serious, consider the fate of the Thai fisherman killed by an Indian navy vessel that engaged their ship thinking it was a pirate mother-ship, but which may have only been recently the victim of piracy itself. 

So, what to do?

Thanks Ken. Let me try to clarify again. On one level, you’re quite right: many human rights advocates believe a new system of administrative detention – beyond the criminal law and beyond the Geneva regime – is not a good idea as a matter of policy. (I hasten to add many who are not human rights advocates think a new administrative detention regime is a bad idea as well.) Objecting to such a new regime on policy grounds is, of course, different from asserting that it is categorically prohibited as a matter of international human rights law. Now I hardly wish to defend, explain or criticize Professor Scheinin’s particular remarks; among other things, I wasn’t at the 2007 discussion you mention and haven’t seen a transcript. The relevant paragraph of the report you reprint on this question is almost entirely limited to the Guantanamo detainees. And where it is not (as I read it, only in the last sentence of the second paragraph), it seems to be taking a position on the applicability of existing international humanitarian law (the law of armed conflict). On that question – whether there is an ongoing armed conflict in Afghanistan – I’ll have to respectfully disagree. I believe there is. As you point out, not even the ICRC is likely to dissent here. As for the no doubt considered views of our friends at HRW, HRF, ACLU, and beyond, we’ll have to trust them as always to speak for themselves.

Secretary General Ban Ki Moon has been criticized by some as being invisible, at least compared with his rock-star predecessor, Kofi Annan.  However, he has emerged as UN frontman for a new campaign from the UN for a plan for a simultaneous global jobs and economic recovery program together with green program.  The SG’s program is outlined in op-ed form here in this SF Chronicle piece, “We Need a Big Green Jobs Machine,” SFGate, Wednesday, November 26, 2008.  Global industrial policy?

Thanks to Deborah for that thoughtful response re the administrative detention debate ongoing now … but I don’t think I agree, at least as to the idea that administrative detention has been considered an acceptable policy response among the human rights advocates and civil libertarians.  I should look and see whether ASIL posted video or a transcript of the Tillar House discussion in late 2007 between Professor Scheinin and me, but clearly I needed Deborah there to defend me.  It was a full house, with lots of aggressive and hostile journalists and lawyers and human rights and civil libertarians, and they were not there to entertain the possibility of administrative detention.

(Update: I’ll stick in here, not quite on topic, the link to Jack Goldsmith’s op ed today in the Washington Post, on the question of whether the Obama administration should be taking up new investigations, criminal or otherwise, related to CIA interrogations, detentions, and so forth. Jack Goldsmith, “No New Torture Probes,” Washington Post, Wednesday, November 26, 2008, A13.)

As a follow-up to Peggy’s very interesting post below on the performance of global versus non-global law firms, let me raise an issue that has, for obvious reasons, disappeared in the last year, but which was a topic of discussion in 2007 and might well re-surface at point in the future: law firms going public via an IPO and listing themselves on a stock exchange.  The first firm worldwide to do so was in Australia, Slater & Gordon, a class action personal injury firm, in May 2007.  Its IPO price was  AUD 1.00, rose to 1.40 in the first days after the offering, and is currently at AUD 1.35.

With apologies for arriving late to the helpful Hakimi-Waxman-Anderson exchange, I thought it worth noting the apparent consensus on at least one position I, too, share: there is no categorical international law prohibition on “administrative” (or otherwise non-criminal) detention.  Indeed, I’m not sure I could name a human rights or humanitarian law scholar I know who thinks otherwise (though it’s entirely possible I just don’t get around enough).

Michael Goldhaber at the Amlaw Daily is unconvinced.  Drawing from some of the data discussed at last week’s ASIL-Harvard Law School conference on Globalization of the Legal Profession, Golhaber summarizes the presentations at HLS, crunches the numbers, and looks at the dangers lurking (or already arrived) for firms staking their futures on emerging markets:

James Jones, who chairs the Hildebrandt Institute, cited Citi Private Bank data from earlier this year, drawn from about seventy law firms that do their banking with Citi. These data for the first time show that global law firms (which they define as firms with at least a quarter of their lawyers outside their home jurisdiction) were outperforming their rivals. However, as Jones admitted, as the meltdown goes global, it may only be a matter of time before the data shows every firm bottoming out.

We’re with Jones on his afterthought. If one thing has emerged in the past month, it is that emerging markets will not save the world economy. We don’t mean to be a rude guest, but two institutions that have learned that lesson hard are Harvard University (whose endowment has lost big emerging market bets) and Citigroup Inc. . . .

In the Wall Street Journal editorial Ken mentions below, Goldsmith and Posner argue — in defense of their thesis that Europeans ignore international law if it is not in their interest to obey it — that “when nations led by Europe created the International Criminal Court (ICC), they purported to limit the Security Council’s power to delay or halt ICC trials, also in disregard of the U.N. Charter, which states that Charter obligations trump the requirements of any other treaty.”  That argument misunderstands both the ICC and the UN Charter. Goldsmith and Posner seem to be referring to Article 103 of the Charter, which provides that “[i]n the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.”   As numerous scholars have pointed out, however, the ICC is not a “Member of the United Nations”; it is an independent international organization with a legal personality that is distinct from the legal personality of the Member States that created it. The Security Council thus has no authority to interfere with the ICC beyond the authority specifically given to it by Article 16 of the Rome Statute — in which case the Security Council’s limited ability to “delay or halt ICC trials” is in no way “in disregard of” Article 103…

I have posted a new essay on SSRN, a draft chapter of a book that Markus Dubber and I are editing for Stanford University Press entitled “The Handbook of Comparative Criminal Law.”   In addition to my chapter, which is something of an outlier, the book contains 17 chapters on the substantive criminal law of individual countries.  We have attempted to include a wide variety of national legal systems, including (inter alia) Argentina, Japan, China, Russia, India, Iran, Spain, Egypt, and South Africa.

Here is the abstract of my chapter…

The ICC has been holding a competition to determine which architecture firm will build the Court’s permanent home.  Yesterday, the jury selected three winners.  Here they are, from first place to third place…

I thank Professor Bartow for taking the time to respond to my article, but I am deeply disappointed that she has chosen to misrepresent many of its principal arguments, attacking me for statements I did not make and for opinions I do not hold. My article is a comparative study of constitutional obscenity jurisprudence in the United States and Canada. Prof. Bartow begins her critique by complaining that I should have written about international rather than comparative law: “Although this article was published in a forum dedicated to international law, as [sic] it does not discuss international law at all. There are many salient aspects of international law the author could have engaged with, particularly related to sex trafficking . . . . But since part of his goal was to dismiss harms associated with pornography production, he ignored them.”

The article was published in the Yale Journal of International Law, which, notwithstanding its title, is a forum devoted to comparative as well as international law. It examines the doctrine of obscenity, which criminalizes expression even in the absence of harm. My goal was not “to dismiss harms associated with pornography production.” For example, with regard to pornographic films, I wrote: “Certainly the use of coercion to produce such materials is a heinous crime. But coercive acts and materials produced thereby may be suppressed without resort to the doctrine of obscenity.” (p. 365) Trafficking, battering, rape and murder should be punished as such, and pornographic materials produced without the consent of the participants should be suppressed. But I reject the obscenity doctrine, because it permits the “criminalization of materials produced by and for consenting adults.” (p. 302)

Jack Goldsmith and Eric Posner have an interesting op-ed in today’s Wall Street Journal (November 25, 2008), “Does Europe Believe in International Law?”  I believe it is behind the subscriber wall, but it offers a series of instances in which, in effect, it says Europe says one thing and does another ….

(Update:  Let me add a bit of fuel on the fire … see this brand new article, Sabrina Safrin, “The Un-exceptionalism of US Exceptionalism,” 41 Vanderbilt Int’l LJ 1307 (November 2008), and this bit from footnote 79 (I’ve put the abstract in the full post):  

The dearth of scholarship on European unilateralism reflects the perception of Europe’s multilateralism. See supra note 10 and accompanying text. Not only did the search conducted on Amazon.com on July 12, 2007 reveal, as mentioned earlier, not a single book with “European unilateralism” in its title, it identified only seven works addressing the topic at all. By contrast, the search unearthed 356 books and papers containing as a key term “American unilateralism.” 

I was asked to respond to Bret Boyce’s recent article, published in the Yale Journal of International Law and entitled “Obscenity and Community Standards.” My one sentence summary of his thesis is this: Pornography is private sexual expression with which legislatures and courts should not interfere. Although this article was published in a forum dedicated to international law, it doesn’t discuss international law at all. There are many salient aspects of international law the author could have engaged with, particularly related to sex trafficking, which is profoundly linked to pornography production as well as prostitution. But since part of his goal was to dismiss harms associated with pornography production, he ignored them. Catharine MacKinnon has drawn these important connections in Pornography as Trafficking, a chapter in her recent book: are women human? And Other International Dialogues.

The article would have benefited from clear definition of what Boyce means by censorship. Throughout the piece, he conflates erotica, pornography, and obscenity without differentiating between works that do not require the direct participation of human performers, such as written material, and works that clearly do, such as films of people engaging in sexual acts. Efforts to address the harms inflicted on people during pornography production apply only to the second category of works, so the distinction is important.

Nor does he analytically distinguish between words and pictures. But the federal government often does. The most censorious law the U.S. government has successfully implemented in recent years, the Children’s Internet Protection Act, restricts its reach to “any picture, image, graphic image file, or other visual depiction” that is harmful to minors. Sociologist and researcher Diana Russell noted almost a decade ago that proponents of the anti-pornography-equals-censorship school deliberately obfuscate any distinction between erotica and pornography, and Boyce adopts this tactic.

Boyce critiques Canadian obscenity law in some detail, which I will not address beyond noting that he distorts the positions held by Catharine MacKinnon and Andrea Dworkin. I am mostly in accord with many of Boyce’s general criticisms of U.S. obscenity law, which track to a surprising extent some of the objections Catharine MacKinnon raised over a decade ago in her essay Not a Moral Issue (published in her book Feminism Unmodified, and in Applications of Feminist Legal Theory to Women’s Lives by D. Kelly Weisberg). I agree that the concept of obscenity as a legal construct is far too ambiguous to be a legitimate or just basis for criminal sanctions or civil liability. I also agree that it is highly unlikely that a judge or jury could fairly and consistently delineate a defensible description of “community standards.” And I certainly agree that obscenity law has been used against women, sometimes in contexts such as dissemination of information about birth control, and the breastfeeding of babies in public. I don’t know a single feminist legal theorist who embraces obscenity law or the Miller test as effective or just mechanisms to regulate pornography. Catharine MacKinnon explained:

In this article, I present a comparative study of constitutional obscenity doctrine in the United States and Canada, and argue that the community standards test that has long been the touchstone of this jurisprudence cannot be reconciled with fundamental principles of freedom of expression and conscience. 

In the United States, the imposition of community standards of morality is at odds with the U.S. Supreme Court’s increasingly explicit rejection of mere majoritarian morality as a basis for criminal regulation, especially in the private sexual sphere.  Moreover, the Court’s embrace of local standards was always constitutionally anomalous and is increasingly so in the internet age. 

The Supreme Court of Canada has tried to develop an alternative approach, insisting on a national standard grounded not in morality but in harm, especially harm to women.  However, this national standard is largely a fiction, and the claim that whatever the community does not tolerate is by definition harmful is both theoretically and empirically untenable.  The Canadian Court has implicitly recognized these difficulties in a recent decision that appears to jettison the community standards test altogether, and to focus purely on the question of harm caused by “degrading” and “dehumanizing” materials.  It is not clear, however, that this new approach rescues the doctrine from the vagueness that has led in practice to repressive and discriminatory enforcement, which, ironically, has been targeted especially against gays, lesbians, and feminists. 

Both the U.S. and Canadian experiences thus suggest that the obscenity prosecutions have been arbitrary and highly political.  The article concludes that the prohibition of obscenity is incompatible with free expression, whether such prohibition is based on community standards, or on the harms that are said to flow from “degrading” and “dehumanizing” material.  Bans on sexually explicit materials that involve only consenting adults in their production and distribution cannot be justified in societies committed to the freedom of speech and conscience.

You can read the entire article here.

My congratulations to Professor Hakimi on a very intelligent article, with which I am largely in sympathy, and also to Matt Waxman for his response.  I’m on the fly, without access to documents or the ability to search the web, so forgive the broad brush nature of this comment and question, but let me put it anyway (I’m depending on memory of reading the article, as well as a couple of other things, so feel free to correct me where I have got things wrong).

My difficulty with Professor Hakimi’s proposal is not very much with its substance, but instead lies in a sort of public choice issue:  What I have suggested above frames the question of detention as one in which the US establishes such a system under its domestic law, somehow obtains constitutional clearance for it from the two political branches and the judiciary, and establishes to the satisfaction of the competent authorities within the US constitutional system that it has met its international law obligations.  But the crucial question is whether, instead, a system of administrative detention based substantively and in the first instance upon international human rights law, its fundamental grounding, invites a shift in what I have elsewhere called “who owns” international law.  Does determination of the system’s lawfulness depend upon US courts taking international law into interpretive account?  Or does it shift “ownership” of the determination and interpretation to international bodies, such as the UN Human Rights Council, special rapporteurs, tribunals of one kind or another, or NGOs, that have a completely different view of human rights obligations …

Thanks to Matt for his very thoughtful comments. I agree with almost all of them, so will take this opportunity to amplify on some of the issues he raises.

First, Matt “wonder[s] whether administrative detention is so underdeveloped, or so expansive a concept, that it doesn’t make sense to think of it as a single model at all.” I agree with Matt that the parameters of lawful administrative detention are now underdeveloped. Human rights instruments generally require detaining states: (1) to prescribe in advance the permissible bases for detention and to follow their own laws; (2) to inform the detainee of the reasons for detention; (3) to afford him the opportunity for judicial review; and (4) not to detain arbitrarily. (The framework under the European Convention on Human Rights is more restrictive; instead of prohibiting arbitrary detentions, it prohibits detentions not falling into one of the specified categories.) Based on that formulation, international actors have long accepted that security-based administrative detention is sometimes lawful, but they have failed to provide much guidance on when and under what circumstances it is.

One of my arguments, then, is that the law in this area must be developed in order for it to fill the void for a sustainable detention regime in the fight against terrorism. Even if the law is developed, however, Matt is correct that it would—and, in my view, should—leave some room for state variance. Such variance is not new to human rights law and would not negate the existence of any international legal standard. But it would suggest that a state’s compliance with the international standard be assessed in light of the precise contours of the system it implements.

For instance, I argue that the procedural requirement for judicial review should be understood to mandate prompt, fair, and meaningful review; and that meaningfulness denotes at least three things. First, the reviewing body must have the authority to order the detainee’s release if it determines that detention is unauthorized. Second, the detainee must be equipped to participate in that process and to pursue his rights within it. (That almost certainly requires legal counsel or some other form of independent representation.) Third, the detainee must be informed of the factual basis for detention and be given a genuine opportunity to respond. Even if the international standard on judicial review is developed along those lines, however, states would have some discretion on how best to implement it within their domestic legal systems. In other words, the standard would continue to permit some variance, and whether a particular detention scheme satisfies the standard would be assessed on the facts. Yet, in my view, that variance would not by itself demonstrate a lack of cohesion in the concept of administrative detention.

Second, Matt implores us to focus on the substantive standard for detention. I couldn’t agree more. The standard of non-arbitrariness has been interpreted (outside the security context) to prohibit detentions unless reasonably necessary to satisfy a legitimate government interest. That standard is meaningless in the security context. All governments have a legitimate interest in protecting against serious threats to national security, and the determination that a threat renders detention necessary generally cannot be reviewed by international bodies. I suggest in my piece that security-based detention should be lawful (i.e., not arbitrary) only where the detainee himself poses a serious security threat, where detention is necessary to contain that threat, and where detention is calibrated to last no longer than necessary. Moreover, I argue that the security interests that may justify detention (e.g., disrupting ongoing terrorist activity or developing a more considered criminal case) give way, over time, to the liberty interests against detention. I thus suggest containing the duration of detention by requiring states to satisfy increasingly stringent evidentiary standards if they seek to hold suspects beyond incrementally set periods. After a certain period, all or almost all detainees should be released, deported, or criminally prosecuted. I underscore, however, that I intend for those suggestions only to begin the conversation. I very much appreciate recent efforts—including by Matt—to address in greater depth the appropriate substantive standard for detention.

Finally, Matt asks the difficult policy question of whether states should implement systems of administrative detention. I myself am torn on that question. Nevertheless, I do think it must be answered cognizant of the alternatives. What are the alternatives to a better regulated system of administrative detention? One may be expanding domestic criminal law in ways that contaminate the justice system. Another may be hamstringing state officials against preventing terrorist attacks. Still other, even less palatable alternatives are apparent in state practice: Several western democracies have “dealt with” non-battlefield terrorism suspects by participating in U.S. detentions based on the law of armed conflict; deporting terrorism suspects, despite the risk of home-country mistreatment; and detaining administratively without meaningful controls. If those are the alternatives, then a regulated system of administrative detention may well make sense.

I thank YJIL and Opinio Juris for the opportunity to comment on Monica Hakimi’s article, “International Standards for Detaining Terrorism Suspects: Moving Beyond the Armed Conflict-Criminal Divide.” Monica’s important paper will contribute to a raging debate likely to grow more intense as President-elect Obama moves to shut down Guantanamo and put U.S. detention policy on sounder legal footing.

One of its contributions to the detention law debate is methodological, and especially its focus on state practice. The article’s analysis faces familiar methodological challenges of measuring and assessing state practice – what exactly should we look to in determining the strength of opinio juris, when is state practice law-breaking rather than law-making, etc.—but its effort to look beyond broad pronouncements and investigate state behavior casts doubt on claims that international law is settled and clear with respect to administrative detention for security purposes.

Another contribution is in reframing a bipolarized debate – law of war versus criminal law – into a tripolar one, adding administrative detention, though here I think the point should be taken further. Monica states that the administrative detention model is underdeveloped and proposes some substantive and procedural standards to help fill it in. But I wonder whether administrative detention is so underdeveloped, or so expansive a concept, that it doesn’t make sense to think of it as a single model at all.

Consider the many dimensions along which administrative terrorist detention proposals or examples vary: robust judicial review versus deference to military judgments; short-term versus long-term; one-time challenge versus periodic review; regular civilian judges versus special courts or military panels; right to counsel of choice versus special advocates; full discovery versus secrecy provisions. While it is tempting to think of administrative detention as lying between the criminal and law-of-war models, depending on how these matters are resolved, an administrative system can be even less liberty-protective than traditional battlefield hearings or more liberty-protective than criminal prosecution (a point Monica makes on p. 409). And these are just variations of procedural or institutional design.

I’d like to hear more discussion about substantive questions of administrative detention law. Monica is quite right when she says:

The availability of meaningful legal process is critical because, unlike traditional combatants, terrorists operate by blending into the general population, and any counterterrorism detention regime thus is likely to target a relatively high number of innocents—persons who are suspected of posing a threat but in fact do not (p. 408).

How protective is even the most robust legal process, though, if substantive constraints are defined loosely? Take proof burdens: how strong a case must the government establish? Judicial review and fully-assisted adversarial process won’t solve the false positive problem if the state need only establish its case by, say, preponderance of evidence. Or take the substantive grounds upon which administrative detention may be justified. Even requiring proof beyond reasonable doubt is little protection to innocents or those unlikely to actually commit terrorism if the substantive criteria for detention are defined very broadly (e.g. for “state security” or “supporting terrorism”), much as very expansive material support criminal liability could net many individuals who aren’t very threatening or morally culpable.

I’ve tried to analyze the standard of proof issue here, looking to the law of targeting as a framework from which to draw standards. I’ve also tried to analyze the questions of “why detain?” and “detain whom?” here, arguing that the answers to those questions are at least as determinative of security-liberty balances and consequences as are choices of procedural or institutional design.

Implicit in Monica’s analysis is a similar conclusion. Taking up her challenge to develop coherent standards, I hope to see more discussion of substantive issues such as for what specific purpose might administrative detention be legitimate or illegitimate, and, accordingly, by what substantive criteria should individual detention decisions be judged.

To some these may seem like easy questions: administrative detention is to prevent terrorism, so detain those likely to commit terrorism—duh. Not so fast, though. Monica explains that “[l]ike detention under the law of armed conflict, administrative detention is preventative. Its focus is on incapacitating persons who pose a future security threat….” (p. 388). But detention could be thought to serve the goals of prevention in a number of ways, including putting out of action those believed to be highly dangerous, incapacitating (or deterring) those who—while perhaps not directly participating in plots—indirectly support or facilitate terrorism, disrupting imminent attacks, or facilitating the interrogation of those likely to have information about terrorist planning. And depending on the specific purpose, administrative detention decisions might be based on prior terrorist behavior, expressions of future intent, suspected involvement in specific plots, indications of knowledge, etc. Some of these options seem less legitimate and more prone to error, abuse or overuse than others. As I’ve tried to argue here, just as the merits or dangers of administrative detention schemes depend on their specific procedural characteristics, so too do they depend on the substantive choices or how broadly or narrowly these substantive nets are cast.

I began by noting that Obama’s intentions to close Guantanamo will ignite further debate about the appropriateness of administrative detention, since that will be one option – among a range of all difficult ones – for getting there (see here). As Monica’s paper shows, it would be incorrect to cast this as a debate about whether to cross the administrative detention rubicon. That threshold has been crossed already, by some coalition partners and (though not addressed in Monica’s paper) in other domestic legal contexts. The issue is whether to expand its use, and if so not just according to what procedural constraints but what substantive constraints – recognizing that any new administrative detention expansions to deal with national security threats are especially prone to manipulation and overuse and likely to be viewed as discriminatory by communities whose trust we need to earn. If Monica is right, that some administrative terrorist detention schemes are legally viable, this still leaves open an enormous strategic policy question with potentially dire consequences on both sides.

Thanks to Opinio Juris for hosting this symposium. I read the blog regularly so know to expect a lively and interesting discussion.

My article addresses the international legal rules for detaining “non-battlefield terrorism suspects”—i.e., suspected terrorists not captured on a conventional battlefield or in the theater of combat. Despite the extensive literature on the rules that govern the “war on terror,” and on the treatment of detainees in particular, there continues to be significant confusion about when, and under what conditions, a state may lawfully detain non-battlefield terrorism suspects. On those questions, two broad strands of thought have emerged. One asserts that the law of armed conflict governs to permit extended detention with minimal legal process; the other claims that human-rights law applies to prohibit detention unless accompanied by the ordinary criminal process. Neither strand tracks international practice. Rather than uniformly adopting one approach or the other—the armed conflict approach or an exclusively criminal one—international actors have been groping for new options. International practice demonstrates that states (and particularly western democracies that take seriously their human rights obligations but also face a real threat from transnational terrorism) perceive an occasional but serious need to detain non-battlefield suspects outside the criminal process. In the absence of a clear legal framework for satisfying that need, these states have resorted to a variety of ad hoc or uncontrolled measures.

Based on a review of that practice, I argue that the global fight against terrorism should not be characterized as an armed conflict for purposes of application of a detention regime under the law of armed conflict, but that the reflexive rejoinder—if the law of armed conflict does not apply, then the criminal law must—is mistaken. The criminal law is an important tool for detaining terrorism suspects, but human rights law also recognizes that, even in peacetime, states may detain persons who threaten their security outside the criminal process and instead through calibrated systems of administrative detention. Moreover, administrative detention may better balance the liberty and security interests at stake in the context of particular terrorism suspects. In order for administrative detention to fill the void for a sustainable detention regime, however, its parameters must be better defined. My article thus begins the project of refining the international law on administrative detention, as it applies in the fight against terrorism. The purpose of this project is twofold: to inhibit states from detaining unnecessarily or through uncontrolled and ad hoc measures; and to enable states to detain based on a lawful template that satisfies their legitimate security needs.

The University of Auckland magazine recently published a copy of the university’s 1918 final exam in public international law.  I have only the vaguest recollection of the exam I took, but I it wasn’t this hard.  (Exhibit A: I didn’t fail.)  Have academic standards really declined so precipitously?

How would you fare, readers?

The Yale Journal of International Law (YJIL), one of the world’s leading journals of international and comparative law, is pleased to continue its partnership with Opinio Juris in this second online symposium. This week, we will be featuring two Articles published by YJIL in Vol. 33-2, both of which are available here. Thank you to Peggy McGuinness and the other moderators of Opinio Juris for hosting this discussion!

Today, Monica Hakimi (University of Michigan Law School) will discuss her Article, International Standards for Detaining Terrorism Suspects: Moving Beyond the Armed Conflict-Criminal Divide. Hakimi’s Article examines the question of when and how international law permits a state to detain suspected terrorists away from a theater of combat. After identifying the shortcomings of the traditional armed conflict and criminal paradigms for understanding states’ detention authorities, Hakimi develops a third model—administrative detention under international human rights law—and identifies the policy considerations that should inform this new system to ensure that it satisfies states’ security needs while also inhibiting states from undertaking unnecessary or abusive detentions. Matthew Waxman (Columbia Law School) will be the respondent.

On Tuesday, Bret Boyce (University of Detroit Mercy School of Law) will discuss his Article, Obscenity and Community Standards. Boyce’s Article presents a comparative study of constitutional obscenity doctrine in the United States and Canada and concludes that the “community standards” test—long the touchstone of obscenity jurisprudence—cannot be reconciled with the fundamental principles of freedom of expression and conscience. Ann M. Bartow (University of South Carolina School of Law) will be the respondent.

We hope that you will join us this week for what is sure to be a vigorous and thought-provoking debate!

‘The Marquis does not like bloggers, I warn you; it is his one antipathy,’ the Abbe Pirard said to Julien.  ’Know Latin, Greek if you can, the history of the Egyptians, of the Persians, and so forth; he will honour you and protect you as a scholar.  But do not go and post a single page in French, especially upon grave subjects that are above your position in society; he would call you a blogger and take a dislike to you.  What, living in a great nobleman’s mansion, don’t you know the Duc de Castries’s saying about d’Alembert and Rousseau: “That sort of fellow wishes to blog about everything, and has not a thousand crowns a year”?’

(The Red and the Black, part 2, chapter 34, “The Hotel de la Mole.”  ’Scribber’ in the original, but close in spirit, yes?)

The Institute for War & Peace Reporting has an interesting report today on the Ugandan government’s efforts to prosecute Kony and other LRA members in a special domestic court.  According to the IWPR’s report, the problem is not the lack of political will, but the potential retroactivity of the legislation necessary to make the Rome Statute’s core crimes — war crimes, crimes against humanity, and genocide — punishable under domestic Ugandan law:

ICC judges will examine the cases against the rebel Lord’s Resistance Army, LRA, suspects to determine if they should go ahead, as well as to decide if they can be prosecuted in Uganda’s proposed special court – which was reportedly established after LRA leader Joseph Kony refused to face trial in The Hague.

However, analysts point out that Uganda’s lack of legislation to prosecute war crimes is a clear obstacle to putting Kony and his men on trial in the country.

At the centre of the matter lies a bill that has been languishing in Uganda’s parliament since 2004. The legislation proposes to make the crimes of the Rome Statute – which underpins the rules of the ICC – punishable under Ugandan law. If passed, it would allow the country to prosecute war crimes and crimes against humanity, including genocide…

On behalf of all of us at Opinio Juris I would like to thank  Mary Ellen O’Connell having joined us this week in our second Oxford University Press/ Opinio Juris book symposium for a discussion of  her new book, The Power and Purpose of International Law. 

We would also like to thank Beth Simmons for joining us as a guest commentor.

Thanks also to everyone who posted comments and contributed to the dialogue.  We’ll post the details of our next book discussion soon.

Anyone who still doubts that the ICC’s pursuit of Bashir is unnerving the Sudanese government should take a gander at this article:

An interview with published by Sudan official news agency (SUNA) with British Foreign Secretary David Miliband yesterday is fabricated, according to a statement by the British embassy in Khartoum.

“The statements that SUNA news agency attributed to the Foreign Secretary David Miliband on November 19 are completely inaccurate” the embassy spokesperson said in a statement.

“The Foreign Secretary did not give any interview to SUNA. Nor did he speak about Sudan in the terms described during his recent visit to Damascus” the spokesperson added.

SUNA’s reporter in Damascus quoted Miliband as saying in an interview that London and Paris are working together to introduce a UN Security Council (UNSC) resolution deferring International Criminal Court (ICC) indictment of Sudanese president Omer Hassan Al-Bashir.

“The UK supports the international efforts undertaken in the UNSC aiming to suspend a decision by the International Criminal Court (ICC) to Sudanese president Omer Hassan Al-Bashir for another year” Sudan’s state agency quoted Miliband.

“We realize that these international measures will not solve the crisis but will complicate it even further and may be put the future of peace in Sudan on the brink of collapse” he added.

But the British embassy stressed that UK policy regarding on the ICC is “unchanged”.

I’m not sure what’s more pathetic: fabricating a foreign official’s statement or thinking that you’d get away with it.  Either way, it’s clear that Bashir is becoming increasingly desperate to stave off his indictment.  Perhaps he knows something we don’t?

My friend and colleague Daniel Bradlow, professor of law and director of the international legal studies program at Washington College of Law, as well as SARCHI professor of development law and African economic relations at the University of Pretoria, has a new short opinion essay on how Africa should respond to the global financial crisis and the deliberations of the G20.  I will put up my own views on the financial crisis and the developing world and, particularly, the World Bank and IMF in all this, but I wanted now to bring Professor Bradlow’s piece to the international law professor community.  Those of us who work in international development and law discover that we do not cross-connect very much with public international law scholarship - something I would like to remedy in a small way here at Opinio Juris.  Professor Bradlow:

The power of international law comes from our belief in it and the purposes it serves: the promotion of peace, human rights, prosperity and the natural environment. Beth Simmons in her thoughtful and well-written post suggests that we need empirical evidence of this belief. There is, however, plenty of evidence—indeed, the evidence is overwhelming, if not categorized and precisely quantified.

We know that government officials and officials of international organizations accept international law as binding law because we see it in their actions—agreeing to 50,000 treaties, membership in thousands of international organizations, participation in 200 cases at the ICJ and PCIJ, in thousands of cases in human rights courts, in mediation, negotiation, and arbitration over ever possible right or claim relevant to states—and all in terms of international law. And these officials know there are sanctions for violating international law.

If you were to ask the proverbial man on the street whether he has human rights or his country has inviolable national borders—most would say yes and know these are legal rights from beyond the state itself. One of the ironies of the “realism” of political science is that all this reality does not fit their paradigm so they ignore it…

As was widely reported, the United States and Iraqi negotiators (finally!) concluded negotiations last week by signing the text of a U.S.-Iraq Status of Forces Agreement (SOFA).  Both sides now need to go through their respective domestic approval processes before exchanging the necessary notifications to bring the SOFA into force.  In Iraq, that process includes parliamentary approval, which is not a slam dunk if yesterday’s parliamentary brawl is any indication.  In the United States, the path appears a bit easier, although there’s still tension between the Executive Branch, which is insisting it can conclude the SOFA as a sole-executive agreement, and various members of Congress who insist the SOFA’s more unusual provisions require legislative involvement. 

As I noted a few weeks back, the threshold problem on the U.S. side is the information deficit, given executive reluctance to fully share the text publicly and perhaps even with Congress directly (there are news reports of classified briefings to Congress, and perhaps the text has been provided to certain committees or the leadership, but I’ve yet to see evidence that the document is available to members of Congress generally).  Of course, the Case Act requires the White House to report the whole agreement to Congress within 60 days of its conclusion, whether publicly or in classified form.  At that point though, it will already be an international obligation of the United States.  What’s more, the two sides reportedly signed a separate Strategic Framework Agreement at the same time as the SOFA signing.  This is likely a political commitment, which means, among other things, there’s no obligation to report it under the Case Act.  And I’ve found no one who can tell me what this Strategic Framework Agreement actually says, other than it purportedly would, according to Ambassador Ryan Crocker, “define the countries’ ties for years.” 

For readers interested in getting into the weeds here, McClatchy has an English translation that purports to be from a leaked Arabic version of the SOFA.  I haven’t had time to peruse it closely, but would like to start a comment thread so readers can offer their thoughts about the international and domestic legal implications of the SOFA text.  I’d also welcome more information on the Strategic Framework Agreement, especially whether it contains the security commitments and assurances originally envisioned when this process started a year ago. 

Hat-Tip:  World Politics Review Blog

What will it take to engage in a constructive debate about the power and limits of international law in international affairs? One answer is a book like Mary Ellen O’Connell’s, which makes a compelling case that not only scholars but laypersons and decision makers should think deeply before they disparage the international legal system in its entirety. Mary Ellen’s book is a frontal attack on the contention that there is no way to enforce international law. On the contrary, she shows, there is a range of options, from collective measures to unilateral measures to judicial approaches, international and local. Indeed, the roots of these enforcement mechanisms run especially deep, as her historical account well shows. The bottom of this study is that the existence of sanctions, which come in many forms and with careful delimitations – themselves illustrate the seriousness with which actors across the world take international legal obligations and embrace “the power and purpose of international law.”

Mary Ellen’s book is an antidote to a line of thinking with a long pedigree, but which has been well-captured recently in Jack Goldsmith and Eric Posner’s The Limits of International Law. The danger (Mary Ellen does not disguise her concerns in this regard) is that arguments about international law’s weaknesses can and have been used to justify its circumvention and denigration in the conduct of some states’ foreign policies. Her strategy is to bolster international law by demonstrating that the international community has devised rules for the appropriate sanctioning of law breaking. This is what all communities – domestic and international – when they value rules. The elaboration of these rules over the centuries is evidence that the international community values peace, security, prosperity, respect for human rights, and protection of the natural environment, and wants law to advance these common goals.

One question that comes to mind is how can we evaluate the claims that are made in this book…

Back in 2005 when Jack Goldsmith and Eric Posner published their book, The Limits of International Law, they garnered a lot of attention for promoting the application of rational choice theory to international law (IL), and, equally importantly, suggesting that this method showed IL to have much less influence than conventional wisdom suggested.  And the critics and commentators came out of the woodwork.  Georgia had a symposium on the book (contributions are listed here); AEI had a panel discussion with a slightly different bent; not to mention the dozens of book reviews written in response.

The reaction might lead one to believe that rational choice theory and IL-proponents are doomed to conflicting positions.  Not so, says Joel Trachtman, who has a new book out, The Economic Structure of International Law (Harv. Univ. Press, 2008).