Archive for
December, 2008

Alberto Gonzales’ Idiosyncratic Definition of “Casualty”

by Kevin Jon Heller

From a recent interview with the Wall Street Journal:

“[F]or some reason, I am portrayed as the one who is evil in formulating policies that people disagree with. I consider myself a casualty, one of the many casualties of the war on terror.”

The mind reels.

Germany Challenges Italian WWII Forced Labor Claims Before the ICJ

by Roger Alford

Germany has sued Italy before the ICJ challenging successful Italian lawsuits that have denied Germany’s sovereign immunity arising out of World War II forced labor claims. The ICJ press release is here. Here is Germany’s key argument:

“In recent years, Italian judicial bodies have repeatedly disregarded the jurisdictional immunity of Germany as a sovereign State. The critical stage of that development was reached by the judgment of the Corte di Cassazione of 11 March 2004 in the Ferrini case, where [that court] declared that Italy held jurisdiction with regard to a claim . . . brought by a person who during World War II had been deported to Germany to perform forced labour in the armaments industry. After this judgment had been rendered, numerous other proceedings were instituted against Germany before Italian courts by persons who had also suffered injury as a consequence of the armed conflict.” The Ferrini judgment having been recently confirmed “in a series of decisions delivered on 29 May 2008 and in a further judgment of 21 October 2008”, Germany “is concerned that hundreds of additional cases may be brought against it.”

Sudan: We Won’t Prosecute Haroun or Kushayb

by Kevin Jon Heller

As I have mentioned before, France and the UK have expressed their willingness to support deferring the ICC’s investigation of Bashir if the Sudan prosecutes Ahmed Haroun and Ali Kushayb domestically.  It doesn’t look like the Sudan is going to take them up on their offer:

[Ali Karti, the State Minister at Sudan’s Ministry of Foreign Affairs] reiterated the ability of the Sudanese judiciary to deal with Darfur crimes and stressed that there is no evidence implicating two suspects wanted by the ICC including Ahmed Haroun, state minister for humanitarian affairs and militia commander Ali Mohamed Ali Abdel-Rahman, also know as Ali Kushayb.

“All criminal investigations commissions did not press any charges against Haroun… Even Kushayb there were lots of allegations against him but none were confirmed. They mention his name [Kushayb] without asserting it was his him. They [victims] say that all attackers masked… then how did they identify him?” Karti said.

The Sudanese diplomat’s statements on Kushayb contradict those made by Khartoum that it will move forward to prosecute him.

The Sudanese government often promises to prosecute the individuals responsible for the atrocities in Darfur.  What will it take for the international community to realize that they have no intention of actually doing so?

Some Thoughts on Samuel Huntington’s Passing: Imperial History, Contemporary Elections, and Normative Borders

by Chris Borgen

With Samuel Huntington’s passing on December 24th, I thought I’d  post something on his “clash of civilizations” theory.  Then I came across the following couple of posts from Strange Maps that not only relate to Huntington’s interests, but are quite interesting in their own right. They illustrate the ongoing interrelation of geography, culture, and historical boundaries on modern domestic and international relations. Without ratifying the whole idea of a clash between civilizations, they do show the ongoing relevance of the geopolitical (and geocultural) perspective…

Jordanian Bar Association Wants Moreno-Ocampo Removed

by Kevin Jon Heller

The Jordanian Bar Association (JBA) is on a roll.  In addition to participating in the seminar I discussed in my last post, the JBA has also asked the Jordanian government — Jordan is one of three Arab states that have ratified the Rome Statute — to formally request the ICC’s Assembly of States Parties (ASP) remove Moreno-Ocampo from office because of his investigation in Darfur:

“We expect Jordanian government especially Minister of Justice Ayman Awda to respond as the Jordanian government stance led by King Abdallah supporting Sudan”, said Dean of Sudanese Bar Association Dr Fathi Khalil.Khalil appreciated the stand taken by Jordanian Bar Association for their solidarity with Sudan. He added that Jordanian Bar Association made that request, as it is a member in the ICC and their request comes in the framework of Arab lawyers’ solidarity with Sudan.

He pointed out that this appeal is based on solid ground as Ocampo behavior contradicts with his position.

Khalil described the move as courageous and successful and it is one-step of many, which have been made by Arab Lawyers associations.

“Solid ground” is, not surprisingly, something of an overstatement…

Sundays with Stendhal 10: On Epigrams

by Kenneth Anderson

The Baron could not produce epigrams; he required at least four sentences of six lines each to be brilliant.

(The Red and the Black, part II, chapter 34, “The Hotel de La Mole.”  Sometimes, alas, I fear this is me.)

Fisking a Jordanian “Seminar” on the ICC and Sudan

by Kevin Jon Heller

I know, fisking pro-Bashir propaganda is kind of a pointless task, but the article made me mad with its shameless inaccuracy.  It’s unfortunate that so many Arab readers — the original article was published in the Al Rai Jordanian Daily — are exposed to this kind of garbage concerning the ICC and Darfur.

Without further ado, the fisking…

Jurists and politicians participating in the seminar held for analyzing legal stance of the International Criminal Court versus Sudan have come out with the conclusion that the ICC step is more of a political rather than a legal one, affirming that hearsay testimony is not enough for issuing legal hearings and pointing out that the Court relied for testimony of fact-finding committee only.

This is inaccurate in two respects.  First, hearsay is admissible at trial (subject to certain restrictions), so it can certainly be used to support the issuance of an arrest warrant.  Second, the OTP did not rely either on hearsay or on the “testimony of fact-finding committee only.”  The OTP did rely on both the UN Commission of Inquiry (UNCOI) or the Sudanese National Commission of Inquiry — to which I assume the article is referring — but the ICC’s Fact Sheet on the Investigation in Darfur makes clear that the OTP also conducted an independent investigation that generated more than 100 formal witness statments through 70 missions to 17 countries, including five missions to the Sudan…

Feministe on the CIA Distributing Viagra in Afghanistan

by Kevin Jon Heller

The blogosphere is all atwitter with news that the CIA has been using Viagra to bribe Afghan chieftains into revealing information about the Taliban.  I was going to point out that, however successful the erections-for-info exchange might be, it is worth wondering to what extent the practice facilitates rape, marital and otherwise.  But it appears Cara at Feministe has beaten me to it.  Her post focuses on the following paragraph from the article:

“You didn’t hand it out to younger guys, but it could be a silver bullet to make connections to the older ones,” said one retired operative familiar with the drug’s use in Afghanistan. Afghan tribal leaders often had four wives — the maximum number allowed by the Koran — and aging village patriarchs were easily sold on the utility of a pill that could “put them back in an authoritative position,” the official said…

So How Are We Doing?

by Roger Alford

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As Ken mentioned yesterday, we are extremely grateful for our readers. Lest we grow too comfortable with our incessant pointed discussions, please feel free to offer us any constructive criticism for how to improve OJ in 2009. We really do want to know if we are barking up the wrong tree. So please fill out the survey below and let us know how we are doing (you can tick more than one box or add your own comments):

Daniel Drezner on the Plethora of Lawyers in Obama Administration Foreign Policy Jobs

by Kenneth Anderson

Dan Drezner, a political scientist at Tufts and well known public intellectual aka blogger, has a short column at The National Interest from early December asking why it is that so many of the important foreign policy jobs in the Obama administration are going to lawyers, rather than to public policy or foreign affairs school graduates.  Dan starts with Dani Rodrik (professor at Harvard’s Kennedy School of Government) asking the question:

If you are bright and are contemplating a potential career in American politics, you go to a top law school—not a public policy school. This does not seem to have changed much in recent decades despite everything [Harvard’s Kennedy School of Government] has done to make itself visible and relevant.

UN Ethics Mechanisms Not Doing So Well

by Kenneth Anderson

The Wall Street Journal has a front page news story today that will not surprise anyone who follows the daily life of the United Nations – Andrew Higgins and Steve Stecklow, “U.N. Push to Stem Misconduct Flounders,” WSJ, December 26, 2008, A1.  It seems to be behind the subscriber wall (maybe not), but anyway here is a bit …

Merry Christmas and Cheeriest Holiday Greetings to Everyone

by Kenneth Anderson

To all OJ readers, Merry Christmas to all of you who celebrate it, and the loveliest holidays and best wishes to everyone everywhere.  Peace and goodwill on earth, and may you and your families and loved ones look forward to a good new year.  I know I speak for everyone at OJ in saying that we are honored to have you as our readers.

Track Santa, Courtesy of NORAD

by Chris Borgen

Since 1955 NORAD (and its predecessor CONAD) has tracked Santa’s each Christmas Eve and has answered questions for boys and girls about his progress. NORAD’s Santa tracking service uses interactive maps updated every few minutes at As Santa stops in each location, you can click an icon to learn more about that part of the world. There are also links to update clips being posted on YouTube.

And you can also call NORAD and speak to someone there at 1-877-Hi-NORAD.

This year, there is also a 3D option using Google Earth.

The site includes lots of fun facts and theories about Santa, such as…

Pirate’s Plea For Good Government

by Roger Alford

Great interview in Newsweek by Rod Nordland of Somali pirate Shamun Indhabur. My favorite quote is the pirate’s plea for good government:

Why has there been such an increase Somali piracy? In Somalia all the young men are desperate. There is wide unemployment in the country, there are no sources of income. One of the only sources we have had is fishing, and the superpowers and Asian countries sidelined us in our own sea. So at first we started out just to counter illegal fishing, but international forces started to protect them…. We know the EU and NATO forces are coming, but that is not the solution. The solution is to restore peace in Somalia so that we can have a better life and more job opportunities. I can tell you that sending forces will not stop us going into piracy. They can arrest us if they find us out at sea, they’ve arrested our friends several times, but that will never deter us from this business. The only thing that can stop piracy is a strong government in Somalia.

Medecins Sans Frontieres:Top-Ten Humanitarian Disasters of 2008

by Peggy McGuinness

Medecins Sans Frontieres has published their list and report of the top-ten humanitarian disasters of 2008.  Africa suffers its disproportionate share:

Massive forced civilian displacements, violence, and unmet medical needs in the Democratic Republic of Congo, Somalia, Iraq, Sudan, and Pakistan, along with neglected medical emergencies in Myanmar and Zimbabwe, are some of the worst humanitarian and medical emergencies in the world, the international medical humanitarian organization Doctors Without Borders/Médecins Sans Frontières (MSF) reports in its annual list of the “Top Ten” humanitarian crises. The report underscores major difficulties in bringing assistance to people affected by conflict. The lack of global attention to the growing prevalence of HIV-tuberculosis co-infection and the critical need for increased global efforts to prevent and treat childhood malnutrition—the underlying cause of death for up to five million children per year—are also included in the list.

Here’s the press release. Incidentally, MSF has a terrific blog collection on their site (here), with blogging from volunteer MSF doctors in the field.

When Is a “Joint Statement” a Treaty?

by Roger Alford

The Third Circuit recently had to determine whether a “joint statement” between Germany and the United States regarding Holocaust settlement created a private right of action for alleged violations of Germany to pay interest on the $10 billion DM settlement fund. It presents an interesting question of whether the document should be interpreted to create a private right of action based on federal common law or “international agreement law.” The Third Circuit in Gross v. German Foundation Industrial Initiative concluded that the Joint Statement was a treaty, not a contract.

Speaking of ICC Membership…

by Kevin Jon Heller

Two interesting articles today about countries that want the ICC to get involved in their internal problems.  First, the Indian government apparently wants the Court to prosecute Pakistanis who are responsible for masterminding terrorist attacks, including the recent attack in Mumbai: “[h]ighly placed government sources have told TIMES NOW that decks are being cleared by New Delhi to get the International Criminal Court (ICC) to sanction individual entities in Pakistan that are on India’s most wanted list. The option is being considered by the Indian government as part of diplomatic efforts to get Pakistan to cough up terrorists on India’s ‘most wanted’ list.”

Second, the Iraqi government seems to want the Court to prosecute the MKO, an Iranian terrorist organization currently plying its trade in Iraq: “[t]he Iraqi top judge for campaign against terrorism in the country Jomeh Abdul Davoud has suggested the Hague-based International Criminal Court (ICC) file an appeal against members of the Mojahedin Khalq Organization (MKO) to review the terrorist measures of the group. ‘There is a long way to go to fight against terrorism and all nations and countries should become unified for the goal’, he said in a meeting with families of MKO victims.”

Worthy suggestions, both.  To which I would offer one of my own: if you want the ICC to get involved, ratify the Rome Statute.  That makes the process much easier.

Scott Horton’s Odd Comment About the ICC

by Kevin Jon Heller

Scott Horton has a typically excellent post today at discussing the perversity of right-wing commentators who defend the use of torture.  But I was troubled by the following comment about the ICC, which he offers in agreement with an old editorial by David Rivkin and Lee Casey:

Rivkin’s history is much like that of Reynolds and Goldberg. Back when the Democrats were in power, in 2000, he offered this: “As an alternative to expansive universal jurisdiction and the International Criminal Court, the United States should promote a renewed commitment to the prosecution of ‘international’ crimes in national judicial systems.” (”The Rocky Shoals of International Law,” National Interest, Winter 2000, co-authored with Lee Casey). I happen to agree with this perspective. That is, the International Criminal Court cannot be a forum for the enforcement of the laws of war against the great powers; if that happens, the support upon which it depends for its credibility will collapse. The great powers, and particularly the world’s paramount power, the United States, must enforce the laws itself.

It’s always dangerous agreeing with Rivkin and Casey, whose knowledge of the ICC could fit comfortably on the head of a pin.  And indeed, Scott’s comment seems misguided in a number of important respects…

Sundays with Stendhal 9: Is Anderson an … Aztec?

by Kenneth Anderson

We interrupt the regularly scheduled Sundays with Stendhal to raise an issue of crucial importance, at least for OJ readers in the northern hemisphere above a certain latitude … the days have been getting progressively shorter and shorter.  Will it ever stop?  Will the sun finally disappear and leave us all in total and permanent darkness?  There are certain soothsayers and seers who say that the sun will start making a return soon, but as someone whose moods are pretty light-dependent, and so was really unhappy to miss the ATS at the Malibu Beach House confab for reasons entirely unrelated to aliens or torts, I have my serious doubts.  It has gradually dawned on me that I am actually, probably an Aztec by religious inclination.  Is it possible that if we do not perform the Mexica New Fire Ceremony on the appointed day (the details of which are entirely too gruesome for a family blog) the Fifth Sun will disappear for good and this iteration of the world come to an end?

Another Problem in the Lubanga Trial

by Kevin Jon Heller

Having finally resolved the disclosure issue, the Lubanga trial is set to begin on January 26, a little more than one month from today.  Unfortunately, the problems with the case continue:

The senior trial lawyer in charge of the first case to be tried at the International Criminal Court has been taken off the case little more than a month before the trial is due to open, the Telegraph understands.

Ekkehard Withopf, a highly experienced German prosecutor, has worked on the case of Thomas Lubanga, an alleged warlord from the Democratic Republic of Congo, since joining the court four-and-a-half years ago. He is named on a ruling issued by the court as recently as yesterday.

But a spokesman for the prosecutor, Luis Moreno Ocampo, told the Telegraph today that the prosecution team would now be led by Fatou Bensouda, the Deputy Prosecutor.

The spokesman did not deny that Mr Withopf had been removed from the case by Mr Moreno Ocampo but said the trial lawyer had not been dismissed from his post in the prosecutor’s office…

Conor Cruise O’Brien, 1917-2008: Ave Atque Vale

by Kenneth Anderson

The great Irish intellectual, scholar, and diplomat Conor Cruise O’Brien has died.  Although for many OJ readers, he is remembered most as a diplomat – at the center of the United Nations and the Congo Crisis of 1961 – his greatest influence on me was through his massive study of Edmund Burke, The Great Melody.  

One passage that O’Brien cited among Burke’s early writings always stuck with me, from a letter of the very young Edmund Burke to a Quaker friend, in which Burke expressed, even at so young an age, acute discomfort with the idea of being politically guided by the “inner light” and religious passion rather than exterior reason:

I dont like that part in your letter wherein you say you had the Testimonies of well-doing in your Breast, whenever such motions arise again endeavour to suppress ’em.

W(h)ither the Foreign Relations of the United States?

by Peter Spiro

No, I don’t mean Obama’s foreign policy.  The Foreign Relations of the United States is the official documentary historical record of major U.S. foreign policy decisions and significant diplomatic activity; and these days it’s in trouble.

The tip of the iceberg is the fracas described here and here between the Historian of the Department of State Marc Susser and the Advisory Committee on Historical Diplomatic Documentation (known as the HAC, as in historical advisory committee), composed of diplomatic historians, a political scientist, an archivist, and myself as the designate of the American Society of International Law.  I’ve been on the committee for less than a year.  Congress chartered the committee with section 198 of Pub. L. 102-138 in 1991, mostly to keep an eye on declassification issues.

I’ll refrain here from commenting on the dispute other than to say that the FRUS (pronounced “froos” among those who produce and use it) is well behind its statutory 30-year timeline — that is, that volumes appear no later than 30 years after the events recorded — and junior historians have been leaving the office in droves…

The Lisbon Treaty Lives

by Duncan Hollis

It turns out that all is not lost for the Lisbon Treaty (aka the EU Reform Treaty).  It had all the markings of an unperfected treaty after Ireland gave it a “no” vote this past summer via a referendum. (Interestingly, Ireland was the only state to hold one, since negotiators had designed the Reform Treaty to avoid such reviews given what they did to the EU Constitution.)  Brussels, however, was undeterred by Irish resistance, despite the fact that all 27 EU Member States must approve the Lisbon Treaty for it to enter into force.  It pressed on and has had success in getting other EU Member States to move forward with their own ratifications.  Sweden said yes last month, leaving the Czech Republic, Poland, and Ireland as the only states yet to ratify.  A few weeks ago, the Lisbon Treaty survived the scrutiny of the Czech Constitutional Court, clearing the way for an upper house vote there.  In Poland all steps are complete but for the President’s signature on the instrument of ratification, which supposedly will come when/if the Irish problem is resolved.  But the most promising sign of the Lisbon Treaty’s revival came with last week’s news that Ireland will hold a second referendum on that treaty in 2009:

A Reader Comment on My Karadzic Post

by Kevin Jon Heller

A lawyer and human-rights activist with whom I spent some time while I was in Sarajevo, Adnan Kadribasic, has given me permission to turn his comment to my Karadzic post into a post of its own.  I think it’s remarkable, and I want everyone to see it.  Here it is, edited only for typos:

Dear Kevin, I support all of your reasons and I personally thank you for keeping our legal profession strictly objective. I’ll just add my reasons for my support by uncovering a true event of my early childhood which largely contributed to my choice of legal profession and afterwards the choice of human rights.

Back in 1993 when I and my family were in Doboj (under the occupation of the Yugoslav National Army or in the control of Army of Republic of Srpska), in the period when the biggest atrocities were being committed (talking now exclusively about those mentioned in the verdicts of ICTY), my father and I were listening to radio Sarajevo (radio controlled by the “other” side) and he got really pissed whenever the radio-anchor used the term “war criminal when addressing Karadzic or Mladic (but others too).

And I (being a young Muslim/Bosniak kid of 11 and looking at burned down houses every day and seeing my neighbors being killed) remember that I was puzzled. Even back then he (being a father off two, without a possibility to leave the house and barricading every entrance to the house every evening fearing for his family’s life and dropping over 20 kilos in a month) managed to keep his objective legal reasoning and explained to me the meaning of two concepts — “fair trial” and “innocent until proven  guilty” — and “YES he added — “I would be more than willing to be their defense attorney/advisor whenever they end-up in front of ICTY, if that meant to ensure a fair trial.” He had all personal reasons to hate him but when it came to his profession he gave me an ideal which I recognized in your post, Kevin.

I can only support you Kevin in your quest to empower justice, because this is how legal professionals act, and this will surely contribute to the general public perception of the verdict as plain and simple JUSTICE.

My thanks to Adnan for allowing me to share his comment — and for his thoughts, which mean the world to me.

Obama Pledges to Close Guantanamo…”In a Responsible Way”

by Julian Ku

The BBC is reporting that President-elect Obama has pledged to close Guantanamo within the next two years. The report is based on this  Time Magazine article declaring him (big surprise!) their “Person of the Year.”  I am not 100% sure Obama has really made this pledge, but it certainly can be read that way.  In response to the question as to how voters should judge him in two years time, he answers, with respect to foreign policy:

On foreign policy, have we closed down Guantánamo in a responsible way, put a clear end to torture and restored a balance between the demands of our security and our Constitution? Have we rebuilt alliances around the world effectively? Have I drawn down U.S. troops out of Iraq, and have we strengthened our approach in Afghanistan — not just militarily but also diplomatically and in terms of development? And have we been able to reinvigorate international institutions to deal with transnational threats, like climate change, that we can’t solve on our own?

It is striking that, if this statement is indicative of his priorities, closing Gitmo is at the top of the list. Although his “responsible way” language certainly gives him some wiggle room to escape this pledge.  Bush has been looking for this “responsible way” for at least 2 years, and maybe longer, so I wish the new President-elect luck.

Ninth Circuit En Banc Imposes Exhaustion Requirement on ATS Case

by Roger Alford

The Ninth Circuit yesterday rendered its long-awaited decision in Sarei v. Rio Tinto. The case was argued before the Ninth Circuit en banc in October 2007, with the fourteen month deliberations suggesting that the court struggled mightily with its decision. The decision was fractured, but the essential holding by six of the eleven judges was that exhaustion of remedies is required under this particular ATS case.

Here’s the quick breakdown of the opinions. Three judges (McKeown, Schroeder, and Silverman) held that exhaustion is appropriate in certain ATS cases. “Where the ‘nexus’ to the United States is weak, courts should carefully consider the question of exhaustion, particularly—but not exclusively—with respect to claims that do not involve matters of ‘universal concern.’… Because the district court did not analyze exhaustion as a discretionary matter, we remand for the district court to address this issue in the first instance.” The plurality opinion analyzed footnote 21 of Sosa, as well as the international standard of exhaustion to conclude that prudential exhaustion was appropriate in this case. The plurality concluded that this ATS case presented two divergent impulses: the impulse to safeguard and respect the principle of comity and the second impulse of the “American role in establishing collective security arrangements that support international institutions, including international tribunals.”

Two other judges (Bea and Callahan) concluded that the exhaustion requirement was mandatory not discretionary….

UN Authorizes Attacks on Pirates on Land or Sea

by Kenneth Anderson

The UN Security Council has passed unanimously a US drafted resolution authorizing attacks upon pirates, whether by land or sea.  It is one of those rare security issues in which the great powers, and many small ones, have been willing to come together, at least in granting authority.  So far, piracy has been treated as a nonpolitical issue, including in large part by the pirates themselves.  But could that change?  And what does it mean to move from diplomatic authorization to actual operations?  Is anyone really prepared to intervene on land, even if that were the most efficient place to block pirate excursions?  Will the Obama administration see this as a good first opportunity to organize the multilateral use of force in the post-Bush era, in the rare situation in which multilateral action has a rare chance of succeeding because the great powers agree that each has something tangible at stake?  Read on to find out that I’ve offered … no answers, only questions!

How to Tell If Obama is for Real (on Liberal Internationalism)

by Julian Ku

I have been resigned to a President Obama for at least a year or more, but the prospect of the real thing is still quite weird. I was, not surprisingly, for the other guy but I am mildly optimistic that a cautious President Obama will not usher in radical change in the areas of U.S. policy toward international law.   But who knows? Until recently, I had no idea he was buddies with the apparently corrupt Gov. of Illinois Rod Blagovich? Still, here are four international legal flashpoints where Obama will likely reveal whether he is the real deal liberal internationalist that most readers of this blog, for example, have been waiting for. Or whether he is just “more of the same.” 

Jesus Addresses UN General Assembly

by Duncan Hollis

Just in time for Christmas too.  Of course, it was not really him.  Rather, it was Judge José Luis Jesus, the newly elected president of the International Tribunal for the Law of the Sea (ITLOS).  President Jesus addressed the UN General Assembly on December 5, 2008, and met separately with UN Secretary General Ban Ki-moon a day earlier.  Although these annual speeches traditionally provide UNGA members with an overview of an institution’s major accomplishments in the year coming to a close, President Jesus had little to report.  As I mentioned back in June, ITLOS has only one pending case–between Chile and the European Community over swordfish stocks in the South-Eastern Pacific Ocean.  A few days ago, moreover, a Special Chamber of ITLOS granted the parties request for an extension of time limits until January 2010, effectively continuing the proceedings’ hiatus while the parties continue discussions.  Thus, 2008 has given ITLOS few opportunities to build on the 15 cases it has heard since its creation in 1996.  Instead, like his predecessor Rüdiger Wolfrum, President Jesus chose to lobby UNGA Member States to use ITLOS for their maritime-related disputes, rather than turning to the ICJ or arbitration:  

The President thanked the sponsors of the draft resolution on Oceans and the Law of the Sea for noting the continued contribution of the Tribunal to the peaceful settlement of disputes in accordance with Part XV of the Convention. Furthermore, he highlighted some unique aspects of the Tribunal’s jurisdiction, first drawing the delegates’ attention to the advisory jurisdiction of the Seabed Disputes Chamber, which may give an advisory opinion at the request of the Assembly or Council of the International Seabed Authority, and then highlighting the fact that the Tribunal itself could give an advisory opinion if an agreement related to the purposes of the Convention so provided. He stated that such a possibility may prove to be a useful tool to States as the international community faces new challenges in ocean activities, such as piracy and armed robbery.

In addition, the President pointed out the compulsory jurisdiction of the Tribunal to prescribe provisional measures where a dispute on the merits has been submitted to an arbitral tribunal under Annex VII of the Convention. He stated that the Tribunal may prescribe provisional measures not only to preserve the respective rights of the parties to the dispute but also to prevent serious harm to the marine environment. The President went on to draw the attention of the delegates to article 292 of the Convention, which deals with the prompt release of vessels and crews. He stated that this provision enables the flag State or an entity acting on its behalf to submit an application to the Tribunal for the prompt release of a vessel or its crew detained by the authorities of a State Party. In this regard, he highlighted that the Tribunal has entertained a number of applications for the prompt release of fishing vessels and crews detained for alleged violations of fishing laws in the exclusive economic zone of a coastal State. The President emphasized that these applications have provided the Tribunal with the opportunity to develop a well-established jurisprudence.  

In keeping with the holiday spirit, I’ll wish President Jesus the best of luck in drumming up new business, because without it, I wonder how long the institution can remain constituted in its current form.

Scholars’ Statement on U.S. Detention Policy

by Deborah Pearlstein

At the risk of contributing further to Ken’s angst about the coming post-Guantanamo future, I thought OJ readers might be interested in this latest entry in the public what-to-do-next discussion. Fordham Law School’s Leitner Center for International Law and Justice has begun posting a series of white papers prepared by various groups of scholars with recommendations about international human rights issues under the new administration. Of particular interest might be the Scholars’ Statement of Principles for the New President on U.S. Detention Policy, which addresses Guantanamo (among other things). Prepared under the auspices of the progressive think tank Center for American Progress, the detention white paper is signed by, inter alia, Derek Jinks, Sarah Cleveland, Gene Fidell, and Brig. Gen. David R. Irvine, U.S. Army (Ret.) (Irvine is a former interrogation instructor at the Sixth U.S. Army Intelligence School). Full disclosure – I signed onto it, too. For what it’s worth, at least “some” in the scholars group acknowledged the possibility of ongoing detention – consistent with U.S. and international law – for some of those currently held at Gitmo.

Some of the undersigned note that the new Administration, in its own review, may identify exceptional cases in which a detainee has not demonstrably committed a crime (for example, because there is a lack of admissible evidence to try the detainee for a crime), but the government has evidence to support its conclusion that the detainee has engaged in belligerent acts or has directly participated in hostilities against the United States. Continued detention of such detainees must be in accordance with the principles and policy recommendations outlined in this Statement … [and applicable U.S. and international law].

UPDATE: Lest my nudge back to Ken risk distorting the overall gist of the document, I should hasten to clarify that the signatory scholars were united in opposing “any effort to extend the status quo by establishing either (1) a comprehensive system of long-term ‘preventive’ detention without trial for suspected terrorists, or (2) a specialized national security court to make ‘preventive’ detention determinations and ultimately to try terrorism suspects.”

Musing about Publishing on Paper versus Publishing On-line

by Kenneth Anderson

I received in the mail a couple of days ago an author copy of the journal International History Review.  I have a short piece in the December 2008 issue, a brief review of Stephen Hopgood, Keepers of the Flame: Understanding Amnesty International.  To be honest, I had not heard of the IHR before I accepted the assignment, but I was interested in reading Hopgood’s (excellent) book.  It is an impressive journal with a fine editorial board.  It has a couple of regular academic articles, but is mostly short discussions – a thousand words or so – of recent books.  It is a helpful reference work on these books – e.g., a useful brief review of Ian Hurd’s recent book on the Security Council.  

My question is whether it makes sense into the future for this kind of brief review to appear in a hard copy publication – would it be better if this kind of brief review migrated to the web completely?

Sunset Walks with Fellow Tort Travelers

by Roger Alford

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This past Friday I was privileged to host an intimate colloquium at Pepperdine’s Malibu Beach House that brought together a wonderful mix of torts scholars, international law scholars, and practitioners to address the nexus between torts and the Alien Tort Statute. It was an eclectic group, including renown torts experts such as Third Restatement Reporter Michael Green, Allen Linden, Anthony Sebok, and Rick Cupp, seasoned practitioners such as Ken Starr and Bob Mittelstaedt (who just successfully argued the Chevron Bowoto case), and international law scholars such as Chimene Keitner, Bill Dodge, Trey Childress, and Naomi Goodno. What better way to spend a beautiful Malibu day in mid-December then talking with diverse experts about torts and the ATS, punctuated by beachfront meals, and literally walking with fellow intellectual travelers down the sand during a glorious California sunset.

What was particularly interesting about the discussion is just how much the torts scholars had to say about the Alien Tort Statute…

Why Richard Falk is Unqualified to be a UN Special Rapporteur

by Julian Ku

Richard Falk, an eminent (if rather senior) professor of international law and politics at Princetonwas expelled from Israel yesterday while he acting as the UN Human Rights Council’s special rapporteur for human rights in the Palestinian territories.  Falk was expelled by Israel because they believe his investigation, and indeed the UN Human Rights Council itself, is irredeemably biased against Israel.  This is probably true.  Falk has made no bones about his views on Israel’s relationship with the Palestinians, even recently describing Israel’s actions toward Gaza a “crime against humanity.”  So Falk is not the sober, respected, neutral investigator that his title (“special rapporteur”) suggests he should be.  

But the problem is not really with Falk or his bias against Israel.  Rather, the problem is that he is basically unqualified to be a human rights investigator.  

Scott Malcomson Reviews Books on Humanitarianism and Intervention

by Kenneth Anderson

Scott Malcomson, an editor on foreign affairs at the New York Times Magazine, as well as being one of the Really Smart People I Know, had a short, interesting review in the NYT book review, on Sunday, December 14, 2008 of books on humanitarianism and intervention, “When To Intervene.”

Milanovic on the Genocide Convention

by Kevin Jon Heller

My friend (and OJ alum) Marko Milanovic has a superb post today on the new EJIL: Talk! about the strengths and weaknesses of the Genocide Convention.  Here is a taste:

Before we ask ourselves whether the Convention does what it was supposed to do, we need to look at what it actually says. And it says very, very little. The definition of the crime of genocide requires the specific intent to (physically or biologically) destroy a national, ethnic, racial, or religious group, this enumeration of protected groups being exhaustive. The narrowness of this definition is such that it excludes the vast majority of acts that most lawyers, and by far the majority of the general public, think of as genocide.

I never cease to be amazed, for example, with the frequency with which the Extraordinary Chambers in the Courts of Cambodia (ECCC) are called the Cambodia Genocide Tribunal – even though the only crime for which the ECCC defendants are NOT being prosecuted for is genocide, because the killing of millions of ethnic Khmer by other ethnic Khmer on account of their social status does not meet the definition in Article II of the Convention. Bosnia? Not genocide, except in one municipality, Srebrenica, itself a borderline case. Darfur? Probably not really a genocide – see, for example, the Report of the UN Commission of Inquiry, paras. 508-512.

The entire post is well worth a read — as is an earlier post by friend-of-OJ Dapo Akande on whether human-rights treaties apply in times of war.  If Marko and Dapo’s posts are any indication, EJIL: Talk! will soon be a force to be reckoned with.

Conference Announcement: Second Annual National Security Law Junior Faculty Workshop

by Chris Borgen

Professor Bobby Chesney of Wake Forest (and the National Security Advisors blog) sends along the following:

The 2nd annual National Security Law Junior Faculty Workshop will take place in Austin on March 12 and 13, 2009.  This event is unique in that it combines discussion of works-in-progress with training in the law of war provided by instructors from the International Committee of the Red Cross and the US Army JAG School.  The deadline for submitting a paper or abstract for consideration is January 15th.  The full details, including a link to the event announcement, are posted here.  Note that you do not have to submit a paper, let alone have your paper selected, in order to attend the event.  Questions should be submitted to Bobby Chesney at rchesney [at] law [dot] utexas [dot] edu.

The Robert S. Strauss Center for International Security and Law of the University of Texas will host the event. This promises to be a fantastic conference, especially considering the participation of instructors from both the ICRC and the US Army JAG School.

Why I Am Advising Radovan Karadzic (Updated)

by Kevin Jon Heller

A number of readers have e-mailed to ask why, given my interest in all things ICTY, I have not said anything about the Karadzic case.  The answer is relatively simple: I have been serving for the past two months as one of Dr. Karadzic’s primary legal advisers, which raises a number of complicated issues vis-a-vis blogging.  On the one hand, the case raises a number of legal issues that I think would interest the readers of this blog.  On the other hand, I owe Dr. Karadzic a duty of confidentiality.  And on the still other hand, I do not want to be perceived as using this blog as a platform for my consulting work.  That’s a lot of hands, and they are obviously difficult to keep straight.

That said, I at least want to offer a few thoughts about why I have chosen to advise Dr. Karadzic.  That decision has met with considerable resistance.  Two examples: a scholar I deeply respect and have long considered a friend has essentially cut off all contact with me, and my involvement in the case was met during my few days at the Austrian Human Rights Film Festival with either stony silence or (more commonly) open hostility.  It hasn’t been a pleasant response — so why do I do it?

There are many answers…

Sundays with Stendhal 8: Social Etiquette in the Salons of Paris, 1830

by Kenneth Anderson

So long as you did not speak lightly of God, or of the clergy, or of the King, or of the men in power, or of the artists patronised by the court, or of anything established; so long as you did not say anything good of Berenger, or of the opposition press, or of Voltaire, or of Rousseau, or of anything that allowed itself the liberty of a little freedom of speech; so long, above all, as you did not talk politics, you could freely discuss anything you pleased.

(The Red and the Black, Part II, Chapter 34, “The Hotel de La Mole.”)

Over 1 Million Served… and Counting

by Chris Borgen

According to Sitemeter we broke the one million visit mark this week. (However, I don’t think this metric includes all of you who read this site via a feed, e-mail, etc…)

We want to say thanks to all our readers, old and new, steady and occasional.  We will keep trying to make this site as user friendly, useful, and interesting as possible and, as always, your thoughts and suggestions are welcome as we aim to improve Opinio Juris for the next million visits.

Thank you!

Chinese Burlesque, Magazine Covers, and Treaty Interpretation

by Chris Borgen

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How am I going to tie these together, you ask? Just watch…

Foreign Policy Passport reports the following:

The editors at MaxPlanckForschung, flagship journal of Germany’s Max Planck Institute, got a little more than they bargained for with an example of “classical” Chinese calligraphy they used on the cover of their latest issue. The idea was to evoke an image of China, which was the focus of the issue. But instead of arousing interest in cutting-edge science, Chinese readers discovered the calligraphy was titillating in other ways.

Language Log provides the following rough translation…

David Cole on Detention in the Boston Review, and Joanne Mariner, Robert Chesney and Eric Posner Respond

by Kenneth Anderson

Treat this as the latest round in the Guantanamo discussion …  David Cole writes in the Boston Review on detention.  Joanne Mariner of Human Rights Watch, Bobby Chesney and Eric Posner all respond online there.  But if it’s sensible and legal now, why wasn’t it sensible and legal during the Bush years?  Is this the same David Cole who appeared on panels with me over the last few years and who didn’t seem in those years to have any daylight between him and the Center for Constitutional Rights, Human Rights Watch, or Human Rights First on the principle of try-or-release?  And certainly no sympathetic words for the views of the several co-panelists who said, well, you know, some of these people you really might not want to release no matter what, and by the way there are doctrines under the laws of war that allow detention … Eric says he hasn’t been through David’s stuff closely enough to be able to say whether this is a change of mind.  Well, I’m through a re-read of three of David Cole’s last four books, the ones that just happen to be sitting on my shelves.  I suppose it’s possible that after wading my way backwards through all this stuff, I’ll decide differently and conclude that all along these books held a theory of administrative detention in wartime applicable to various Bad Non-Innocent Shepherds at Guantanamo, etc., etc. and I was just not bright enough to see it.  Maybe, and this is not definitive, it’s just a blog post, that’s all (and if I conclude I’m wrong about this, I’ll come back and post a note here to that effect, to avoid the ‘memory hole of the public intellectuals’).  But at this point it is hard for me to see how this isn’t walking back the dog now that the Obama folks are about to take the reins and with no other reason or justification.  And it is equally hard for me to see that this isn’t what a law partner once long ago told me we were going to do after having given some spectacularly bad advice: “Look ’em in the eye and say, consistent with our earlier advice to x, not x.”

A Festschrift for Michael Reisman

by Duncan Hollis

They’re not calling it that, but on April 24, 2009, Yale Law School is sponsoring a conference, Realistic Idealism in International Law, in honor of international law-giant W. Michael Reisman.  Here’s an excerpt from the conference announcement:

Professor Reisman is the Myres S. McDougal Professor of International Law at Yale Law School, where he has been on the faculty since 1965. He has been a visiting professor in Tokyo, Hong Kong, Berlin, Basel, Paris, and Geneva. He is a Fellow of the World Academy of Art and Science and a former member of its Executive Council. From 1992-1995, he served as a member and subsequently chairman of the Inter-American Commission on Human Rights. He is the President of the Arbitration Tribunal of the Bank for International Settlements and has been elected to the Institut de Droit International. In addition to being a world-renowned scholar, Professor Reisman is an active practitioner, serving as an arbitrator in countless public international and investor-state arbitrations and as counsel in other arbitrations and in cases before the International Court of Justice.

Professor Reisman has published widely in the area of international law and jurisprudence. His publications include hundreds of articles and more than twenty books, the most recent of which are Foreign Investment Disputes: Cases, Materials and Commentary (with Bishop and Crawford); and International Law in Contemporary Perspective (with Arsanjani, Wiessner and Westerman). .  . The panel discussions are free and open to the public. For further information about the program, please see the conference agenda . . . .

Scheduled speakers include Yale Law Dean Harold Koh and ICJ President Rosalyn Higgins (who will both deliver keynote addresses) as well as former ECHR President Luzius Wildhaber, Richard Falk, and Jan Paulsson, among others.  The panel topics include jurisprudence, use of force, trade and investment, and human rights.  The conference is being organized by Prof. Jacob Cogan of International Law Reporter fame, Mahnoush H. Arsanjani, Director of the Codification Division in the U.N. Office of Legal Affairs, and Professors Robert D. Sloane and Siegfried Wiessner.  It’s quite a line-up and I, for one, hope it will become an actual festschrift with written contributions to accompany the day’s events.

LSE Seeks International Law Replacement for Professor Christopher Greenwood

by Kenneth Anderson

As you probably know, the hugely distinguished Professor Christopher Greenwood of the LSE has joined the ICJ, thus occasioning the following job notice by the LSE (and many thanks to the great International Law Reports blog).  Below the fold … melancholy reflections on what it is like to hold to a methodology in international law that doesn’t especially think of it as law.

The Department of Law, a world-leading centre for research and teaching in legal studies and interdisciplinary approaches to law, seeks to appoint a new Professor of International Law, to fill the vacancy left by Professor Christopher Greenwood’s appointment to the International Court of Justice.

Applicants should have an outstanding international research reputation in public international law. The postholder will participate in teaching at undergraduate and postgraduate level and, in particular, contribute to the development of innovative postgraduate courses. In addition to research leadership, the successful applicant will be expected to take on administrative responsibilities in the Department and the School. This appointment will be from 1 September 2009, or as soon as possible thereafter.

Teaching Pedagogy, or, I Wore a Suit and Tie to Teach Class Every Day This Semester

by Kenneth Anderson

Classes have ended, exams just begun, and I’m feeling into the pedagogy of international law teaching and intellectually shallow, all at the same time … so, further to Professor Erik Jensen’s widely read (1748 SSRN downloads, which sure beats me), if not followed (abstract, in full:  “Law professors dress scruffily, and we need to do something about that”), admonition to better classroom dress by law professors, and further to my dean’s remarkably non-judgmental observation, some ten years ago (I’m slow to respond, as some editors have noticed over the years), that I had “single-handedly lowered dress standards” at our school, I embarked this term on wearing not just jacket and tie, but suit and tie, to each and every class.  As an experiment, to see if a 52 year old bald and paunchy law professor would get Great(er) Respect by looking professional for class.  (Good heavens, one of my fellow bloggers decided this merited a ‘featured post’?!)

Welcome to the EJIL: Talk! Blog

by Chris Borgen

The European Journal of International Law has started a blog EJIL:Talk!, which promises to be an influential addition to the international legal blogosphere.

In an introductory e-mail, JHH Weiler, the EJIL Editor in Chief wrote:

The decision to experiment with a blog – and an experiment it is – was decidedly not a bandwagon effect – they all have it, so should we. It is the result of serious reflection of the Editorial Board, with our Scientific Advisory Board, on the evolving relationship between traditional and digital forms of scholarship and publishing. In its first twenty years, EJIL from time to time made huge efforts to provide ‘services’ e.g. the now defunct service on decisions of the ECJ on matters of International Law or our running commentary on decisions of the WTO Appellate Body of importance to public international lawyers. That, for the most part, has become a redundant and futile exercise rendered such by the power of ‘search engines’ and the ubiquity of primary sources on the internet. EJIL also tried to be ‘topical’ by, e.g., trying to hold symposia on recent decisions of the ICJ, or an ILC Report, or certain ‘incidents’ as soon as possible after the event. In the old days a time lag of six to nine months was considered very topical. That has become laughable – our production process, even at its best, is a tortoise to the internet hare.

And yet, there is, we think, an EJIL sensibility – with, say, its panache for the theoretical article, for bringing in aggressively younger scholars, for its intellectually diverse modes of analysis, realism mixed with doctrine, a strong appeal to and interest in history, to mention but a few. (To some Europeans, too Americanized; to some Americans, too European – we take comfort in that debate …). If our new blog EJIL:Talk! is successful, it will enable us to effect a further change in the identity of EJIL itself: We will give increasing preference to articles which deal with the fundamentals, with First Things, which look at an ‘Incident’ or ‘decision of a Tribunal’ with a view to exploring wide systemic meaning; in short, to articles which we predict will have lasting value – that will be interesting four or five or more years after publication. EJIL:Talk! and EJIL may thus complement each other. Note – we hope it does not provoke just short off the cuff academic gossipmentary, but short, incisive, even well-researched pieces which should simply be thought of as a different genre of writing, not unlike the difference between an article and a book.

Our plan is to allow the members of our Scientific Advisory Board to host the blog on a rotating basis, with Dapo Akande serving as our inaugural guest editor.

We look forward to EJIL:Talk! ‘s contribution to the online discussion on international law!

My IBT Final Exam and a Few Comments on Teaching IBT

by Kenneth Anderson

In case anyone is interested, here is the text of my Fall 2008 final exam in International Business Transactions.  (It’s over at my much neglected home blog.)  I don’t think this was my greatest exam drafting exercise – I’ve done better in past years.  Actually, I don’t think it is very good at all – it doesn’t read very well and is too much professor in a hurry – here is one I like better from 2005 and another one that is also better from 2006.  The current one is not as good as those and is a little bit too much – well, a lot too much – stuffing issues in willy-nilly, without having pulled it together as a clever single thing based around a discrete set of parties.  This is done as a take home in which students have the full two weeks of exam period to do it, but a page limit of ten double spaced pages.  (Below the fold, I talk a little bit about my approach to IBT pedagogy.)

And Now for Some Good News – Malaria Vaccine for Children Seems to Work!

by Kenneth Anderson

I don’t imagine there is any reader of OJ who is not aware of the suffering and devastation caused by malaria.  So this is welcome news.

A vaccine against the parasitic disease malaria cut illnesses by more than half in field trials and could be safely given with other childhood inoculations, two studies have reported. The vaccine, which will begin a third and final phase of clinical trials early next year, could become the first to protect children from malaria, which kills nearly 1 million people worldwide every year.

Today, December 9, is International Anti-Corruption Day

by Kenneth Anderson

International Anti-Corruption Day is sanctioned by the UN as a day to increase awareness of corruption and its effects upon governance and public life.  I realize that today’s events in Chicago raise the possibilities of some heavy-handed irony – but actually, I’m pleased in a quite un-ironic way.  If one has to have the phenomenon of this day for this, and that day for that, well, anti-corruption efforts are pretty high on my list.  So I’m delighted with Patrick Fitzgerald’s G-Man raid this morning, and think it was a jolly good day for it.

More Plans in Search of a Hearing

by Deborah Pearlstein

Over the weekend, Stuart Taylor joined the cast of conservative legal commentators (see also Jack Goldsmith, Ben Wittes, Jack Goldsmith and Ben Wittes) offering advice to the incoming Obama Administration on how to right the legal ship of security and state. Taylor’s reasonable jumping-off point: the actual security threats against the United States…

Scott Horton Posts Six Questions for Mary Ellen O’Connell

by Peggy McGuinness

Over at the Harper’s blog, Scott Horton has posted a Q& A with Mary Ellen O’Connell about her book “The Power & Purpose of International Law.”  (OJ hosted a discussion of Professor O’Connell’s book last month, accessible here.)   Among the interesting exchanges is this discussion of the U.S. relationship to the ICJ and rejoining the Optional Protocol of the Vienna Convention on Consular Relations:

Assuming that the Obama Administration wants to begin to move the nation back into compliance with its international law obligations and smooth over the ruptures surrounding the ICJ, what can you suggest as a first step?

America should recommit to ICJ enforcement of the Vienna Convention on Consular Relations. Secretary Rice pulled us out of the Protocol providing for that enforcement. All Americans should want this because it is the means of assuring that the U.S. embassy will be notified if we are arrested in a foreign country. Rice threw away America’s right to enforce the Convention in the ICJ, which is astounding since the United States was the first country to use the Protocol. We won a unanimous ICJ order to Iran to release our hostages in 1979. That order underpinned the successful campaign that eventually led to the safe homecoming of the hostages and the peaceful resolution of billions of dollars of claims.

Bellinger fully supported leaving the Protocol because the United States has lost cases at the ICJ over our own treatment of foreigners arrested in this country. We deserved to lose those cases. We do a poor job of informing non-Americans of their right to contact their consul or embassy. We could easily add a line to the Miranda warnings: “If you are not a U.S. national, you may have the right to have your consul notified.” Rather than doing this or otherwise improving our compliance, we refuse to be answerable to the ICJ. Leaving the Protocol was characterized by the same hubris that tainted so many Bush Administration foreign policy decisions.

Elihu Root, Teddy Roosevelt’s Secretary of State, helped draft the statute of the International Court of Justice. He believed in courts—all courts—as the sensible way to resolve disputes. He was a pragmatist, as is our new president. I believe a return to the Protocol could be an important first step back to acceptance of the ICJ’s compulsory jurisdiction, which we rejected when we lost another case we deserved to lose in the 1980s, for mining the harbors of Nicaragua and other unlawful acts.

The Constitutional Limits of Counter-Terrorism Cooperation

by Chris Borgen

The ACLU has filed a habeas corpus petition on behalf of a U.S. citizen who, as of the time of filing, had been held by the United Arab Emirates for about three months without charges. And, beyond the issue of unlawful detention, there are now also allegations that the UAE Security Services have used torture to extract a false confession. 

Did the UAE hold this man at the request of (or with a knowing nod from) the U.S. because the FBI wasn’t able to build a case that would be convincing before a U.S. court?   While rendition cases cover instances in which the U.S. has physical custody of a non-U.S. person and chooses to turn that person over to third-party governments for interrogation, in this case, the U.S. did not have custody over a U.S. citizen, but may have shared information/allegations/suspicions with a foreign government which may have persuaded that government to take the U.S. citizen into custody.  At issue, then, is the tension between the techniques of counter-terrorism cooperation and Constitutional violation…

[UPDATE: A few edits were made after initial posting to point out that the U.S. citizen has been moved from the custody of the UAE Security Service and to a prison in Abu Dhabi.]

Berkeley Tries to Censor Boalt

by Roger Alford

Later today the Berkeley City Council will entertain measures to censor Boalt Hall:

Berkeley’s City Council will delve into national policy again next week when it votes whether to demand the United States charge Berkeley resident and former Bush adviser John Yoo with war crimes…. The five measures attacking Yoo were drafted by the city’s Peace and Justice Commission, the same group that recommended that the city tell the Marines they were “unwelcome intruders.” The City Council will vote Monday on the five measures. In addition to demanding that Yoo be charged with war crimes, the city will decide whether to order Boalt to offer alternatives to Yoo’s courses, so no student is forced to take a class from him if they don’t want to. Yoo has taught constitutional and international law at Boalt since 1993.

A copy of the proposal is available here. Boalt law students have expressed outrage at the City Council’s proposal:

While it is difficult to imagine a dumber idea than attempting to go head-to-head with the United States Marine Corps, at least the City’s behavior in that fiasco was (relatively) harmless…. This resolution, however, is actually dangerous. Freedom of speech and liberal ideals cannot be squared with the idea that a city government may publicly disapprove of a political point of view by taking affirmative steps to sequester it. The use of governmental power to suppress controversial (even dangerous) viewpoints is a neo-conservative tactic more befitting Karl Rove than a local municipality. The City is taking exactly the kind of reactionary moral-low ground that the “birthplace of the Free Speech Movement” is supposed to stand against. Berkeley’s mindset here is cancerous, it is dangerous, it is abusive, and (from this liberal’s point of view) it is embarrassing.

Of course, the City Council has no jurisdictional authority to regulate Boalt’s teaching policies, and even if it did Boalt is already doing what the City Council is demanding. A Boalt spokeswoman has stated that “We respect the politics of Berkeley, home of the free speech movement, and their right to debate this issue. They can pass this measure, but it won’t have any bearing on the university’s policy.” Thus, I rather doubt that the City Council’s proposal is actually dangerous, but it most certainly is embarrassing to the city that purportedly is the home to free speech. If Yoo is convicted of a crime that is one thing, but as things stand he is protected by academic freedom. The Yoo case represents a true test of a university’s commitment to controversial, even dangerous, speech. Boalt is doing the controversial but correct thing in protecting him from these sort of tactics.

UPDATE: The Berkeley City Council took the far more tenable path of encouraging the federal government to take action against Yoo and declining any effort to set policy for Boalt. Story here and official video and agenda of the hearing here.

Sundays with Stendhal 7: The Air of a Thinker

by Kenneth Anderson

After several months of application kept up at every moment, Julien still had the air of a thinker. His way of moving his eyes and opening his lips did not reveal an implicit faith ready to believe everything and to uphold everything, even by martyrdom. It was with anger that Julien saw himself surpassed in this respect by the most boorish peasants. They had good reasons for not having the air of thinkers.

(The Red and the Black, Part One, Chapter 26, “The World, or What the Rich Lack.”  Special edition of SwS for my nephew James Knabe, finishing up his first semester as a grad student in the English department at Yale.)

Why Piracy Is Not Terrorism

by Kevin Jon Heller

Douglas Burgess, Jr., has an editorial in today’s New York Times arguing that piracy should be considered terrorism in order to facilitate its prosecution.  It’s an interesting piece, but I have to take issue with the basic premise of his argument:

Are pirates a species of terrorist? In short, yes. The same definition of pirates as hostis humani generis could also be applied to international organized terrorism. Both crimes involve bands of brigands that divorce themselves from their nation-states and form extraterritorial enclaves; both aim at civilians; both involve acts of homicide and destruction, as the United Nations Convention on the High Seas stipulates, “for private ends.”

In short, no.  The defining feature of terrorism is precisely that it is committed not for private ends, but to intimidate a civilian population or to influence government policy…

Liberal Internationalism v. Transnational Progressivism, or When Will the US Join the ICC?

by Peter Spiro

John Fonte had this piece in the National Review just before the election on the Obama’s likely posture to international law and international institutions.  It very perceptively and succinctly describes the difference between liberal internationalists (think just about everybody before Bush, with the US looking to lead the rest of the world to enlightenment, along with anyone associated with the Truman Project) and transnational progressivism (those who believe international law and/or nonstate actors have autonomous power beyond that of states). 

So, who wins out in the Obama Administration, and what difference does it make? . . .

Jonathan Adler Raises Questions About Key Democrat Views on Interrogation Techniques

by Kenneth Anderson

Jonathan Adler, over at Volokh, cites to Glenn Greenwald on the possibility that key Congressional Democrats, starting with Senator Feinstein, may not be moving to require that the CIA conform to DOD standards on interrogation.  Here is the post.  

Are key Senate Democrats moderating their unequivocal opposition to the use of torture or less-severe coercive interrogation techniques? Glenn Greenwald thinks so. In particular, he notes that Senators Dianne Feinstein (who is the incoming Senate Intelligence Chair) and Ron Wyden had previously insisted that the CIA comply with the Army Field Manual when conducting interrogations, and even co-sponsored legislation to write this limitation into law. Now, however, both are indicating a more flexible stance.

Does Hillary Clinton Believe in International Law?

by Kevin Jon Heller

Not according to Stephen Zunes, a Middle East expert at the University of San Francisco.  He recently posted an essay on Alternet that should give progressive international lawyers and scholars pause.  Here is the introduction:

For those hoping for a dramatic change in U.S. foreign policy under an Obama administration — particularly regarding human rights, international law, and respect for international institutions — the appointment of Hillary Clinton as Secretary of State is a bitter disappointment.  Indeed, Senator Clinton has more often than not sided with the Bush administration against fellow Democrats on key issues regarding America’s international legal obligations, particularly international humanitarian law…

Eric Holder and the ATS

by Duncan Hollis

Plaintiffs will apparently appeal yesterday’s jury verdict in the Chevron ATS case. In the meantime, as we contemplate a new Administration, it’s worth considering, how, if at all, USG views will shift with respect to litigation under the Alien Tort Claims Act (a.k.a. the Alien Tort Statute (ATS)). Although he offered his views in full advocacy mode for his client, Chiquita, it’s worth noting that Attorney General-nominee Eric Holder’s characterization of ATS doctrine suggests that he may not be a big fan of more expansive readings of that statute. Here’s what he had to say (minus footnotes) in a brief filed in December 2007 in Doe v. Chiquita Brands International (in which plaintiffs sought to hold Chiquita liable for Colombian civilian deaths perpetuated by paramilitary groups that Chiquita had made payments to for purposes of continuing operations):

Even if plaintiffs could make the allegations necessary to sustain a claim of state action, the claim would be equivalent to an assertion that the Colombian government was complicit in the summary executions of its own citizens by terrorist organizations. Such a claim would present a nonjusticiable “political question” and should be dismissed because it “challenges the official acts of an existing government in a region where diplomacy is delicate and U.S. interests are great.” Corrie v. Caterpillar, Inc., 403 F. Supp. 2d 1019, 1032 (W.D. Wa. 2005), aff’d, No. 05-36210 (9th Cir. Sept. 17, 2007), pet. for reh’g pending (filed Oct. 9, 2007). . . . A finding of state action in this case would directly contradict the foreign policy position of the United States, which sees Colombia as a staunch ally in the fight against terrorism, and would thus constitute unwarranted judicial interference in the foreign relations of the United States. For years, the United States has consistently provided political, economic, and military support to the Colombian government, including support to Colombia’s efforts to disarm and prosecute paramilitaries, and to provide reparations to their victims. A judicial finding of “complicity” between Colombia and the AUC in this case would be at odds with this policy and create the potential for disparate pronouncements by the executive and the judiciary on Colombia’s terrorism policies. See Baker, 369 U.S. at 217.

Crossborder Remittances and International Development Finance

by Kenneth Anderson

Crossborder remittance payments by immigrant workers to their relatives back home are an increasingly important capital movement in the world, especially for poor people.  The United States, for example, has sometimes treated remittance payments as part of its calculations of international aid public and private.  It has only recently started to receive academic attention, however.  My colleague Ezra Rosser has just published a new paper on the subject, Immigrant Remittances, in the Connecticut Law Review, up on SSRN.

Another colleague of mine, Heather Hughes, has produced a very interesting article on the securitization of remittance flows.  Securitization is a suspect category these days, for obvious reasons, but at some point and in some suitably chastened form it will make a comeback.  The question is whether securitization of such flows as remittances make sense.  Heather points out that some developing country banks have already done securitizations of such flows – I don’t know where such financings stand in the current crisis, however.

“The Effective Strategy”

by Deborah Pearlstein

No less an authoritative source than the Wall Street Journal reports that outgoing Homeland Security Secretary Michael Chertoff may be rethinking his views on what makes for effective counterterrorism strategy.

The Bush administration’s point man in protecting America against terrorism says U.S. investments in safety should not be restricted to airport screening machines or border fences. Michael Chertoff says the U.S. also should spend more on foreign-aid programs, scholarships for foreign students and other tools of so-called soft power. The idea isn’t new, but the messenger is. Mr. Chertoff, secretary of the Department of Homeland Security since February 2005, heads an agency known for its crackdowns on immigration and the ratcheting-up of passenger screening at airports. He spent the first three years of his tenure working to integrate the 22 agencies and roughly 200,000 employees that make up the department, which was formed after the Sept. 11, 2001, attacks. Mr. Chertoff said he came to his views over the past six months or so, when he finally had time to think about big-picture challenges. Now, he said, “a lasting victory in the safeguarding of the country” can be achieved only by marrying traditional security with winning “a contest of ideas, and a battle for the allegiance of men and women around the world.” …. “I don’t believe you can placate your way out of threat by terrorism,” Mr. Chertoff said. But at the same time, “if you can affect the recruiting and the sympathy and the pool of people in which terrorists recruit, from a long-term standpoint, that’s the effective strategy.”

Still seems like a long-shot for getting that life-tenure federal judgeship back.

Judicial Deference to the Executive Branch in Winter v. NRDC

by Roger Alford

Last month the Supreme Court rendered its latest installment on the issue of judicial supervision of national security. Winter v. NRDC has received surprisingly little attention, but it strikes me as an important example of judicial deference to the Executive Branch in military affairs.

The deference accorded to the Executive Branch in Winter was “great.” The actual review by the Court of the military’s declarations was perfunctory, essentially one sentence concluding that “[w]e accept your assertions.” No second guessing, no clarification.

Balanced against these military considerations were “serious” interests in protecting the NRDC’s ability to study and observe whales. But according to the Court the question was not even close. Unlike Boumediene, where the Court was at pains to highlight the fundamental nature of the competing interest—unlawful and arbitrary detention—the NRDC’s concerns fared poorly. So too did the interests of those who favor strong judicial supervision of the exercise of military power.

Moreover, the Executive actions appeared to be plainly inconsistent with NEPA—the federal statutory requirement that the military conduct an environmental impact statement (EIS) prior to rather than after engaging in the military exercises. Nonetheless, the Court easily rejected NRDC’s request for preliminary injunctive relief. Without even mentioning Youngstown, the Court ruled that if the Executive asserts military necessity to take action inconsistent with statutory obligations, so be it.

Perhaps Winter will only be a footnote in the extensive commentary on executive power in the age of Boumediene. But it bears emphasizing that where the Executive asserts that the military interest is great and the competing interest is of a “serious” but lesser value, then Winter may be the norm rather than the exception. Is, for example, the balancing of interests with intelligence surveillance closer to Winter or Boumediene?

Chevron Wins ATS Case. Will Corporations Fight, Not Settle?

by Peter Spiro

Chevron wins a big Alien Tort Statute verdict in a case involving its alleged complicity in killings by Nigerian security forces. This is no doubt an important case (though probably not as important at Andrew McCarthy thinks it is — see “Sovereignty, Vindicated” over at NRO).  On the heels of a lower-profile case last year involving Drummond that also resulted in a jury finding of no liability, it’s only the second ATS claim against a corporation to go to trial.  The verdict doesn’t affect the law, but you’d have to think that it will embolden other corporations to fight ATS claims rather than settle them.

One might also wonder if the changed economic climate will subtly affect the landscape. Juries may be a lot less inclined to sock US companies with big judgments (at least not to the benefit of foreigners) when everyone knows how close they all are to the brink. Is the golden age of the ATS starting to dim?

The Lawprof Threat to Good Government

by Peter Spiro

Peter Raven-Hansen has a review of Jack Goldsmith’s The Terror Presidency in the latest American Journal of International Law which includes some thoughts (after the jump) on law professors as top government lawyers.  His basic line, with John Yoo as the example: better not to use a perch in the government to validate your academic theories.  That has to be right, at the same time that . . .

Sudan’s “Peace” Efforts in Darfur

by Kevin Jon Heller

An association of 15 human-rights groups, including Human Rights Watch, Human Rights First, and the Save Darfur Coalition, released a devastating report today on the Sudanese government’s cynical — and mendacious — PR campaign to convince the international community that it is committed to bringing peace to Darfur.  Here is a snippet of the executive summary:

This report focuses on four dimensions of the crisis in Darfur: continuing insecurity for civilians, the humanitarian situation, justice and accountability and deployment of the African Union-United Nations Hybrid Operation in Darfur (UNAMID). The report highlights the distance between the government of Sudan’s rhetoric and the reality
in each of these areas.

Only in relation to UNAMID has there been any notable progress, and even there the government of Sudan’s commitments have yet to be tested in light of its long history of broken promises. The humanitarian situation and insecurity have deteriorated significantly since Sudan began its bid for a suspension of the ICC’s investigation.

I hope readers will take a look at the entire report.

P.S. I also want to acknowledge and congratulate Human Rights Watch for winning (along with six individuals, including Louise Arbour and the late Benazir Bhutto) the 2008 United Nations Prize for Human Rights.  Conservative commentators can mock HRW all they want — exhibiting precisely the ideological tendentiousness that they erroneously attribute to the non-partisan organization — but there is no question that the world is a better place because of HRW’s tireless efforts.

Ordinary Darfuris Opposed to Prosecuting Rebels

by Kevin Jon Heller

The Institute for War & Peace Reporting has a must-read article today about how ordinary Darfuris view the OTP’s decision to seek arrest warrants for the rebel leaders allegedly responsible for killing 12 peacekeepers in 2007.  According to the article — and all the usual caveats about anecdotal evidence apply — the response is uniformly negative:

Yasir, an IDP (internally displaced person) from the Zalingei camp, said people are confused by the application for indictments against rebels.

“Violence against civilians is ongoing almost daily. The only way to stop that is to work faster in [the] al-Bashir case, not to announce another case. People are listening to news day after day to hear the next step in al-Bashir case,” he said.

Darfuri lawyer Khalil Tukras, working in El Fasher for a human rights monitoring NGO, agrees that the request is confusing.

“People [are not concerned about] indictments of rebels… More important is indictments for government people – who committed higher levels of human rights violations. If you measure the violations by the government, and the rebels, there is no comparison,” he said.

Be Really Careful What You Say About Banking Stability … at Least in Latvia

by Kenneth Anderson

Remarkable story in today’s Wall Street Journal, front page, December 1, 2008, about a Latvian economist arrested and held for several days – not finally charged – for expressing pessimistic sentiment about the stability of the Latvian financial system:


How to Combat a Banking Crisis: First, Round Up

the Pessimists


Latvian Agents Detain a Gloomy Economist; ‘It Is a Form of Deterrence’

Kenya and the ICC

by Kevin Jon Heller

Violence in Kenya following the disputed 2007 elections left more than 1,300 people dead and more than 500,000 internally displaced.  Last month, Kenya’s Commission of Inquiry into Post-Election Violence released a 527-page report — the Waki Report — that concluded much of the violence was planned and organized by members of Kenya’s security agencies, business leaders, politicians, and government officials.  The report recommended creating no later than February 28, 2009, “[a] special tribunal, to be known as the Special Tribunal for Kenya… that will sit within the territorial boundaries of the Republic of Kenya and seek accountability against persons bearing the greatest responsibility for crimes, particularly crimes against humanity, relating to the 2007 General Elections in Kenya.”  Actually, “recommended” isn’t the right word: to let the Kenyan government know that it meant business, the Commission of Inquiry also placed the names of suspected perpetrators into a sealed envelope, gave that envelope to Kofi Annan, and instructed him to pass the envelope along to the ICC Prosecutor if the Special Tribunal is not created by the deadline.  The identities of the suspects are unknown, but news reports indicate that the envelope contains the names of at least six Cabinet Ministers and five MPs.

Kenya’s leading political parties responded quickly and predictably to the Waki Report.  Prime Minister Raila Odinga’s Orange Democratic Movement (ODM) dismissed the report “in toto,” insisting that it is “full of incurable errors.”  And President Kibaki’s Party of National Unity (PNU) described the report as “shoddy and shallow.”

Enter the ICC…

On Pre-Crimes and Panopticons

by Chris Borgen

Going forward I need to remember that if I’m ever looking for a quick topic about which to blog, I just need to take a look at the latest developments from the UK on surveillance. First there was using ubiquitous surveillance to make art.  Now there’s surveillance imitating art… specifically The Minority Report, a short story by Philip K. Dick (and subsequently a film). As the Daily Mail explains:

CCTV [closed-circuit TV] cameras which can ‘predict’ if a crime is about to take place are being introduced on Britain’s streets.

The cameras can alert operators to suspicious behaviour, such as loitering and unusually slow walking. Anyone spotted could then have to explain their behaviour to a police officer.

The move has been compared to the Tom Cruise science-fiction film Minority Report, in which people are arrested before they commit planned offences.

(A hat tip to Futurismic for spotting this article.)

Further on, the article states:

Computers are programmed to analyse the movements of people or vehicles in the camera frame. If someone is seen lurking in a particular area, the computer will send out an alarm to a CCTV operator.

The operator will then check the image and – if concerned – ring the police. The aim is to stop crimes before they are committed. If a vehicle is moving too fast or slow – indicating joyriding or kerb-crawling, for example – a similar alert could be given.

Councillor Jason Fazackarley of Portsmouth Council said: ‘It’s the 21st century equivalent of a nightwatchman, but unlike a night-watchman it never blinks, it never takes a break and it never gets bored.’

Of course this is supposed to be reassuring and, as one commentor put it, she would not mind such a system if she was surrounded by a hostile street gang. She assumed that if she was out with a bunch of her female friends, she would not be similarly targeted. The underlying issue, of course, is which activities or groups look suspicious.

The main question, though, is whether or not this is inching toward a panopticon society…