Archive for
February, 2009

Glennon Pans Baker-Christopher War Powers Report

by Peter Spiro

Michael Glennon doesn’t pull any punches in the latest AJIL (also available on SSRN here) in going after the report of the Miller Center’s National War Powers Commission. The report advances an “illusory solution to a nonproblem”, with “baffling” and “flatly unconstitutional” proposals for reform.  The piece is particularly scornful of the panel’s call to formalize a presidential free pass for anything less than “significant armed conflicts,” defined as those expected to last less than a week.

I agree that this Baker-Christopher effort doesn’t add much to the mix (almost always the case these days with blue-ribbon commissions, which seem a throwback to another, more elite-driven era).  There’s not going to be any “War Powers Consultation Act of 2009.”  But it doesn’t seem to me that any other legislative fix for the War Powers Resolution — including one supported by Glennon — is either probable or desirable.

The Resolution itself is a dead letter, or at least its 60-day termination provision is.  (One could probably apply Mike’s theory of desuetude in the context of IL and the use of force to reach this result.)  The division of war power works itself out in an accretive fashion through practice.  I’m sure we’ll get more of the same from this Administration — not in a bad way, mind you, and no doubt accompanied by less bluster — as the current occupant of the White House protectss time-tested institutional prerogatives established by his predecessors.  That includes a free pass for minor engagements, whether they last a week or longer.

The one change we might witness — one that Glennon would welcome — would be greater judicial participation in the process.  The courts are getting more confident in the realm of national security, and they will be less concerned about screwing things up.  I wouldn’t be surprised if at some point we get an opinion like Judge Green’s in Dellums that actually crosses the Rubicon and delivers a merits opinion.  But the courts would almost surely stay in line with the practice, which would translate into an affirmation of significant presidential discretion.  Who knows, we might even get a court to declare the WPR unconstitutional, and to end a 35-year-old distraction.

Symposium on Justice John Paul Stevens at UC Davis

by Chris Borgen

On Friday, March 6, 2009, the University of California, Davis, School of Law will host its annual Law Review Symposium. This year’s symposium will focus on the Honorable John Paul Stevens, a subject which should be of great interest to many readers of this blog. Speakers include IntLawGrrls‘ Diane Amann (a former Stevens clerk) speaking on the Equality panel and our our Deborah Pearlstein (also a former Stevens clerk) speaking on the Security panel. Here’s the line-up:

Opening Remarks

Kevin R. Johnson
Dean, University of California, Davis, School of Law

John Paul Stevens
U.S. Supreme Court Justice (videotaped message)



David F. Levi (moderator)
Dean, Duke University School of Law
Former U.S. District Judge, Eastern District of California
Former U.S. Attorney, Eastern District of California
Former Adjunct Professor of Law, University of California, Davis, School of Law

Jeffrey L. Fisher
Associate Professor of Law, Stanford Law School
Co-director, Supreme Court Litigation Clinic, Stanford Law School

Jamal Greene
Associate Professor of Law, Columbia Law School

Linda Greenhouse
Knight Distinguished Journalist in Residence and Joseph M. Goldstein Senior Fellow in Law, Yale Law School
Former Supreme Court correspondent, The New York Times

Elisabeth Semel
Clinical Professor of Law, Director, Death Penalty Clinic, University of California, Berkeley, School of Law



Cruz Reynoso (moderator)
Boochever and Bird Professor of Law Emeritus, University of California, Davis, School of Law
Former Justice, California Supreme Court
Former Vice Chair, U.S. Commission on Civil Rights

Diane Marie Amann
Professor of Law and Director, California International Law Center at King Hall, University of California, Davis, School of Law

Teresa Wynn Roseborough
Chief Litigation Counsel, MetLife, New York
Former U.S. Deputy Assistant Attorney General

Andrew Siegel
Associate Professor of Law, Seattle University School of Law



Kenneth A. Manaster (moderator)
Professor of Law, Santa Clara University School of Law
Author, Illinois Justice: The Scandal of 1969 and the Rise of John Paul Stevens (2001)

Daniel A. Farber
Sho Sato Professor of Law and Director, Environmental Law Program,
University of California, Berkeley, School of Law

Eugene R. Fidell
Florence Rogatz Visiting Lecturer in Law, Yale Law School
President, National Institute of Military Justic

Deborah N. Pearlstein
Associate Research Scholar, Woodrow Wilson School for Public & International Affairs, Princeton University
Former Director, Law & Security Program, Human Rights First

Kathryn Watts
Assistant Professor of Law, University of Washington School of Law

Chatham House Event on Africa’s New Human Rights Court

by Kevin Jon Heller

My friend Sonya Sceats at Chatham House has asked me to announce the following event:

International Law Discussion Group
Monday 23 March 2009 17:30 to 19:00
Location: Chatham House, London

Speakers include:

Judge Bernard Ngoepe, African Court on Human and Peoples Rights;
Sanji Monageng, Chairperson of the African Commission on Human and Peoples’ Rights;
Nobuntu Mbelle, representative of civil society
Chair: Lord Steyn

Against the backdrop of human tragedies in many countries of the continent, a new pan-African human rights court is about to open for business.

The advent of the African Court on Human and Peoples’ Rights marks the third instalment in efforts since the Second World War to create regional human rights courts. This new Court innovates in important ways, including its ability to enforce socio-economic and collective or ‘group’ rights.

On the eve of its first cases, this event aims to introduce the Court to a wider audience and explore the opportunities and many challenges it faces.

Chatham House will be launching a new briefing paper at this event by Sonya Sceats, Associate Fellow, International Law. The briefing paper is called “Africa’s New Human Rights Court: Whistling in the Wind?” and will be available on the Chatham House website following the event.

To register please email Irum Khan-Lodhi stating your name, affiliation and phone number: ikhan-lodhi2 [at] chathamhouse [dot] org [dot] uk

It sounds like a remarkable event.  I hope our readers in the London area will attend!

Obama Administration Will Avoid the Enemy Combatant Question

by Julian Ku

I’ve been critical of the Obama Administration’s deceptive approach to war-on-terrorism legal issues (trash your predecessor, but endorse some of his key policies).  But I don’t have any real criticism of its latest decision to avoid the legal fight over the power to detain enemy combatants in the U.S. 

The Justice Department, in an abrupt change in policy from the Bush administration, is preparing to bring terrorism-related charges against a man identified as an operative of Al Qaeda who has been held in a military brig for more than five years, government officials said Thursday.

The charges would move the case of the only enemy combatant to be held on American soil, Ali Saleh Kahlah al-Marri, into a civilian criminal court. The Bush administration had argued that he could be held indefinitely without being charged.

This is a smart move, in my humble opinion, because it is far from clear that they could win this fight in the U.S. Supreme Court.  The Bush Administration barely prevailed in Hamdi.   Indeed, this strategy preserves this power to detain enemy combatants t some later date without actually having to defend this argument in court (and possibly lose it).  Is this a bit tricky and sly? Yes, but that is not necessarily a bad thing.

State Department Issues 2008 Human Rights Report

by Peggy McGuinness

Yesterday, the U.S. State Department released the 2008 Country Reports on Human Rights Practices — colloquially referred to as the Annual Human Rights Report.  As a matter of law, it is a report by the State Department to the United States Congress.  The mandate grew from a requirement of congressional review of foreign assistance to a more comprehensive summary of the U.S. government’s view of human rights practices around the world.  As a matter of practice, the report plays a major role in bilateral and multilateral human rights policy for the U.S.; the release of the report can mark the beginning of tense dialogues (public and private) between the U.S. and the governments that come under heavy criticism.  And, the factual findings of the report play an important role in judicial determination of human rights claims (in particular, claims for asylum) in U.S. courts.

Email Subscriptions to Opinio Juris

by Peggy McGuinness

Following our recent switch to a new server, we have also changed our email subscription service at Opinio Juris.  On the lower right toolbar you will find a widget under “register/logon/contact” that will permit you to “sign up for email alerts and updates.”  The email service by Feedburner will then give you the option to sign up for an email alert for each new post or for a daily digest of posts.  Thanks to all who have provided feedback on the site.  Keep the comments coming!

OUP/Opinio Juris Book Club: Richard Gardiner on Treaty Interpretation

by Duncan Hollis

I wanted to flag for readers an on-line discussion that we are planning for next Monday-Wednesday, March 2-4.  We will be pleased to host Richard Gardiner (University College London) for a discussion of his book, Treaty Interpretation.  In addition to comments by the regular contributors, we will have several distinguished guest bloggers, all of whom know a thing or two about treaties:  Isabelle van Damme (Clare College, Cambridge), Malgosia Fitzmaurice (University of London, Queen Mary), and Jan Klabbers (Helsinki).   Among the potential topics will be discussion of the continuing vitality of the New Haven School as a method of treaty interpretation, the proper approach (or approaches) to preparatory work, and the problem of excessive textuality.  Along with my co-bloggers, I’m looking forward to the conversation and, as always, would encourage comments and questions from our readers.

Rashomon at Gitmo

by Deborah Pearlstein

To read the accounts of detention conditions at Guantanamo this week coming from the latest DOD review on the one hand, and detainee lawyers on the other, you’d think the reporters had visited not just different prisons, but prisons on different planets.

Clergy Sexual Abuse, the Holy See, and the FSIA

by Roger Alford

The Sixth Circuit last week rendered an important amended opinion in O’Bryan v. Holy See addressing the question of whether the Holy See could be sued for its role in the clergy sexual abuse scandal. The decision is fascinating and should be quite controversial.

As an initial matter it is worth pondering the essential conclusion of the Court: every religion in the world except the Catholic Church can be sued for illegal supervision of religious leaders who engage in sexual abuse of children. The head of the Catholic Church–the Holy See–stands alone, immune from suit because it is a sovereign entity protected by the FSIA. The Holy See can only be liable if one of the FSIA exceptions applies.

As for the particulars of the case, the claim was brought as a class action by plaintiffs on behalf of persons who allegedly have been sexually abused by employees of the Catholic Church. The Holy See was included as a defendant because of their alleged policy of covering up sexual abuse by Catholic priests.

Bleg: Did Lincoln Read Grotius, Gentili, or Vitoria on Neutrality?

by Kenneth Anderson

In connection with some work I am doing on Lincoln and the ethics of war in the Second Inaugural, I have been interested in Lincoln’s famous phrases in the Address that the “prayers of both could not be answered; that of neither has been answered fully,” and others that bind north and south in the causes, and responsibility for slavery and the war.  

Part of Lincoln’s thought seems to have an oblique parallel with the gradual shift from medieval just war thought (in which war is understood as a criminal activity and one is obligated, even from outside the conflict, to support God’s side, the just side) to the early modern conception that finds cautious expression in Grotius, Gentili, and Vitoria (from the standpoint of fallible humans, a war could be perceived as just as seen from both sides).  As Stephen Neff puts it in his marvelous history of the law of neutrality, The Rights and Duties of Neutrals (Manchester UP 2000), in what Vitoria called “cases of ‘provable ignorance’ as to which side was right … the two sides in a conflict could now be regarded asbeing on the same legal and moral plane.”  

God knew, but humans might not know and had to act from within their ignorance and fallibility.  This sentiment is very close to parts of the Second Inaugural – “with firmness in the right, as God gives us to see the right,” particularly.  

Does anyone know if there is any evidence that Lincoln might have read Grotius, Gentili, or Vitoria in his common law studies, or any summaries of them that might have made reference to these early modern law of nations doctrines?  If any of our learned readers had any references to this, I would be grateful to find out.  Thanks.

The Ethics of Defending Hitler

by Kevin Jon Heller

A few months ago, I mentioned in the comments to my now-infamous grape soda post that although I have no ethical qualms about advising Dr. Karadzic, I would not have defended Hitler if he had lived to see the inside of an Allied courtroom. That statement led to a number of pointed — and understandable — criticisms, such as this one:

Fair enough, but tell me where is the principle in admitting that as a Jew you wouldn’t represent Hitler, but you are happy to represent somebody else’s Hitler? (No I don’t think Karadzic was a Hitler, but nevertheless some see him that way). Again some pulling the wool over ones own eyes is necessary, its either that or to admit that it is rather unprincipled to be willing to represent one man accused of mass murder, but not another.

I tried to address the issue in more depth during my interview (the discussion is about 50 minutes in).  Most of the comments on the interview focused on the Hitler question — with sentiment divided regarding my position.  Indeed, Mark entitled his UN Dispatch post linking to the interview “Would You Defend Hitler?”

Few people, I imagine, will subject themselves to listening to me for an hour.  (My students, of course, have no choice.)  So I thought I would explain my position here.  In my view, the question “would you defend Hitler?” actually consists of two very different questions:

  • If Hitler had been prosecuted, would he have deserved a skilled and zealous defense?
  • If you think Hitler would have deserved a skilled and zealous defense, would you have volunteered to provide it?

I am very interested to hear how readers would answer those questions.  As I have implied, my answers differ: I would answer “yes, unequivocally” to the first question, and “no, definitely not” to the second one…

Imagining Sovereignty, Managing Secession (and Fourth Generation Warfare)

by Chris Borgen

I have posted to SSRN an article I recently published in the Oregon Review of International Law, entitled Imagining Sovereignty, Managing Secession:The Legal Geography of Eurasia’s “Frozen Conflicts.”

This article was written for a symposium on law and geography at the University of Oregon Law School that was organized by Hari Osofsky (of IntLawGrrls). I use my article to argue that the techniques of political geography try to “imagine sovereignty,” that is provide (literally) a picture for the very difficult and abstract concept of what is “sovereign,” while the rules of international law pick up some ideas from geography in its attempts to “manage secession,” in other words make it difficult for subnational actors to separate from existing states and achieve sovereignty themselves. I use the example of the Transnistrian conflict in Moldova as my main case and, in part, view it through the optic of the controversy over Kosovo’s declaration of independence.

Bringing together concepts from international law and geography, I define what I call the “legal geography” of secessionist enclaves (as opposed their political geography or physical geography).

In my closing section, I return to some broader questions of the Westphalian system’s evolution and even how all this relates to “fourth generation” or “networked” warfare.

Yes, I know I am smashing a whole bunch of ideas together like old Fords at a demolition derby but that is the fun of interdisciplinary scholarship. And I actually think bringing this stuff together is relevant. As I am working through some of these ideas in forthcoming pieces, comments are welcome. Interview

by Kevin Jon Heller

My apologies for the light posting lately.  Getting settled in Melbourne — and preparing to teach Australian criminal law — has been very time consuming.  My new email address is kheller [at] unimelb [dot] edu [dot] au.  Feel free to write!

I’ll be back to posting regularly soon.  In case you just can’t wait that long — hi, mom! — here is a link to an hour-long video interview I did this weekend for with Mark Leon Goldberg of UN Dispatch fame.  Mark and I talked about a variety of issues, from the ethics of representing a notorious defendant like Dr. Karadzic to whether the pending ICC arrest warrant against Bashir is a good idea.  Feedback would be most welcome.  My thanks to Mark for the invite and for being such an intelligent interlocutor.

The Obama Administration at the UN

by Kenneth Anderson

The Washington Post has an interesting story in the Sunday, February 22, 2009, edition (A16) by its longtime UN reporter, Colum Lynch, “With Rivals in Key Posts, U.S. Faces Hurdles at U.N.”  The article points out that many key UN posts are occupied by countries, and often individuals, hostile to the United States.  The General Assembly, for example, is headed by Miguel d’Escoto Brockmann, a leftist Nicaraguan priest.  Even countries under U.N. sanctions – Iran and Sudan, for example – have 


made their way back to international respectability, securing leadership positions on the board of the United Nations’ top development agency and at the head of the Group of 77 and China, a group that coordinates social policies for Third World countries.

Obama Administration Will Oppose Extending Judicial Review to Afghanistan

by Julian Ku

Again, this news is not exactly shocking:

The Obama administration has told a federal judge that military detainees in Afghanistan have no legal right to challenge their imprisonment there, embracing a key argument of former President Bush’s legal team.In a two-sentence filing late Friday, the Justice Department said that the new administration had reviewed its position in a case brought by prisoners at the United States Air Force base at Bagram, just north of the Afghan capital. The Obama team determined that the Bush policy was correct: such prisoners cannot sue for their release.

Jack Balkin, who is quoted in the article, notes that it is too soon to tell what the full position of the administration will be on these questions.  And I agree that it would be odd for the U.S. to give up its argument now. It can always backtrack later, but if it waives its argument now, it is going to be very tricky to “take back” the judicial review genie.

Still, we can at least see the outlines of a mini-trend:  Announce the closure of Gitmo, but quietly maintain a system of renditions and overseas facilities like Bagram to hold people who you really don’t want to release or whom you really need to interrogate. 

The Administration might be thinking that, as long as it introduces “humane” standards for confinement in Bagram, and makes sure renditions are to places where there isn’t torture, and comes up with a better administrative system for sorting out who should be detained, the existence of judicial review won’t matter much. 

This sounds like a good argument!  But it is the same one that the Bush Administration made over Gitmo for the past seven years.  I suppose Obama may get a pass on this, but he doesn’t deserve one.

Belgium Takes Senegal to ICJ for Failure to Prosecute

by Julian Ku

Belgium has filed a request for an order of provisional measures from the International Court of Justice against Senegal for that country’s failure to prosecute former Chad dictator Hissene Habre.  The press release describing Belgium’s application lays out the legal theory, which boils down to: The Convention Against Torture and general international customary law.  

Belgium contends that under conventional international law, “Senegal’s failure to prosecute Mr. H. Habré, if he is not extradited to Belgium to answer for the acts of torture that are alleged against him, violates the [United Nations] Convention against Torture [of 10 December 1984], in particular Article 5, paragraph 2, Article 7, paragraph 1, Article 8, paragraph 2, and Article 9, paragraph 1”. It adds that, under international custom, “Senegal’s failure to prosecute Mr. H. Habré, or to extradite him to Belgium to answer for the crimes against humanity which are alleged against him, violates the general obligation to punish crimes against international humanitarian law which is to be found in numerous texts of derived law (institutional acts of international organizations) and treaty law”.

Interestingly, if the ICJ eventually reaches this issue, it might opine on the debate Kevin Heller and others in the blogosphere have had over the obligation to prosecute contained in CAT Article 7, paragraph 1.  The application’s reference to a “general obligation to punish crimes against international humanitarian law…” cries out for more elaboration.  What in the world are those general obligations? So a case worth keeping track of.


Pentagon Says Guantanamo Complies with Geneva Article III – Will Obama Disagree?

by Julian Ku

It turns out conditions at the U.S. detention center in Guantanamo Bay do not violate U.S. obligations under Common Article III of the Geneva Conventions.  So says a review of the detention center by the Pentagon that was ordered by President Obama.

A Pentagon review of conditions in the Guantanamo Bay military prison has concluded that the treatment of detainees meets the requirements of the Geneva Convention but that prisoners in the highest-security camps should be allowed more religious and social interaction with one another, according to a government official who has read the 85-page document.

Frankly, this should not shock anyone but the most paranoid critics of the prior Administration.  The U.S. government has accepted, since at least the summer of 2006, that it is bound by Common Article III in its dealings with Al Qaeda.  Congress never really expressly overruled that interpretation of the U.S. Supreme Court, although it did try to remove judicial review.  So unless you believe the evil Bush Administration simply ignored its own statements about its legal obligations, Guantanamo had to be run consistent with Geneva III for the past three years. 

Of course, one might disagree with the Pentagon’s interpretation of its Geneva III obligations.  Indeed, President Obama might very well do so.  But former President Bush and former Vice-President Cheney cannot be used as bogeymen anymore, President Obama will have to overrule Pentagon bureaucrats and law of war experts.

Asymmetric Legal Enforcement in Gaza

by Julian Ku

As this BBC report suggests, investigating war crimes in the Israel-Gaza conflict is a pretty much hopeless task because there is no single entity with the expertise, knowledge, and legitimacy to find out the “truth.”  Any investigation, whether it is the UN or the ICC or Human Rights Watch, will be simply dismissed by the two sides as biased.  So I rashly predict that there will be no international investigation.  This leaves us with the national mechanisms, which is what UN Secretary-General Ban has said is the proper level of investigation. But this means, in effect, that only Israelis are subject to law of war-enforcement measures.

Israel at least has a mechanism for conducting investigations of its own people who might have committed war crimes  Its armed forces are governed by the law of war and its armed forces are subject to military command and control as well as civilian judicial review.  Indeed, if it were subject to ICC jurisdiction, Israel would have a decent case for claiming to have fulfilled its duty to investigate and punish war crimes committed by its nationals or on its territory.

The Deputy Spokesman at the Israeli Ministry of Foreign Affairs, Andy David, told the BBC that “Israel investigates all its actions regardless of outside calls.” He said the country did not need “external intervention to conduct any investigation”.

He said: “Israel acts according to international laws and with highest regards to morality during combat, even beyond the requirement of the law.”

A spokesperson for the Israeli army said the hits near the UN school and on the UN compound were being investigated.

The same cannot be said for the Palestinians.  Notice this response:

The Israeli army, and a number of human rights groups, say Hamas violated the rules of war by using civilians as human shields.

Human Right Watch says Hamas has done nothing to investigate.

A senior Hamas official, Ahmed Youssef, said allegations of violations were “completely baseless and nonsense”, the result of the “Israeli propaganda machine of fabrication”. He said there were “no violations by Hamas.”

Mr Youssef added: “It was ridiculous to say human shields were used. No Palestinian would use another Palestinian as a human shield”.

He said Human Rights Watch was not a credible institution, taking its findings from Israel. “They need to ask the people of Gaza what happened,” he said.

I wish I could believe Mr. Youssef, but any lawyer would find this response lacking, and it doesn’t seem to  fulfill the requirements of conducting national investigations under the ICC Statute.

Therefore, one of the ironies here is that Israelis are much more likely to be held accountable and punished for violations of the laws of war than any Palestinian.  This does not mean the Israelis have perfect law compliance.  But it is almost certainly true that Israelis actually face the possibility of legal punishment, whereas it seems fairly clear that no Palestinan does.

Wars, Crises, and the Eurovision Song Competition

by Chris Borgen

While Georgia has already gotten a provisional meausres order from the ICJ and there is some movement in terms of restarting a diplomatic process after this summer’s war between the two countries, the people of Georgia have decided to bring in the real arbiter of European politics: the Eurovision song competition. This yearly song competition is no stranger to high drama (ex.: last year’s competition was in Serbia, right around the time Kosovo declared independence.).  And this year, what with the War with Georgia, the pipeline politics, etc., it is being hosted by Russia (since they won last year’s competition).  

Anyway, if that wasn’t enough to get you to tune in, according to AFP:

Georgia has chosen a disco song poking fun at Russian Prime Minister Vladimir Putin as its entry for this year’s Eurovision song contest in Moscow.

Georgia initially considered boycotting the song contest in the Russian capital because of its war with Moscow last year, but ultimately chose instead to use Eurovision to make a light-hearted political statement.

“We don’t wanna put in,” performed by group Stephane and 3G with its none-too-subtle play on the prime minister’s surname, was chosen late Wednesday by a panel and phone-in vote to represent Georgia.

With a chorus of “We don’t wanna put in/The negative move/It’s killin’ the groove,” the song is unlikely to get a warm reception in Moscow, which is hosting the contest after Russia won last year’s competition in Serbia.

OK, the lyrics are about what you’d expect from a Euro-disco song but, still, who would have expected Georgians finding a way to make fun of Putin on a TV show being broadcast from Moscow?  And I wonder how the voting will go?  I’m telling you, more political scientists need to pay attention to this Eurovision thing.  Where are my empiricists when I really need them?

Constitutional Right, No Gitmo Remedy

by Deborah Pearlstein

It’s not as though this is a new problem in American rights law. The expansion of defenses like qualified immunity for federal officials, the statutory restrictions on collateral federal review of state criminal convictions with constitutional infirmities, the stark limitations on common law constitutional remedies in the courts – all of these areas of doctrine accept the idea that there may simply be no legal redress available for the victims of some rights violations – no matter how fundamental the right is.

We can now add to this disappointing catalog today’s decision by the D.C. Circuit Court of Appeals in Kiyemba v. Obama, holding that the U.S. federal courts do not have the power to order the government to release the 17 Gitmo-held Uighur detainees into the United States – even though the federal courts have concluded there is no lawful basis for their continued detention. Recall the particular problem of the Uighur detainees (among others) is that they can’t simply be sent home to China. The likelihood that they’ll face persecution (putting it mildly) there is sky-high, and the United States (among others) has treaty obligations that prohibit sending them home to such a fate. So what’s the remedy for their unlawful detention? What flows from winning their habeas case? Evidently, nothing in particular.

“Ever since the decision in the Chinese Exclusion Case, the Court has, without exception, sustained the exclusive power of the political branches to decide which aliens may, and which aliens may not, enter the United States, and on what terms…. As a result, it ‘is not within the province of any court, unless expressly authorized by law, to review the determination of the political branch of the Government to exclude a given alien.’”

Gitmo may be enough like the United States to allow constitutional habeas corpus rights to extend there (so said the Supreme Court), but it’s not quite enough like the United States to consider the detainees to have “entered” the country according to the chronically rights-defying definitions of U.S. immigration law. And because ever since the ignominious Chinese Exclusion Case the Supreme Court has held that the political branches have essentially plenary control over who crosses U.S. borders, it’s not for the courts to decide otherwise absent some very clear authorization.

So “what law authorized the district court to order the government to bring petitioners to the United States and release them here?” Not the Due Process Clause, says the D.C. Circuit. Immigration cases have always held that the Constitution doesn’t extend to non-citizens held beyond the “sovereign territory” of the United States. (Never mind, I suppose, that Justice Kennedy’s Boumediene majority no longer thinks sovereignty is the touchstone for the extraterritorial extension of constitutional rights). It also, evidently, “cannot be that because the court had habeas jurisdiction it could fashion the sort of remedy petitioners desired.” (Never mind, too, that the Boumediene majority also considered it “uncontroversial” that “the [constitutional] habeas court must have the power to order the conditional release of an individual unlawfully detained” or otherwise provide some meaningful remedy.) The appeals court simply said no, and remanded the case to the district court for “further proceedings consistent with the opinion.” (Good luck to all with that.)

So now what? Well, a caveat about the foregoing and then some options. First, I should be clear, it’s not as though I think the appeals court’s ruling is at the level of Yoo-like error. The arguments it makes about the limits existing immigration law should be read to place on the remedies available under the constitutional writ of habeas are not nonsensical. They are, however, not nearly as compelled by precedent as the court’s opinion pretends. And the court is, I believe, wrong not to recognize in this case the availability of conditional release or some other meaningful remedy – particularly in light of Rasul and Boumediene.

Second, while this case was briefed and argued before Obama took office, the matter is now (along with most else on the planet) in the new administration’s court. It would be ideal to get this D.C. Circuit opinion off the precedential books. But it would be fastest – and therefore do more justice – to put the Uighurs at the top of the list of detainees to be sent to one of those European nations now making more generous noises about sharing the burden of the post-Gitmo clean-up. The Uighurs actually seem to make as attractive candidates as any for release into the United States. And it seems hard for the U.S. Government to avoid entirely taking in at least some of the detainees it authorizes for release (even if only for purposes of subjecting them to our own immigration and deportation laws). But it’s also hard to imagine that option not requiring a doozy of a domestic political fight. And it’s a fight that, while in principle well worth having, could well take as long or longer to reach its conclusion than negotiations with an ally not quite so squeamish about meaningfully recognizing the rights they have promised. We don’t want or need to put the Uighurs in post-Gitmo immigration detention. These guys in particular have waited long enough.

Chevron Sues Bowoto Plaintiffs for $500,000 in Costs

by Roger Alford

This story in the continuing saga of Bowoto v. Chevron should give human rights litigants pause:

Chevron Corp., which prevailed in a human-rights lawsuit seeking to hold it responsible for the shooting of Nigerian protesters at an oil platform, is seeking nearly $500,000 in legal costs from the villagers who brought the suit. Chevron’s claim for reimbursement, filed in federal court, includes $190,000 in copying charges.

I contacted counsel for Chevron to secure a copy of the memorandum in support of costs, which is available here. The pleading includes itemized costs for several small expenses and two significant expenses of $263,640 for deposition costs and $190,216 for photocopying expenses.

The message of this latest move is clear: corporate defendants like Chevron are willing to fight hard against ATS litigation and send a message to human rights litigants that they should be extraordinarily careful to pursue claims that have a good chance of losing. As one of the lawyers representing the Nigerian plaintiffs put it, “My assumption is that it’s punitive and it’s designed as a shot across the bow of any would-be plaintiffs in the future.”

One Solution to Piracy: Try Pirates in Kenya

by Julian Ku

Last week I posted this excellent essay by Professor Kontorovich of Northwestern Law arguing that the anti-piracy efforts are unlikely to succeed as currently constituted.  One problem I’ve noted is that there is no obvious place to try captured pirates from Somalia.  The U.S. Navy’s plan is to try pirates in nearby Kenya.  As this article suggests, this strategy is going to get its first real test. 

…International law makes piracy a crime, but nations have struggled to figure out where to send suspects and how to gather evidence for cases that occurred in international waters. In September, a Danish ship captured 10 alleged pirates, but ended up landing them back onshore in Somalia.
Shortly before the first catch on Wednesday, the USS Vella Gulf commander, Capt. Mark Genung, said he was eager to capture the pirates and gather evidence for “an ironclad case.”
“The big holdup was finding someone who would prosecute international piracy,” said Coast Guard Lt. Greg Ponzi, an officer on the task force who usually pursues drug runners in U.S. waters.
Bogeta Ongeri, the spokesman for the Kenyan Ministry of State for Defense, said Kenya is eager to cooperate with other nations to combat piracy. But his country is wary of having its courts overwhelmed. “We have taken the lead, but that doesn’t mean all pirates will be tried in the Kenyan courts,” he said.
Kenya has agreed to take only a limited number of cases. Mr. Ongeri said he couldn’t comment on the recent arrests, but that the government would decide which cases to try in part based on where the alleged crimes took place. Kenya has provided the Navy with a checklist of evidence required to prosecute, U.S. officials said.

No-Stat All-Star Law Professors?

by Roger Alford

Last week I blogged about those incredibly irresponsible law professors who have tenure but do almost nothing to advance the institution. This week I want to turn the tables and talk about that delightful breed of law professors who are incredibly unselfish and manage to immeasurably improve the quality of the institution. Michael Lewis’ wonderful article on the “No-Stats All-Star” basketball player Shane Battier tees up the question nicely. Here is what Lewis says about the complicated relationship between playing in the best interest of the team and being purely self-interested:

There is a tension, peculiar to basketball, between the interests of the team and the interests of the individual. The game continually tempts the people who play it to do things that are not in the interest of the group. On the baseball field, it would be hard for a player to sacrifice his team’s interest for his own. Baseball is an individual sport masquerading as a team one: by doing what’s best for himself, the player nearly always also does what is best for his team. “There is no way to selfishly get across home plate,” …. Manny Ramirez can’t take at-bats away from David Ortiz…. In football the coach has so much control over who gets the ball that selfishness winds up being self-defeating. The players most famous for being selfish … are usually not so much selfish as attention seeking. Their sins tend to occur off the field. It is in basketball where the problems are most likely to be in the game — where the player, in his play, faces choices between maximizing his own perceived self-interest and winning. The choices are sufficiently complex that there is a fair chance he doesn’t fully grasp that he is making them…. [Battier is] the most abnormally unselfish basketball player … ever seen. Or rather, the player who seems one step ahead of the analysts, helping the team in all sorts of subtle, hard-to-measure ways that appear to violate his own personal interests.

Borrowing from Michael Lewis, one could say that law school is a strange mix of individual and team players. For the typical law scholar, academia is not a game that tempts one to do things that are against the interest of the group. Like baseball, virtually every great success of a member of the team inures to the benefit of the entire team. Every home run, every “selfish” act of personal glory, helps enhance the reputation and success of the team. And yet, law school is also like basketball, with some team players who are “no-stat all-stars” fielding positions that do not secure much attention. Yet these individuals dramatically improve the school in subtle, hard-to-measure ways. Typically administrative positions–deans, associate deans, committee chairs, institutional directors–do not offer opportunities for statistical attention. Effective teachers, brilliant research librarians, career counselors, and dedicated staff are also quintessential “no-stat all-stars” who can make the difference between good and great.

I would suspect that most law scholars watch with envious astonishment as the superstars of our world work their magic. But there is a time and a place to give Shane Battier and his ilk their due. We can’t measure their success, but each of us who work with them can feel their impact.

Helfer to Duke

by Duncan Hollis

Normally, this is Brian Leiter’s sort of thing.  But, I thought I’d flag for interested readers the news that Duke Law School has hired Larry Helfer away from Vanderbilt Law School.  The press release is here.  News of the hiring made me wonder if this move means “business as usual” for international law hiring in the United States this year, particularly among laterals?  I have no doubt that the economic meltdown will certainly chill such moves.  But, perhaps there’s a countervailing desire as law schools increasingly recognize that they need to broaden and deepen their international law programs (particularly at schools that are already seeking to make their mark in this area)?  It will be interesting, therefore, to see if the coming weeks bring more (or less) news of international law professor hirings.

The Mercenaries Formerly Known as Blackwater

by Kevin Jon Heller

In an effort to put its sordid past behind it — Nisour Square was so 2007 — Blackwater Worldwide has announced that it shall henceforth be referred to not as “Blackwater,” but as “Xe” — pronounced like the letter “Z.”

But why stop there?  Why not go full Prince and replace the Blackwater name with a symbol that represents what the company stands for?  I even have a suggestion for them:

Coming soon to a conflict area near you…

Alison Des Forges

by Kenneth Anderson

It sorrows me to report what I’m sure many of you have now learned, that Alison Des Forges, one of the great human rights workers and senior advisor to Human Rights Watch Africa Division, died in the plane crash of the Buffalo Continental Express flight on Thursday night, February 12, 2009.  I knew Alison back in the 1990s when we were both at HRW; I was at the Arms Division then, which had a great interest in arms transfers in the Rwandan conflict (at that point, pre-genocide), and she was working on the conflict for the Africa division.  She will be greatly missed, and our condolences and sympathy to her friends and family.

Alison L. Des Forges, a historian who documented the 1994 genocide in Rwanda and was an authority on human rights abuses in Central Africa, was a passenger on Continental Airlines Flight 3407 when it crashed near Buffalo on Thursday night, killing all 49 people on board. She was 66.

The death was announced by Human Rights Watch, the New York-based advocacy group where Dr. Des Forges, who lived in Buffalo, served as senior adviser for its Africa division.

Dr. Des Forges spent four years interviewing organizers and victims of the Rwandan genocide, in which she estimated that at least 500,000 people died. She testified before the International Criminal Tribunal for Rwanda, based in Arusha, Tanzania, and at trials in Belgium, Switzerland, the Netherlands and Canada. She also appeared on expert panels convened by the United Nations and what is now the African Union, as well as the French and Belgian legislatures and the United States Congress.

The MacArthur Foundation recognized her work with a $375,000 “genius” grant in 1999. Her book “Leave None to Tell the Story: Genocide in Rwanda,” published that year, has been called a definitive account of the genocide.

“Her death is a devastating blow,” Kenneth Roth, the president of Human Rights Watch, wrote in an e-mail message Friday to the organization’s board of directors. “She epitomized the human rights activist — principled, dispassionate, committed to the truth and to using that truth to protect ordinary people.”

Glenn Reynolds Explains Satellite Collisions under International Space Law

by Kenneth Anderson

The collision of two satellites in orbit around the earth, creating a cloud of debris and some amount of risk to the international space station, turns our thoughts to the international law of space.  And thence to Glenn Harlan Reynolds, who explains it for us in a column at Popular Mechanics.  I, for one, was surprised to actually read the 1972 convention and see that it provides a fault based system for collisions between two spacecraft in space, whereas it provides for “absolute” liability in the case of damage to things on the ground or aircraft.  

The collision of a dead Russian satellite with an Iridium communications satellite left a cloud of debris and a number of questions. But, contrary to some people’s impressions, it didn’t occur outside the law. Outer space is not a lawless region; it is governed by international law (and, in the case of U.S. spacecraft, or the U.S. parts of the International Space Station, by American law). 

Political Scientists Catch On to Human Rights

by Peter Spiro

This recent survey shows that the major academic journals in political science are publishing more articles on human rights than they once did.  No surprise there. Perhaps more interesting number would be to see how many relate to international law more generally. As with flagship law reviews, I suspect those numbers are up as well, perhaps dramatically.

A Global New Deal?

by Peter Spiro

Two items suggesting the possibility. First is this excellent piece from Harold Meyerson of The American Prospect, which sets out a strong case for the inevitability of global economic regulation (he is particularly interesting on the increasingly global scope of big labor). Meyerson draws on the old New Deal analogy, which is a powerful one — up to a point. . .

Happy 200th Birthday to Abraham Lincoln

by Kenneth Anderson

Two hundred years of Lincoln, February 12, 1809. … what, if anything, does that Lincoln fellow, the rural rube from the wild edges of the American frontier, have to do with international law?  Here are a couple of suggestions.

(Update: And check out John Fabian Witt’s essay on Lincoln and the laws of war, at Slate – John is one of the foremost historians on Lieber and the Civil War’s Lieber Code, and I’m looking forward to his book on the subject.)

The Obama Stimulus Requires U.S. to Buy American (or European or Japanese or Canadian or Mexican or Australian…)

by Julian Ku

In an effort to placate critics of the U.S. Congress’s stimulus package, the final revised version apparently has toned down the earlier House of Representatives proposal requiring recipients of stimulus money to “Buy American” iron and steel only. Here is the additional provision added by the Senate, and I believe it survived the final version(all emphasis is added by me):

SEC. 1604. USE OF AMERICAN IRON, STEEL, AND MANUFACTURED GOODS. (a) None of the funds appropriated or otherwise made available by this Act may be used for a project for the construction, alteration, maintenance, or repair of a public building or public work unless all of the iron, steel, and manufactured goods used in the project are produced in the United States.

. . .

(d) This section shall be applied in a manner consistent with United States obligations under international agreements.

A few observations:

ICC Judges Approve Bashir Arrest Warrant

by Julian Ku

The ICC has formally approved the ICC Prosecutor’s request for an arrest warrant against Sudan’s President.  Kevin’s post below discusses what the theory of criminal liability will be, although the actual warrant is not yet public, so we’ll have to wait to see if Kevin is right about joint criminal enterprise liability. 

I still think that this arrest warrant is unwise and it is unlikely to help the efforts to reach a sustainable peace deal in Sudan. And I think, for the immediate future, there is no chance Bashir is arrested by anyone. I suppose in the long run, this might all work out, but it is likely to get worse in Sudan before it gets better, and the ICC is an (admittedly minor) part of what’s making things worse there.

JCE III, the Rome Statute, and Bashir

by Kevin Jon Heller

There is an interesting discussion going on at Alex De Waal’s blog Making Sense of Darfur about the various theories of liability that might be used to hold Bashir responsible for genocide.  The discussion as a whole is well worth checking out; what I want to discuss here is whether Bashir could be convicted of genocide via JCE III, so-called “extended” joint criminal enterprise, which holds an individual who intentionally participates in a JCE responsible for crimes committed outside of the common plan if those crimes were reasonably foreseeable yet he willingly took the risk that they would be committed.  Alex’s most recent post discusses a new article in the Journal of International Criminal Justice in which Andrew T. Cayley, a former Senior Prosecuting Counsel at both the ICTY and ICC, argues that Bashir could indeed be convicted of genocide under the Rome Statute via JCE III:

In Brđanin, the Appeals Chamber of the ICTY stated that a participant in this extended form of joint criminal enterprise could be found guilty of genocide even without having the specific intent to destroy a protected group.


It seems plausible and certainly easier to prove that Al Bashir may have pursued a slash-and-burn counter-insurgency campaign, knowing that the Janjaweed/militia proxies would employ genocidal tactics to carry out his desired political goal. If this characterization is accurate, while Al Bashir did not possess specific genocidal intent, he could still be found liable for genocide under an extended form of joint criminal enterprise within Article 25(3)(a) of the [Rome] Statute.

This argument, unfortunately, completely misunderstands the relationship between the Rome Statute and JCE III…

Another Reason Not to Listen to Dershowitz About International Criminal Law

by Kevin Jon Heller

Because he says things like this:

[The ICC] has not opened investigations with regard to Russia’s alleged war crimes in Chechnya and Georgia, where thousands of innocent civilians were killed. Nor has it opened investigations with regard to Pakistan, Afghanistan, Sri Lanka, Zimbabwe, the Congo and other places where civilians are routinely targeted as part of military and terrorist campaigns.

That will come as something of a suprise to Mr. Lubanga…

Cooley on How the U.S. Lost its Base in Kyrgyzstan

by Chris Borgen

Alexander Cooley of Barnard College and the Harriman Institute at Columbia University has an op-ed in the International Herald Tribune looking into how and why the U.S. is in the process of losing its air base in Kyrgyzstan.

The story really gives a sense of the brass tacks of the so-called New Great Game: actually a not-so-great game of payoffs, more payoffs, threats, and opportunistic maneuvers. (Not that it was any different in the 19th Century.) After recounting the recent history of (seeming) payoffs and quid pro quos, Cooley shows how the U.S. airbase received its coup de grace:

Given the importance of the economic dimension to the Kyrgyz, it is hardly surprising that Bakiyev’s cash-strapped government was finally swayed to break its agreement with the United States when the Russian Federation promised even greater benefits. At their summit meeting in Moscow, Bakiyev secured from President Dmitri Medvedev an economic package in excess of $2 billion, including an emergency $300 million loan, $180 million in debt write off and $1.7 worth of financing for Kyrgyzstan’s hydroelectric sector, more than the prevailing unofficial quid pro quo of sundry assistance programs offered by Washington.

Cooley then takes his argument in a different tack than I expected. Rather than saying the U.S. should have been quicker with the blank check, he argues for smarter bargaining going forward in a manner that would avoid hostaging all other U.S. bases to costly re-negotiations:

Though the United States has the resources to match and exceed the Russian package, it should not participate in a bidding war over Manas. Any significant increase in compensation granted to Bishkek will signal to other global U.S. base hosts that they, too, can unilaterally abrogate and renegotiate access arrangements and use the interest of geopolitical rivals such as Russia and China for short-term economic leverage. The long-term damage to American interests worldwide would be great.

Instead, U.S. officials in their last-minute discussions can offer to organize a multilateral conference for Kyrgyzdebt restructuring and forgiveness, and encourage EU member states active in the Afghanistan campaign to expand their economic engagement with the Central Asian country. They should emphasize that trans-Atlantic commitments are credible, unlike those being offered by a cash-strapped Moscow that may not be in a position to deliver on its pledges (and which failed to do so for neighboring Tajikistan as part of their 2004 bilateral basing accord).

Finally, he suggests that Kyrgyzstan may not have been as strategic as it thought in its turn to Russia:

Moreover, without the presence of the Manas base, Bishkek itself will have far less leverage in its future dealings with Russia. On the other hand, alternative hosts such as Tajikistan, Uzbekistan and Turkmenistan will become newly valued members of the international effort in Afghanistan and their bargaining position vis-à-vis Russia will be enhanced.

For more on Cooley’s work on how U.S. military bases affect the poltics of their host countries, see his book Base Politics.

Another Temptation for the ICC: Israel and Gaza

by Julian Ku

Typically, I wouldn’t take this kind of thing very seriously.

The Palestinian Authority is pressing the International Criminal Court in The Hague to investigate accusations of war crimes committed by Israeli commanders during the recent war in Gaza.

But in a clever move, the Palestinian Authority has accepted the jurisdiction of the ICC over its territory, which includes Gaza. This could in theory extend ICC jurisdiction over Israeli nationals who operated inside Gaza during the recent conflict. 

As a legal matter, the difficulty is that it is far from clear that the Palestinan Authority is capable of accepting ICC jurisdiction since it is doubtful that it is a state or that it has sovereignty over Gaza, or both. 

Indeed, the status of Palestine is one of the main subjects of dispute between Israel and the Palestinians, and it doesn’t seem obviously helpful for the ICC to decide this question at this point. 

And intervening will hardly calm fears about the ICC’s aggressive interpretation of its jurisdiction, especially over nationals of states that are not parties to the ICC. It is tempting, but potentially disastrous for the ICC to get involved here. But maybe others feel differently?

Thoughts on Tenure

by Roger Alford

I love this recent article by Stanley Fish on the abuse of tenure:

Last week we came to the section on academic freedom in my course on the law of higher education and I posed this hypothetical to the students: Suppose you were a member of a law firm or a mid-level executive in a corporation and you skipped meetings or came late, blew off assignments or altered them according to your whims, abused your colleagues and were habitually rude to clients. What would happen to you? The chorus of answers cascaded immediately: “I’d be fired.” Now, I continued, imagine the same scenario and the same set of behaviors, but this time you’re a tenured professor in a North American university. What then? I answered this one myself: “You’d be celebrated as a brave nonconformist, a tilter against orthodoxies, a pedagogical visionary and an exemplar of academic freedom.”

Three quick thoughts: First, what is a law school dean to do in the face of such irresponsibility?…

Obama Administration Backs the State Secrets Privilege in Rendition Case

by Julian Ku

I’m not at all surprised by this.

Barack Obama‘s justice department has repeated a Bush administration policy of citing “state secrets” to prevent the release of evidence concerning extraordinary renditions.

The decision, revealed at a hearing in a San Francisco appeals court, came days after the British high court ruled that evidence of renditions and torture must remain secret so as not to endanger the intelligence relationship between the two countries.

Why the Piracy Police Isn’t Working

by Eugene Kontorovich

[Opinio Juris is pleased to present this essay by Professor Eugene Kontorovich of Northwestern Law School on the relationship between international law and anti-piracy efforts.  Please be sure to click “continue reading” to read the whole essay.]

The successful ransom by Somali pirates of a Ukrainian freighter laden with arms and armor is indicative of the broader failure of the massive international anti-piracy effort. Because of the important nature of the cargo, the seizure of theFaina was said to be a bridge too far for the pirates – the seized vessel was ringed in by a small flotilla; with the most powerful navies in the world bearing down on them, the pirates, it was said, could not win this one.

The ransom of the Faina can only be understood on the background of the pathetic spectacle playing out everyday in the Gulf of Aden. A naval force from over 20 powerful nations is there to put down a piracy problem that threatens to cripple world commerce – 1/3 of which transits through the Gulf. Western navies are finding and stopping the pirates, only to let them go —  in one case, even giving them a ride back to port. While pirates are international criminals that any nation can prosecute, none of the countries patrolling off Somalia has done so.

 Today international law seeks to resolve massive problems like genocide and decades-long ethnic conflicts, but is proving incapable of dealing with maritime mugging. It is important to understand why the piracy police is just twirling its baton. 

Welcome to the Blogosphere, International Criminal Law Bureau!

by Kevin Jon Heller

John Louth at OUP has kindly alerted me to the existence of a new blog that will no doubt be of interest to our readers: the International Criminal Law Bureau. Members include well-known practitioners and scholars, including Steven Kay, QC, and Guénaël Mettraux (of whom I’m a big fan).

The blog is part of a larger project by the same name.  I am not sure whether the members of the blog/project are a chambers, an NGO, or something else.  If any of them read this blog, I hope they will explain in the comments.

Regardless, the blog looks excellent.  Check it out!

It’s a Service, It’s a Good, No It’s a Bore

by Roger Alford

I have been meaning to do a post about the Supreme Court’s first antidumping decision in decades, but frankly the case is a yawner. The question in United States v. Eurodif is whether the importation of low enriched uranium (LEU) is a good or a service. If it is the latter, then it cannot be subject to antidumping duties, which may only be imposed on imported goods.

The contracts that gave rise to the dispute are complicated but essentially the process of providing LEUs is done in such a way that it can easily be interpreted as a good or a service. “Under a ‘SWU contract,’ the utility provides a quantity of feed uranium and pays the enricher for the SWUs to produce the quantity and assay of LEU called for. Despite their name, SWU contracts do not require that the contractual number of SWUs actually be applied to the quantity of uranium provided, rather, the enricher remains free to overfeed or underfeed so long as it delivers the specified LEU.”

The case comes down to a simple application of deference to administrative agency determinations. The contract can say it is a service, but the agency will look to the substance of the transaction. That substance led the Department of Commerce to conclude that the transaction was the sale of a good, and the Court agreed. Analogizing to the process of dry cleaning, the Court concluded that the LEU process is a sale of goods not services…

Trade Barriers Going Up …

by Kenneth Anderson

The Wall Street Journal has an article today, February 6, 2009, front page, on the rush by states to enact new trade barriers in all sorts of ways.  The WTO is expressing great concern, indeed saying that it is unable even to keep up with tracking the barriers being erected.

The landscape is moving so fast that officials at the WTO, the world’s top trade-law enforcer, say they’re relying on news reports to keep up with the changes, as governments are often slow to report them. They are reconsidering their Jan. 23 report that concluded protectionist pressures were largely being kept at bay.

Harold Koh for State Department Legal Adviser?

by Deborah Pearlstein

Well, the rumors have now officially made it to the blogosphere. Yale Law School Dean Harold Koh is (at the very least) on someone’s short list to take over from John Bellinger as the next Legal Adviser at the Department of State. See it here in TNR, which got it from no less a source than the Yale Daily News. Dean Koh would make an exciting choice for a host of reasons, not the least of which is his celebrated defense of international law as “our law” in law review article upon article, and his more general (also celebrated) support for the international law of human rights. His views on torture and related issues are entirely in line with those of recent appointees to the Justice Department Office of Legal Counsel. See, for example, his 2006 article “Can the President Be Torturer-in-Chief?” in the symposium issue of the Indiana Law Journal (a conference hosted by new OLC head Dawn Johnsen). Hint: The answer is no. Also worth a read is his congressional testimony last fall about what the incoming administration should do about restoring the rule of law to U.S. counterterrorism operations. Much more to say on Koh’s voluminous scholarship and stellar career, but for now, I’ll leave it at — talk about change….

Will Someone Please Tell the Washington Times That Bush and Obama Have Exactly the Same Policy on the ICC and Sudan?

by Julian Ku


Sometimes reporters and their editors get caught up in a narrative, and forget to check facts.  In the case of Obama and Bush, every Obama pronouncement is presumed to represent a reversal of Bush policy. But this is simply not true (see, e.g., the predictable Obama retention of Bush’s “extraordinary rendition” and airstrikes in Pakistan policies).   And so it goes with this “exclusive report” in The Washington Time, which seems to suggest that President Obama is departing from former President Bush’s policy by approving the implementation of the arrest warrant against Sudan President Omar Bashir.  (The headline reads: “EXCLUSIVE: Obama backs indictment of Sudan leader, Revisits Bush stance on international court.”)

In fact, as this December 2008 NYT article confirms, the Bush Administration has consistently supported ICC action against Sudan, and has been a consistent voice against blocking a deferral of the indictment against Sudan’s President Bashir (unlike China, Russia, France, and Britain).  Now I have reasons to think the Bush Administration is wrong in supporting the arrest warrant, but Obama is breaking no new ground here when it is basically sticking with the Bush policy.  Frankly, there is no news here and the Times should either issue a correction or at least withdraw that highly misleading headline. 


Tony Blair on Faith and Public Policy

by Roger Alford

I found this article in the Yale Alumni Magazine about Tony Blair’s new Faith Foundation absolutely fascinating. Tony Blair is now teaching a course at Yale with the eminent theologian Miroslav Volf on the subject of “Faith and Globalization.” According to the article, Blair is trying to use this foundation to encourage interfaith tolerance and dialogue. Given that religion is a major source of conflict in international relations, it is surprising that diplomats and heads of state don’t make a greater effort to understand religion and seek to use it as a source for good. When he left office Blair decided to devote himself to faith and globalization because, in his words, “globalization obliterates borders and frontiers and pushes people together. Faith can become a reaction to it and pull people apart…. Even if you are of no religious faith and don’t even like religion, you should be interested in this…. My view is globalization needs strong values to guide it and make it equitable and just.”

The mission statement of Blair’s new foundation puts the matter succinctly…

More on PW Singer and Battlefield Robots at Wilson Quarterly

by Kenneth Anderson

Chris mentioned earlier the NPR interview with Brookings Institution scholar PW Singer on his new book, Wired for War.  I am naturally reading the book as we speak, but for those wanting a useful, clear, short take from Singer himself, check out the Winter 2009 issue of the Wilson Quarterly, and Singer’s cover article, “Robots at War: The New Battlefield.”  (The whole article appears to be available at the link.  Hooray!  I’ll be commenting on the article in an invited set of letters that the WQ will publish in the next issue.)

ICJ Sets Black Sea Maritime Boundary Between Romania and Ukraine; Resolves Significant Oil and Natural Gas Claims

by Chris Borgen

The ICJ has issued a judgment in the case Maritime Delimitation in the Black Sea (Romania v. Ukraine). At first glance the issue may seem relatively dry: whether Serpents’ Island in the Black Sea is an inhabited island or just a rocky outcropping. But the answer to this question affects maritime delimitation lines, which in turn resolves which country has the right to exploit oil and natural gas deposits found near Serpents’ Island,  which may total about 100 billion cubic meters of natural gas and 100 million metric tons of crude oil.  According to the Reuters report in the previous link, the ICJ decision awards Romania about four-fifths of its original claim.  You can see the Ukrainian and Romanian claims in the maps at the end of this press release, followed by a map showing the ICJ’s delimitation.

Depending on the actual amounts of gas and oil that are found, this delimitation may affect the energy politics of the region (and may increase the energy security of Romania, in particular).

The Problem with “The Boy in the Striped Pajamas”

by Kevin Jon Heller

I rarely like – if that is even the right word – movies about the Holocaust.  Such movies almost invariably invite us to identify with a small number of Jews imprisoned in the concentration camps, turning the millions of others (unintentionally, to be sure) into a nameless, faceless backdrop of suffering that makes the fate of “our” Jews all the more poignant.  Sometimes the small group lives and we are “happy,” as in Schindler’s List or The Counterfeiters or the loathsome Life is Beautiful.  Sometimes they die and we are sad, as in The Grey Zone.  Either way, our emotions are largely dictated not by the horrors visited on the millions of innocent Jews, but instead by what happens to the Jews the movie privileges – the ones we root for to survive.

I now have a new addition to my list of disliked Holocaust movies: The Boy in the Striped Pajamas.  The movie centers on a young German boy whose father is the commandante of a Nazi extermination camp.  The father is evil, a Nazi ideologue; his wife is horrified by what she knows is going on; the daughter joins the Hitler youth; and the boy, our protagonist, is too young to understand what is really going on inside the camp.  One day the boy sneaks out of his house and comes across a young Jewish boy sitting on the other side of the camp’s electrified barbed-wire fence…

Does Involuntary Medical Testing by a Corporation Violate International Law?

by Roger Alford

The Second Circuit last week rendered another important ATS decision addressing some of the most troublesome issues relating to human rights litigation against corporate defendants. In the case of Abdullahi v. Pfizer, the Second Circuit was faced with the question of whether involuntary medical testing on humans violates international law.

Perhaps the most significant part of the decision was the spirited debate between the majority and the dissent over what constitutes actionable customary international law under Sosa. Scholars have long struggled with the Paquete Habana versus Filartiga approach to finding customary international law. This debate is nicely encapsulated in the majority and dissenting opinions….

Is the U.S. Ready to Get Engaged with the ICC?

by Duncan Hollis

Although prospects of a marriage remain somewhat fanciful, if the ASIL Task Force on U.S. Policy Toward the International Criminal Court has its way, the Obama Administration will take steps to engage with the ICC in a much more positive way than the Bush Administration.  The Task Force issued a press release today, proposing several significant shifts in U.S. policy.  Here are a few of the highlights: 

  • a stated policy of the U.S. Government’s intention, notwithstanding its prior letter of May 6, 2002 to the U.N. Secretary General, to support the object and purpose of the Rome Statute of the Court;
  • examination of methods by which the United States can support important criminal investigations of the Court, including cooperation on the arrest of fugitive defendants, the provision of diplomatic support, and the sharing of information, as well as ways in which it can cooperate with the Court in the prevention and deterrence of genocide, war crimes, and crimes against humanity;
  • examination of U.S. policy concerning the scope, applicability, and implementation of “Article 98 Agreements” concerning the protections afforded to U.S. personnel and others in the territory of States that have joined the Court;
  • U.S. participation as an observer in the Assembly of States Parties to the Rome Statute, including the Special Working Group on the Crime of Aggression and the 2010 Review Conference of the Rome Statute;
  • an inter-agency policy review to re-examine, in light of the Court’s further performance and the outcome of the 2010 Review Conference, whether the United States should become a party to the Rome Statute with any appropriate understandings and declarations as other States Parties have done.

The Task Force is also recommending some changes in U.S. law to coincide with their recommended policy changes:  

• amendment of the American Service-members’ Protection Act and other applicable laws to the extent necessary to enhance flexibility in the U.S. Government’s engagement with the Court and allies that are State Parties to the Rome Statute;

• consideration of amendment to U.S. law to permit full domestic U.S. prosecution of crimes within the jurisdiction of the Court so as to ensure the primacy of U.S. jurisdiction over the Court’s jurisdiction under the complementarity regime; and

• hearings to review and monitor Court performance in order to identify means by which the United States can support the Court consistent with the interests of the United States and the international community and to re-examine whether the U.S. should become a party to the Rome Statute with any appropriate understandings and declarations as other States Parties have done.

The Task Force, chaired by Will Taft and Patricia Wald, includes an august group of former jurists, notably Sandra Day O’Connor and Stephen Schwebel, scholars like Ruth Wedgwood and Michael Newton, along with former congressman Mickey Edwards and former Deputy ICTY prosecutor David Tolbert (Harold Koh was originally listed as a Task Force member, but appears no longer to be associated with it).  Although there’s definitely an internationalist tilt in membership, it’s truly bipartisan.  They’ve met frequently and sought outside expertise as well (full disclosure: I provided some advice to the Task Force on the international and domestic legal effects of John Bolton’s 2001 letter indicating the United States had no intention to ratify the Rome Statute).  Given the membership and the amount of time the Task Force has spent trying to craft a common position, I suspect its opinions will likely get some serious play at the White House, Foggy Bottom, or even on the Hill.  The Task Force is scheduled to issue a more detailed report of its position in time for the upcoming ASIL meeting, so I’ll try and report back when we have a more nuanced vision of the group’s recommendations.

You Too Can Sound Like a Radio Host: Or How Not to Humiliate Yourself in Front of Your Class

by Peggy McGuinness

The Oxford BBC Guide to Pronunciation may be well and good as a desk reference, but the Voice of America (VOA) Pronunciation Guide does them one better:  Online MP3 files for checking the pronunciation of the names of foreign leaders and public figures in the news.  So, if like me you are checking to be sure your pronunciation of Vojislav Seselj passes muster, you can check it here.  The pronunciation of Recep Tayyip Erdogan (whose name seems to be pronounced in a variety of ways in the U.S. media this week) is here. The VOA guide is not exclusively for foreign names — I spotted Joe Biden and Timothy Geithner on this handy short list. It doesn’t extend, however, to sports figures; Novak Djokovic doesn’t make the cut.  The methodology behind the VOA pronunciation guide is simple and a presents some good rules of thumb for names not on the list:

VOA English language broadcasters should try to pronounce a person’s name as that person pronounces it. The goal is to sound intelligent, informed, and natural. Therefore, we should not overly stress certain sounds which are peculiar to specific foreign languages. In other words, don’t try to sound as if you are fluent in a language if you are not.

A few minutes with this handy tool and you too can sound like a well-seasoned diplomat!

Darren Hutchinson Calls Out Human Rights Watch on Flip-Flopping on Rendition

by Kenneth Anderson

(Update: Professor Hutchinson responds to his critics.)

My Washington College of Law colleague, Darren Hutchinson – a brilliant and distinguished scholar in constitutional law, jurisprudence, critical race theory and identity theory – takes on Human Rights Watch for the apparent shift in position on rendition it took under the Bush administration and long-time Washington advocacy director Tom Malinowski’s comments on rendition under the Obama administration, as reported in the Los Angeles Times.  In addition to what I post below, the full blog post compares HRW’s earlier conclusions and recommendations on rendition with Malinowski’s comments.

I can stomach some political flip-flops. Politicians run with the popular opinion for the most part, but sometimes their positions legitimately change in the face of new factual information.

But I think it’s pretty deplorable to flip-flop on the issues of human rights and torture. Unfortunately, in an effort to defend the new administration in Washington, Human Rights Watch has apparently modified its position on the issue of rendition, which it previously viewed as inherently abusive and inhumane.

Upgrades to Opinio Juris

by Peggy McGuinness

Ever responsive to the needs of our readership, Opinio Juris underwent some minor surgery this weekend, upgrading our server and tweaking a few of our features.   We anticipate that our new server will speed up the blog and eliminate some of the pesky service interruptions we have experienced in the past couple of months.   As you will note, we have returned the posts to our traditional presentation of reverse chronological order.  While we no longer have a “featured post” of the day, you will still be able to find selected “Recent Posts of Interest” in the right sidebar (these are the “keepers” that you don’t want to miss!)  Also, hyperlinks within blog posts will now open in a new window or tab (depending on your browser type), which will permit toggling between the OJ page and the linked pages or documents.

I encourage interested readers who have not already done so to register for the blog (link here, or in the right sidebar).  Registration permits you to comment with greater ease and also to opt for daily digests of OJ posts.   In the meantime, please keep the comments coming.  We appreciate the feedback and, as always, your visits to the blog.

A very special thanks goes to our web consultant, Seth Elalouf of Spacesuit Group.