Archive for
March, 2009

Pro Koh [UPDATED]

by Chris Borgen

I was very happy to hear last week the news that Dean Harold Koh of Yale, someone I have known for many years and whom I greatly admire, was being nominated to head the State Department’s Office of the Legal Adviser. It’s one of those picks that just makes sense: Koh is widely respected in the legal profession (among lawyers with a wide variety of views), he holds a post that is at the pinnacle of legal academia, he has significant government experience from being an Assistant Secretary of State in the Clinton Administration and in OLC during the Reagan Administration, and so on and so forth.

Of course this doesn’t stop someone from trying to start some negative spin (in this case in Rupert Murdoch’s New York Post). I am not going to waste my time or yours with a sentence by sentence refutation of Meghan Clyne’s broadside. Above the Law does a quick and funny response, in any case.

But there is something here that, beyond being irksome, is sad. Clyne’s piece shows how quickly partisans move from honest analysis– or even good faith refutation—and instead go for the cheap shots and the character assassination. Besides flinging mud at someone’s reputation, it also muddies the waters concerning the substantive issues of international law.

For example…

UPDATE: Over at IntLawGrrls, Beth Van Schaack does a great job separating fact from fallacy in the Koh confirmation process.

Chatham House Event on the African Court on Human Rights

by Kevin Jon Heller

I recently posted an invite to a Chatham House international law discussion group about the new African Court on Human Rights.  The event was obviously a rousing success, as the following report by Sonya Sceats indicates:

Last Monday night (23 March 2009) at Chatham House we were very privileged to host a fascinating discussion about Africa’s new regional human rights court, the African Court on Human and Peoples’ Rights.

More than 200 people turned up to hear and debate with our distinguished panel, chaired by Lord Steyn, a former UK Law Lord and outspoken champion of human rights. The other panelists were Judge Bernard Ngoepe (African Court on Human and Peoples’ Rights), Ms Sanji Monageng (Chairperson of the African Commission on Human and Peoples’ Rights, and recent appointee to the ICC), and Ms Nobuntu Mbelle (a prominent civil society human rights specialist). Judge Ngoepe introduced the Court and explained some of the many challenges it faces, while Ms Monageng and Ms Mbelle shared perspectives on the Court from the Commission and civil society respectively.

The question and answer session following the three presentations was particularly rich…

The Climate Change Negotiations Resume

by Dan Bodansky

The climate change “negotiations” resumed this week in Bonn.  I put “negotiations” in quotes (or as they say here in England, “inverted commas”) because there has been little negotiating over the past 18 months since the Bali Action Plan was adopted. (The UNFCCC web site characterizes the sessions this week as “talks”.)  Indeed, there is as yet no “negotiating text,” only a series of proposals – or fragments of proposals – by states.

In theory, the negotiations are supposed to conclude in December at the Copenhagen Conference. But meeting this deadline will require a tremendous acceleration in the pace of the negotiations. States are still not even agreed on the legal character of the Copenhagen outcome, let alone the substantive content of a post-Kyoto regime.  As a result, the likely outcome in Copenhagen will be a partial agreement, establishing some architectural elements but leaving much of the substance for later elaboration.

I don’t envy the negotiators.  The new Obama envoy Todd Stern (and his deputy Jonathan Pershing)  ….

At Least Spell My Name Right…

by Kevin Jon Heller

Oy vey iz mir.  The blogosphere is positively abuzz (see here and here) with the news that the ICTY Trial Chamber has used my post about meeting Dr. Karadzic to supports its recent decision that he speaks English for purposes of the Statute and Rules of the Tribunal, a decision that relieves the Prosecution of the obligation to translate its legal materials into Serbian.  It’s every lawyer’s nightmare — inadvertantly becoming a witness in his own case.  Here are the relevant paragraphs:

6. As a final contention in favour of the relief sought in the Motion, the Prosecution argues that the Accused has conversed with his legal associates, and participated in proceedings held before this Chamber and the Appeals Chamber, all in the English language. In support, the Prosecution refers to a web-log entry authored by the Accused’s pro bono legal adviser, Kevin John Heller, in which the latter described a meeting with the Accused on 8 January 2009, during which he conversed in English. Since 10 October 2008, the Accused has made submissions in English and has drafted correspondence in English. In addition, the Accused requested a verification of the English translation of one of his own submissions on the very day that he received that translation. The Prosecution further notes that the Accused gave evidence before the Appeals Chamber in the Krajisnik case partly in English.

19. The Chamber notes the Accused’s argument that these clips merely show that he conversed in English “from time to time 14 to 17 years ago” and that there is no evidence that he has a sufficient understanding of English at present. While the Chamber has no direct knowledge of the Accused’s ability to use English at the time he was at Columbia University, his capacity for English, as demonstrated in these clips, is consistent with what the Chamber would expect of someone studying at an English language university. It is clear on the evidence presented to the Chamber that, in the intervening 14 years, that capability for English has not disappeared or been diminished. For example, the Accused’s own pro bono legal adviser, Kevin John HelIer, made assertions to that effect when he recounted a meeting with the Accused during which they talked about world politics as well as “more substantive matters” relating to the case, all in the English language. In addition, during his testimony in the Krajisnik Appeal hearing, the Accused was capable of reading out a number of excerpts in English, and even chose to comment on one of them in that language, exhibiting immediate and perfect understanding of what those excerpts meant. Having listened to the audio recording of the Accused’s testimony in that case, the Chamber is satisfied that he can read and comprehend English well.

I won’t try to defend myself, because that part of my post was obviously ill-advised.  What distresses me is the decision itself, which punishes Dr. Karadzic for exercising his right of self-representation…

Spain’s Judge Garzon Orders Criminal Investigation of Six Bush Administration Officials

by Chris Borgen

A quip that is often heard at gatherings international lawyers is “If I were [insert name of some prominent Bush Administration official], I wouldn’t plan on any more vacations in Europe.”  Well, after all the talk of possible European prosecutions of one or more officials from the previous administration, the possibility has now taken a step closer towards becoming reality. CNN reports:

A senior Spanish judge has ordered prosecutors to investigate whether key Bush aides should be charged with crimes over the Guantanamo Bay detention center, a lawyer said Sunday.

Investigating magistrate Baltasar Garzon has passed a 98-page complaint to prosecutors that accuses former Attorney General Alberto R. Gonzales and five others [John C. Yoo, Douglas J. Feith, William J. Hayes II, Jay S. Bybee and David S. Addington] of being the legal architects of system that allowed torture in violation of international law, human rights lawyer Gonzalo Boye told CNN.

Prosecutors will review the document to determine if a crime has been committed.

The prosecutor’s office will make a decision within five days, said Boye, one of the report’s authors. Garzon accepted the complaint under Spanish law because there were several Spaniards at Guantanamo who allegedly suffered torture.

Judge Garzon is already familiar to many as the investigating magistrate who had issued the arrest warrant against Pinochet that started the extradition fracas.

That being said, it still remains to be seen whether prosecutors will actually move forward with a case.  They may be reticent to do so if they think that issues of liability may be murky (that is, was this just bad legal advice or actual criminal activity) or if they want to avoid politically contentious issues (such as whether Spanish domestic courts are the right place to resolve the issues at hand). 

Now, I know many of our readers have strong views as to whether those named above should or should not be prosecuted. I think those have been aired  fairly well. What I’d like to ask–especially to any of our readers with some knowledge as to European courts–is whether you think the Spanish prosecutors are likely to pursue this case or not, and why. (Irrespective as to whether you think these folks should be prosecuted somewhere.) How accepted would it be that Spanish courts would have jurisdiction?

PW Singer’s Wired for War Discussion at CTLab

by Kenneth Anderson

Complex Terrain Laboratory, where several OJ people sometimes participate, is hosting an online discussion next week on PW Singer’s new book on robotics and war, Wired for War.  We have mentioned this book in the past, and OJ has a number of posts on battlefield robotics in the last year or so.  Singer is participating in the CTLab symposium and, having read his opening post, it looks to be fascinating.  It is a terrific lineup of participants.  That said, let me comment on why robotics is important to discussions here at Opinio Juris …

Darfuris’ “Mixed” Feelings About the Warrant for Bashir’s Arrest

by Kevin Jon Heller

The Institute for War and Peace Reporting’s article today about Darfur is entitled “Darfuris’ Mixed Feelings Over Bashir Warrant.”  When I first saw the title, I thought that the article was going to discuss Darfuris who believe that the warrant will undermine the possibility of a lasting peace in the region.  My bad:

“We are really very happy about the arrest warrant against al-Bashir. It is a victory for [Darfur refugees],” said Adam Bush, a refugee and spokesman for some of the nearly 150,000 Darfuris living in around the town of Zalingi.

“However, we see the genocide charge has not been included in the charges – but we believe this is a genocide.”

While many Darfuris applauded the recent indictment by the International Criminal Court, ICC, of Sudan president Omar al-Bashir, some were disappointed that genocide was not among the war crimes charges.

The destruction of Darfur communities has been nearly total, Bush continued, and has been focused on specific ethnic groups.

[snip]

Another who disagreed with the court on genocide was Yacoub Bakhit, a resident of the Kasab refugee camp in north Darfur.

“I totally don’t agree with them,” he said. “If Al-Bashir and his army didn’t perpetrate acts of genocide, who else did in this world?…

Lessons Learned on the Rational Design of International Environmental Agreeements

by Dan Bodansky

Last month, the UNEP Governing Council voted to begin negotiation of a treaty on mercury pollution.  The negotiations will start next year and are supposed to conclude in 2013.  Meanwhile, negotiations on the future of the international climate change regime will resume next week in Bonn, aimed at reaching an agreement at the Copenhagen Conference in December.

The development of any new environmental regime involves a huge number of design choices, including:

  • Negotiating forum (global or regional, general or specialized)
  • Substantive scope
  • Legal form (new treaty, modification of existing treaty, decision or resolution)
  • Commitments (including their depth, precision, regulatory approach and regulatory target)
  • Incentives for participation (carrots and sticks)
  • Mechanisms to promote flexibility
  • Institutional arrangements (functions, decisionmaking rules etc)
  • Implementation and compliance mechanisms (to generate information, provide assistance, and respond to non-compliance)
  • Exit clauses (reservations, withdrawals)

In the case of the mercury and climate change negotiations, some of these design issues are already decided (forum, membership and, for the mercury negotiations, legal form and scope). But many are still open. . .

Alex de Waal’s Article 58 Survey

by Kevin Jon Heller

In response to my previous posts on the correct interpretation of Article 58, Alex de Waal asked three lawyers to answer the following two questions:

1. Did the Pre-Trial Chamber misinterpret Article 58’s “reasonable grounds” standard?
2. If so, does the Prosecution Application establish reasonable grounds to believe Bashir is responsible for genocide?

It’s an interesting survey.  Two of the three lawyers agreed with me on the first question.  One did not, although he or she either misunderstood Alex’s question or has not bothered to read Article 58.  According to lawyer No. 2, “[w]hereas ‘reasonable grounds to believe’ is not absolute, the factor ‘only’ (in reasonable inference) is absolute. The question is, which one ‘wins’: should one lower the standards of ‘only’ because it is a pre-trial stage? I wouldn’t say so.” As I have pointed out, there is no “only reasonable inference” requirement in Article 58; that requirement is the invention of the PTC.  The lawyer’s argument is thus completely tautological: the question is whether the language of Article 58 supports the PTC’s argument, not whether the language of the PTC’s argument supports the PTC’s argument.

On the second question, the lawyers unanimously concluded that, even had it applied the correct standard, the PTC would have — and should have — refused to issue the arrest warrant on the genocide charges.  I obviously disagree with that conclusion, but it is certainly a debatable issue.

The post is well worth a read.  It’s available here.

It’s Official – and a Word on GCIV Art. 42

by Deborah Pearlstein

As usual, I’m likely last online to note the now-official news of Harold Koh’s nomination to be Legal Adviser at the U.S. Department of State. For what it’s worth, we’d seen it coming. If the Senate has any sense, the nomination will sail through. I can’t imagine a candidate more qualified. Congratulations Dean Koh!

And now back to the detention front, which this past week saw the filing of a brief on behalf of a group of detainees responding to the Obama position on the scope of its Gitmo detention authority under the Authorization for the Use of Military Force statute (AUMF). Scotusblog has a fine summary and the brief here. In essence, the detainees agree that the scope of detention authority under the AUMF should turn on “that authorized by the traditional law of war.” What exactly does that law authorize? Well, the brief doesn’t particularly spell that out other than to be clear that whatever it means “substantially support” (Taliban or Al Qaeda forces engaged in hostilities against the United States), it’s almost certainly broader than what IHL allows.

So the litigating lines, such as they are, are drawn. And the question remains, what detention power does IHL contemplate? More specifically, what detention power does the IHL of non-international armed conflict contemplate – for if there is any armed conflict within the meaning of international law between the United States and Al Qaeda, it is perforce a non-international one. As I wrote here last week, I believe the IHL of NIAC is effectively silent on the question of detention authority, leaving the question of detention authority to applicable domestic law to determine. Since that domestic law is the AUMF here, I advised the court to look to traditional principles of statutory construction to flesh out who Congress intended to be militarily detained.

Professor Goodman, whose important piece I noted here last week, seems to suggest a different view of NIAC. In it, he writes:

The Fourth [Geneva] Convention, under Articles 5, 27, 41-43, and 78, plainly permits the detention, or internment, of civilians not according to status-based categories, but according to whether an individual poses a security threat. In noninternational armed conflicts, international authorities have applied the same principle. Thus, states may detain a civilian without finding that the individual directly participated in hostilities.

He is certainly right about what GCIV authorizes with respect to civilians detained in an international armed conflict – a state-v.-state war with an endpoint the law fairly clearly defines. And he is also right to note that many critics of Bush Administration detention policies tended to overlook that reality. But what about the critical, if indeterminate, proposition that “international authorities have applied” the same principle to NIAC? As soon as I’m back from this week’s ASIL meeting in D.C., I’ll have a look at the authorities he cites at footnote 12 in support: an article by Joanna Dingwall on ICTY jurisprudence; a discussion of UN Human Rights Commission examples from Zegveld’s “The Accountability of Armed Opposition Groups in International Law”; and a 1999 report to the Inter-American Comm’n on Human Rights regarding Colombian civil war.

In the meantime, it seems as though a host of cautions are in order (in no particular order). First, just because some “authorities” have applied the same “principle” (presumably a principle in which security detention of civilians is permitted) in NIAC, doesn’t make that principle a statement of binding international law – either treaty-based (GCIV by its terms is about IAC) or customary.

Second, even if NIAC did contemplate security detention as a matter of international law, this doesn’t resolve the question of what the AUMF authorizes the President to do under U.S. law. Among other things, constitutional protections of due process and separation of powers principles almost certainly require that if Congress were going to authorize detention on the scale this view implies, it would have had to say something a great deal more clearly than it did in the AUMF. It’s one thing for the AUMF to incorporate by reference a detention authority in IAC that is not only made explicit in the terms of several treaties, but entirely consistent with historical practice, and (unlike in NIAC) has a duration/endpoint that is defined in law. (In any case, the Supreme Court said as much in Hamdi.) It is quite another thing to bootstrap a deeply vague NIAC detention authority into an already vague federal statute and assume that too passes constitutional muster. Call it the principle of legality in international law – it all amounts to the same thing.

Third, even if one could legitimately – under both constitutional and international law – lift a provision like GCIV Article 42 whole hog into the context of NIAC, Article 42 detention authority even in the more constrained context of IAC is dramatically limited, permitting only that detention as is “absolutely necessary” for the security of the detaining power. Is it “absolutely necessary” for the security of the United States that it be able to detain terrorist suspects picked up anywhere in the world under a legal authority that goes beyond its own sweepingly extraterritorial and often preventively focused criminal law? Guess we’ll find out if the administration advances the Art. 42 theory in court.

Daniel Bradlow on Reform of the IMF and the Developing World

by Kenneth Anderson

The IMF is much under discussion these days as the global recession deepens and spreads.  I invited Daniel Bradlow (professor at my school, Washington College of Law, and head of our international legal studies program, as well as long time advisor on Africa to the development banks and institutions and SARCHI professor of international development law at the University of Pretoria) to give OJ the following guest post on the developing world and reforming the role of the IMF.  After the jump, The G20 and Sustainable IMF Reform

 

Will the G20 agree to the reforms needed to make the IMF an effective part of international financial governance? The prospects are grim because it would require difficult political compromises or amendments to the IMF’s Articles of Agreement. Yet reforms are needed to address the IMF’s coordination with other international institutions, the scope of the financial regulatory regime, and its representative legitimacy. Some initial steps the G20 might take …

Comparing Transnational Networks – Terrorist Networks and International Law Networks

by Kenneth Anderson

Our very own Chris Borgen has a new piece up on SSRN that is well worth reading, comparing transnational networks of terror groups with transnational networks of international law and counterterrorism.  Chris is apparently far too modest to post his own piece up (I myself never have more than twinges that way, and anyway easily overcome) so I thought I would do it.  I read it as part of my transnational networks research and found it wryly astute in capturing important similarities and differences in two normatively profoundly opposed networks.  Network theory is the hot topic these days in transnational law and politics … (update: thanks Instapundit for the Instalanche!)

A Must-See Documentary on the ICC

by Kevin Jon Heller

It’s called The Reckoning, and although I have not had a chance to see it yet — like New Zealand, Australia lags embarrassingly behind the Northern Hemisphere in getting movies, especially documentaries — I’ve heard nothing but good things.  It even made Sundance, a tremendous accomplishment for any documentary.  Here is the synopsis:

Late in the 20th century, in response to repeated mass atrocities around the world, more than 120 countries united to form the International Criminal Court (ICC)–the first permanent court created to prosecute perpetrators (no matter how powerful) of crimes against humanity, war crimes, and genocide. The Reckoning follows dynamic ICC Prosecutor Luis Moreno Ocampo and his team for 3 years across 4 continents as he issues arrest warrants for Lord’s Resistance Army leaders in Uganda, puts Congolese warlords on trial, shakes up the Colombian justice system, and charges Sudan’s President Omar al-Bashir with genocide in Darfur, challenging the UN Security Council to arrest him. Building cases against genocidal criminals presents huge challenges, and the Prosecutor has a mandate but no police force. At every turn, he must pressure the international community to muster political will for the cause. Like a deft thriller, The Reckoning keeps you on the edge of your seat, in this case with two riveting dramas — the prosecution of unspeakable crimes and the ICC’s fight for efficacy in its nascent years. As this tiny court in The Hague struggles to change the world and forge a new paradigm for justice, innocent victims suffer and wait. Will the Prosecutor succeed? Will the world ensure that justice prevails?

No matter what you think of Moreno-Ocampo and the ICC, The Reckoning is worth seeing.

Politics, Meet Bedfellows

by Kevin Jon Heller

I knew I wasn’t alone in arguing that Bashir deserves to be punished for his crimes:

Al-Qaeda number two Ayman Zawahiri urged the people of Sudan to prepare for guerrilla war and for President Omar al-Beshir to “repent,” in an Internet video message released on Tuesday.

Zawahiri said Beshir’s regime is “reaping what it sowed,” in reference to the International Criminal Court arrest warrant against the veteran Sudanese president this month on charges of war crimes over the conflict in Darfur.

“So will the Beshir regime take the path of Islam and jihad and abandon the political maneouvres, diplomatic ruses and international smooth-talking, which has not — and will not — bring anything other than disasters and tragedies?” Zawahiri said in the message, according to the US-based SITE Intelligence Group.

See, people from across the political spectrum support the warrant!

A Brief Note to Our Readers on Moderated Comments

by Kevin Jon Heller

I have received a number of emails from regulars complaining that their comments are being moderated.  They are, but not on the basis of their content.  Our comment system automatically flags any comment that contains a hyperlink, because spam comments always contain them.  We then have to manually approve the non-spam comments, which we try to do as soon as possible.

This has been a public-service announcement from your friends at Opinio Juris.

… And Now for a Look at What’s Happening Elsewhere in the World

by Dan Bodansky

More than 150,000 civilians under daily bombardment, with an estimated 2800 already dead (including 500 children) and more than 7000 injured.  Water and medicine running short.  The advancing forces rejecting a cease fire.  And the UN High Commissioner for Human Rights raising concern about potential violations of international human rights and humanitarian law….. Sound familiar?  No, I’m not talking about the recent Israeli action in Gaza, but the current conflict in Sri Lanka – an unfolding humanitarian crisis that has received some coverage here in England (for example, in the Guardian and Times), but apparently little in the United States (although since I’m 4000 miles away, I’m perhaps not in the best position to judge).

According to a story in yesterday’s Guardian:

“Tens of thousands of people are caught between the last 1,500 fighters of the Liberation Tigers of Tamil Eelam (LTTE) and the advancing troops of the Sri Lankan army. The civilians are trapped on a thin strip of land – estimated at 13.5 square miles (35 square kilometers) – on Sri Lanka’s north-east coast. The UN warns that if people stay they risk being killed by government shells and if they try to leave they will be in danger of being shot by the Tigers. Diplomats say there is a real danger that a bloody denouement to the 25-year-old civil war could result in an ‘all-out humanitarian catastrophe’.”

In response to international criticisms, Palitha Kohona, Sri Lanka’s foreign secretary, said that international law does permit a “proportionate response.” “This is not a situation comparable to Darfur or the western Congo. This is a terrorist organisation holding its own people as hostages.”

Meanwhile, Human Rights Watch, while condemning the Tamil Tigers for using civilians as human shields, has also criticized government forces for engaging in “indiscriminate shelling” of civilians.

In a further escalation of the tensions, the BBC today reported that the Sri Lankan government has accused humanitarian groups of harboring terrorists and of seeking to prolong the war for their own economic gain.

Protecting the Environment During Wartime

by Dan Bodansky

Thanks to Peggy for her introduction.  It’s a great pleasure to have the opportunity to guest blog on Opinio Juris, which I think has become essential reading for international lawyers.  Just recently I heard an ICC prosecutor remark how much his office had been influenced by Kevin Heller’s post criticizing the Pre-Trial Chamber’s decision on the genocide charges in the Bashir case – a remark confirmed by the Prosecutor’s application for leave to file an appeal, which cites Kevin’s post.

A few weeks ago I had the opportunity to participate in an ‘experts meeting’ on protecting the environment during wartime.  (I put the phrase in quotes since I”m not sure that I qualify.) The implicit assumption at expert meetings like the one I attended is that the solution to problems such as the environmental effects of war generally involves more law. But is protecting the environment during wartime primarily a legal problem?  Of course, in some cases, the answer is yes. The intentional burning of Kuwaiti oil wells by Saddam Hussein at the end of the 1991 Gulf War is the type of environmental harm susceptible to legal responses through rules proscribing the wanton infliction of environmental damage together with the imposition of criminal and/or civil liability.  But events such as this are comparatively rare.  And even the Kuwaiti oil fires, terrible though they were, had more transitory and less severe effects on the environment than originally expected.

ICC Shuffles the Deck — With Interesting Implications for Bashir (UPDATED)

by Kevin Jon Heller

At their most recent meeting, the judges of the ICC rearranged the composition of the Court’s three Divisions.  The new composition is as follows:

The judges assigned to the Pre-Trial Division are: Judge Hans-Peter Kaul (Germany), Second Vice-President of the Court; Judge Sylvia Steiner (Brazil); Judge Ekaterina Trendafilova (Bulgaria); Judge Fumiko Saiga (Japan); Judge Sanji Mmasenono Monageng (Botswana); and Judge Cuno Tarfusser (Italy).

The judges assigned to the Trial Division are: Judge Fatoumata Dembele Diarra (Mali), First Vice-President of the Court; Judge Elizabeth Odio Benito (Costa Rica); Judge René Blattmann (Bolivia); Judge Sir Adrian Fulford (United Kingdom); Judge Bruno Cotte (France); Judge Joyce Aluoch (Kenya); and Judge Christine Van den Wyngaert (Belgium).

The judges assigned to the Appeals Division are: Judge Sang-Hyun Song (Republic of Korea), President of the Court; Judge Akua Kuenyehia (Ghana); Judge Erkki Kourula (Finland); Judge Anita Ušacka (Latvia); and Judge Daniel David Ntanda Nsereko (Uganda).

What is particularly interesting about the new composition is that two of the judges that ruled on Bashir’s arrest warrant — Judge Kuenyehia and Judge Usacka — are now in the Appeals Division.  They will obviously have to recuse themselves from the Prosecution’s appeal, which means that the genocide issue will be decided by a bare majority of the Division.  That is unfortunate, because a decision by the full five-judge Appeals Chamber, whether yea or nea on genocide, would likely be seen as more fair than a three-judge decision, especially if the three judges don’t reach a unanimous conclusion.  I’m just glad that Judge Ntanda Nsereko has been assigned to the Appeals Division and will hear the appeal — he is an exceptional international criminal law scholar and will no doubt be an equally exceptional appellate judge.

UPDATE: My friend Don Taylor, a legal officer at the ICTY, points out in the comments that Regulation 12 of the ICC’s Regulations of Court would require the appointment of two additional judges from the other Divisions to replace Judge Kuenyehia and Judge Usacka on the arrest-warrant appeal, which would eliminate my “bare majority” concern.  As Don also points out, though, new appointments would not completely eliminate my concern about perceived fairness.  I cannot find anything in the Statute or Rules or Regulations that explains how the Presidency chooses the replacement of a disqualified judge.  In a situation like this, random selection (even if limited to judges with the appropriate expertise) would obviously be desirable, to avoid charges that the Presidency “stacked the deck” to ensure a particular outcome on the arrest-warrant appeal (whether for or against the appeal).

Readers?  Don?  Anyone know how replacements are chosen by the Presidency?

A Dissenting View on Paul Kagame

by Kevin Jon Heller

I have been reading Roger’s fascinating missives from Rwanda with great interest and agree with much of what he has to say.  But I have to demur from the claim that “Kagame is personally invested in making Rwanda a country that is committed to reconciliation, human rights and self-sufficiency.”  Self-sufficiency, perhaps — there is no question that Rwanda has experienced significant economic growth over the past decade, although it is important to emphasize that, according to USAID, “[a] majority of the population lives on less than $1 per day and nearly nine in ten live on less than $2 per day.”

As for Kagame’s investment in reconciliation and human rights?  Here is the summary paragraph from the State Department’s 2008 Country Report on Rwanda — which was one of its better years:

Significant human rights abuses occurred, although there were improvements in some areas. Citizens’ right to change their government was restricted, and local defense forces (LDF) personnel were responsible for four killings during the year. Violence against genocide survivors and witnesses by unknown assailants claimed at least 16 lives. There were reports of torture and abuse of suspects, although significantly fewer than in previous years. Prison and detention center conditions remained harsh. Security forces arbitrarily arrested and detained persons. Prolonged pretrial detention was a problem, and government officials attempted to influence judicial outcomes, mostly regarding the community-based justice system known as gacaca. There continued to be limits on freedom of speech and of association, and restrictions on the press increased. The government limited religious freedom, and official corruption was a problem. Restrictions on civil society, societal violence and discrimination against women, recruitment of child soldiers by representatives of a Democratic Republic of the Congo (DRC)-based armed group, trafficking in persons, child labor, and restrictions on labor rights occurred.

As for democracy, if Rwanda gets good marks, it’s only because the bar is set so low in the region…

Mobilizing the Rwandan Church to Protect Human Rights

by Roger Alford

Rwandan President Paul Kagame is personally invested in making Rwanda a country that is committed to reconciliation, human rights and self-sufficiency. Toward that end, Kagame is seeking to mobilize the most powerful social force in his country—Rwandan pastors—to protect human rights and pursue forgiveness in a country that has much to forgive. In 2005 Kagame partnered with Rick Warren of Saddleback Church to develop a plan of action. As Time magazine noted, “Kagame has committed his government to cooperation in a five-to-seven-year self-sufficiency project staffed by Rwandan volunteers but initiated, advised and at least partly funded by Warren’s network of ‘purpose-driven churches.’”

I have spent the last two weeks working with a team of Saddleback lawyers who are implementing this impressive program. Having met with Supreme Court and High Court judges, Ministry of Justice officials, and over sixty of the top Rwandan pastors in the country, I am convinced that in a country where 82 percent of the population are Christians, there is no better vehicle for educating the general populace about human rights than the local church. At the invitation of President Kagame, Saddleback Church has been sending hundreds of volunteer professionals–doctors, nurses, lawyers, psychologists, etc.–to work with local churches to address Rwanda’s most pressing problems.

On the legal front, top government officials have identified three central problems: intra-family land grabbing, domestic violence, and sexual crimes. To address those problems, lawyers from Saddleback Church have drafted a human rights manual for local pastors they can use to educate their members about those issues. They have started with the issue of land grabbing, and future manuals will be developed that focus on domestic violence and sexual crimes.

Welcome to Guest Blogger Dan Bodansky

by Peggy McGuinness

Opinio Juris is pleased to welcome back Professor Dan Bodansky as a guest blogger with us over the next two weeks.  Dan is currently a Visiting Fellow at Oxford University, Smith School of Enterprise and Environment, and his home institution is the University of Georgia Law School where he is the Associate Dean for Faculty Development and Woodruff Professor of International Law.  He is a renowned expert on the law and politics of global climate change. In addition to his extensive writing on the subject, Dan held the position of Climate Change Coordinator for the U.S. State Department.  He is the co-editor of the Oxford Handbook of International Environmental Law. We look forward to Dan’ s visit!

The Greatest Quote Ever…

by Kevin Jon Heller

I just can’t resist:

There are two novels that can change a bookish fourteen-year old’s life: “The Lord of the Rings” and “Atlas Shrugged.” One is a childish fantasy that often engenders a lifelong obsession with its unbelievable heroes, leading to an emotionally stunted, socially crippled adulthood, unable to deal with the real world. The other, of course, involves orcs.

Courtesy of Kung Fu Monkey.

Genocidal Intent and the Irony of Expelling the Humanitarian Groups

by Kevin Jon Heller

In its application for the arrest warrant, the Prosecution argued that the Sudanese government’s genocidal intent could be inferred from, inter alia, the slow-death conditions in the IDP camps.  As part of that claim, the Prosecution pointed out the numerous ways in which Bashir’s regime had hindered international efforts to provide the Darfuris in the IDP camps with humanitarian assistance.

One of the least compelling aspects of the Pre-Trial Chamber’s decision — and that is saying something — is its casual dismissal of that argument.  The PTC begins by pointing out, rightly, that “hindrance of humanitarian assistance, as well as cutting off supplies of food and other essential goods, can be carried out for a variety of reasons other than intending to destroy in whole or in part the targeted group.”  It then offers the following “argument” as to why the “systematicity, duration and consequences of the alleged GoS obstruction” is insufficient to support an inference of genocidal intent:

184. In relation to the extent, systematicity, duration and consequences of the alleged GoS hindrance of medical and other humanitarian assistance needed to sustain life in the IDP Camps in Darfur, the Majority observes that in the additional materials provided by the Prosecution, at the request of the Chamber on 18 November 2008, the Prosecution included a chronology on the evolution of thisalleged GoS practice from 2003 to the end of 2007.

185. According to the reports included in this chronology, the higher level of obstruction to humanitarian aid took place during the first year of the conflict until June 2004, at a time in which GoS forces appear to have launched their two main offensives (summer 2003 and January 2004). The lack of humanitarian assistance is explained in some reports by the GoS’s attempt to hide the magnitude of the crisis. Yet, in one of the reports, the United Nations Office for Humanitarian Affairs emphasised the late reaction and lack of coordination of the international community…

Holbrooke Promised Karadzic He Wouldn’t Be Prosecuted

by Kevin Jon Heller

That is the conclusion of the most comprehensive study of the issue to date, “Confronting the Yugoslav Controversies: A Scholars’ Initiative,” conducted by Purdue University.  From the New York Times, which held follow-up interviews with some of the sources cited in the study:

Charles W. Ingrao, the study’s co-editor, said that three senior State Department officials, one of them retired, and several other people with knowledge of Mr. Holbrooke’s activities told him that Mr. Holbrooke assured Mr. Karadzic in July 1996 that he would not be pursued by the international war crimes tribunal in The Hague if he left politics.

Mr. Karadzic had already been charged by the tribunal with genocide and other crimes against civilians.

Two of the sources cited anonymously in the new study, a former senior State Department official who spent almost a decade in the Balkans and another American who was involved with international peacekeeping there in the 1990s, provided additional details in interviews with The New York Times, speaking on condition that they not be further identified.

The former State Department official said he was told of the offer by people who were close to Mr. Holbrooke’s team at the time. The other source said that Mr. Holbrooke personally and emphatically told him about the deal on two occasions.

While the two men agreed, as one of them put it, that “Holbrooke did the right thing and got the job done,” the recurring story of the deal has dogged Mr. Holbrooke.

[snip]

Mr. Ingrao said Mr. Holbrooke used Slobodan Milosevic, then the Serbian leader, and other Serbian officials as intermediaries to convey the promise of immunity and to reach the deal with Mr. Karadzic.

“The agreement almost came to grief when Holbrooke vigorously refused Karadzic’s demand, and Hill’s appeal, that he affix his signature to it,” the study says, citing unidentified State Department sources.

The study, the product of eight years of research by historians, jurists and social scientists from all sides of the conflict, was an effort to reconcile disparate views of the wars that tore the former Yugoslavia apart in the 1990s, Mr. Ingrao said.

[snip]

The American who was involved in peacekeeping insisted in an interview that Mr. Holbrooke himself told him that he had made a deal with Mr. Karadzic to get him to leave politics. He recalled meeting Mr. Holbrooke in Sarajevo, Bosnia, on the eve of Bosnian elections in November 2000, just after Mr. Milosevic had finally been ousted from power in Serbia.

Mr. Holbrooke was worried about the outcome of the Bosnian vote because he knew that Mr. Karadzic was still secretly running his nationalist political party and picking candidates, including mayors and police chiefs who had run prison camps and organized massacres.

“Holbrooke was angry; he was ranting,” the American recalled. He quoted Mr. Holbrooke as saying: “That son of a bitch Karadzic. I made a deal with him that if he’d pull out of politics, we wouldn’t go after him. He’s broken that deal and now we’re going to get him.”

Mr. Karadzic’s party won those elections in the Bosnian Serb republic. Shortly afterward, he disappeared from public view.

Not surprisingly, Holbrooke continues to insist that “[n]o one in the U.S. government ever promised anything, nor made a deal of any sort with Karadzic.”  Such intransigence appears increasingly desperate — indeed, Holbrooke refused the New York Times‘ request to comment on the study’s allegations.  After all, who are you going to believe: a study with no partisan axe to grind, or someone who has every incentive to lie?

P.S. As is usually the case, the New York Times‘ article incorrectly describes the Holbrooke-Karadzic deal as an “immunity agreement.”  The deal is more accurately described as an agreement not to prosecute in exchange for Karadzic’s cooperation — no different than a prosecutor who promises a criminal who “flips” that he won’t be prosecuted in exchange for his testimony against his higher-ups.  Readers interested in the legal arguments for why the agreement might be enforceable against the ICTY should read the defence motion here.

P.P.S. In case there are any readers out there who don’t know, I am currently serving as one of Dr. Karadzic’s legal advisers.  All the normal caveats about bias thus apply.

“In a World Where Arms Merchant Videos are Bad, They Dared to Make the Worst…”

by Chris Borgen


Pardon the title of this post being a somewhat-obscure allusion to the standard trope of movie-trailer voice-overs, but over at Danger Room, they are well under way in their Iron Eagles search: their “celebration of the most awesomely-bad videos of the military industrial complex.” Videos that often mix bad animation, worse narration, explosions, and weaponry statistics. But, for my money, they have found a video that may be impossible to top. Here’s their description:

Let’s say you’re a defense-company marketing executive. And you want to make a splash at the Indian defense ministry’s annual air show. Do you: (a) buy expensive gifts for New Delhi’s generals; (b) treat the press to Kingfishers and samosas; (c) produce a Bollywood-esque video featuring bare-midriff girls, flower-draped missiles, and the catch phrase “dinga dinga dee?”

Unfortunately for us, Israeli arms-maker Rafael chose C. Which means we may have just found the most atrocious defense video of all time…

I don’t know if there’s a real substantive point here. Who am I fooling? I don’t have a substantive point here. Just check out the video. And there are some other great (meaning “horrible”) examples at the Iron Eagles link, above.

In Another Reversal of Bush Administration, U.S. Signs UN Declaration on Homosexual Rights

by Peggy McGuinness

Earlier this week, the U.S. became the 66th UN member state to sign on to the Statement of Human Rights, Sexual Orientation, and Gender Identity. This is another departure from the Bush-era human rights policy, albeit a symbolic one.  And, as Dianne Amann’s post at IntlawGrrls implies, it’s pretty amazing symbolism.   The Statement is the first UN declaration to address the issue of gay rights. (IntlawGrrls has the full text of the Statement here.)

The declaration is not a binding legal instrument, but even that was too far for the Bush State Department which used federalism — invoking the rights of individual U.S. states to make laws regarding gay rights — as an excuse to demur on the declaration when it was presented last December.   Setting aside the old chestnut of whether the federal government can accomplish through treaty what it cannot accomplish through federal statute, this struck me as a pretty weak case in which to raise a federalism concern.  It’s not a treaty and it’s not binding.  No law is created by the U.S. signing onto these principles.  Of course, federalism can be a handy cover to avoid taking a position on an issue that upset parts of the President’s political constituency, or to mask actual opposition to gay rights.  The AP quoted a current  administration official explaining the new approach:

Talk About “Off-Shore Banking…”

by Chris Borgen

 Financial crisis getting you down?  You can always move your money to the virtual world of the Planet Calypso:

Interstellar banking isn’t here yet, but at least you can pretend. The publisher of the online science-fiction game “Entropia Universe,” set on the planet Calypso, received a banking license from the Swedish Financial Supervisory Authority last week and plans to open a real bank within a year, albeit one without physical, walk-in branches.

Players of “Entropia” already exchange real money for a virtual currency that is used for their expenses on Calypso. And virtual money they make in the game, through hunting, mining, trading or other activities, can be cashed out into real money. The virtual currency, Project Entropia Dollars, has a fixed 10-to-1 exchange rate to the U.S. dollar.

The Entropia bank will provide a wide variety of services:

like interest-bearing accounts, direct deposit of paychecks, bill payment and lending, said David Simmonds, the company’s business development director.

The company isn’t clear on what type of lending it will engage in, but Simmonds said it wasn’t planning to make the sort of risky investments that have foiled other banks.

However, for all the talk of new “virtual” economies, we need to keep in mind that they are very much rooted (at least for now) int he real world. Deposits in this virtual bank will be guaranteed by the Swedish government’s deposit insurance for up to $60,000 per customer. As this is a government-licensed bank,

regulators will gain more insight into possible money laundering in the virtual world. Simmonds said the company is already keeping an eye out for such activities.

So, I wouldn’t get too excited about escaping the financial crisis in a virtual world, but an interesting development nonetheless.

Belated Hat Tip: io9

Wronging Rights on the Warrant for Bashir

by Kevin Jon Heller

The following is a guest post written by Kate Cronin-Furman and Amanda Taub, the brains behind the must-read blog wronging rights.  My thanks to them for contributing it.

Two weeks ago, Pre-Trial Chamber I of the International Criminal Court issued a warrant for the arrest of Sudanese President Omar Hassan al-Bashir.  (We’re sure you all remember; it was kind of a big deal.)

International lawyers, human rights activists, talking heads, and bloggers have spent the intervening time scrutinizing the warrant and its implications. Reactions have ranged widely -from “This is literally the worst idea ever” to “This presages an end to impunity and the dawn of a new age of peace and justice”- but all share a conviction that this warrant is Serious Business. Bashir thinks it’s serious enough to merit kicking out nearly half of Darfur’s humanitarian aid providers, thereby endangering millions of civilians’ lives.  And any number of compassionate and thoughtful lawyers (Hi Kevin!) and human rights activists, aware of the risk to the population of Darfur, thought the warrant was important enough to push ahead anyway.

ICC prosecutor Luis “I Am the Law and the Law Is Not Mocked” Moreno-Ocampo lost no time before demanding that all of the UN’s member states enforce the warrant, and insisting that all of the States Parties to the ICC were legally required to do so.  Lest there be any doubt, Moreno-Ocampo told the international press that “as soon as al-Bashir travels through international airspace, his plane can be forced down and he can be arrested. That is what I expect.”

Funny how he left out the “as soon as Sudan gives permission” part.

In fact, no State Party to the ICC can act upon the warrant, because Bashir is a sitting head of state. Obviously, that doesn’t deprive the ICC of the right to try him. ( Art. 27(2) of the Rome Statute expressly states that head-of-state immunity won’t bar the court from exercising jurisdiction.)  But it does prevent the Court’s warrant from having any legal effect outside of Sudan, because Articles 98(1) and 59(2), respectively, bar arrests that violate international law, and provide a basis for arrestees to challenge their detention in court.

Article 98(1) expressly prohibits states from cooperating with arrest warrants that would violate international law “with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.”

It’s pretty clear that Bashir, as President, falls squarely within that persons-with-diplomatic-immunity category. And there can be little question that the arrest would violate international law: in Congo v. Belgium, the ICJ held that a state’s issuance of an arrest warrant for another state’s incumbent foreign minister was a violation of its obligation under international law to respect his immunity from criminal jurisdiction.  Theoretically, the ICC could disagree, and find that the gravity of Bashir’s crimes stripped him of his protected status under international law. Judge ad hoc Van den Wyngaert’s dissent to the Congo v. Belgium decision, which chastised the Court for failing to “give[] more thought and consideration to the balancing of the relative normative status of international jus cogens crimes and immunities,” would be a good place for them to start. But such a holding would render Art. 98(1) meaningless, by automatically stripping the protections of international law from anyone subject to an ICC warrant, and therefore seems a bit dodgy as a matter of treaty interpretation. So, to sum up: Bashir is entitled to immunity, and the ICC’s own statute expressly says that it must be respected, so the warrant’s power is nullified.  It doesn’t grant any state authority to arrest Bashir, whether he is in ‘international airspace’ or not, unless his own government (read: Bashir himself) waives his immunity. That scenario’s only slightly slightly more likely than a flying pig snatching up Bashir in its delicate trotters and winging him north to The Hague, so he can probably travel to Qatar at the end of the month without much worry.

However, there are a couple of ways Bashir could end up on trial without aero-porcine intervention.  The most exciting possibility would be for someone to abduct him, Eichmann-style, and drop him on the ICC’s doorstep.  The Rome Statute doesn’t contain any prohibitions on the exercise of jurisdiction over someone who has been kidnapped, so it’s quite likely that the doctrine of male captus, bene detentus (“wrongly captured, properly detained”) would apply.

Alternately, if Bashir traveled to a state with a universal jurisdiction statute, he could be arrested on a domestic warrant issued under that law.  Presumably, the arresting state could then determine that it is “unwilling or unable” to prosecute him within the terms of the Rome Statute and hand him off to the ICC, which could again invoke male captus, bene detentus, and hang onto him.  The relevant precedent would come from Prosecutor v. Nikolic, where the ICTY held that an illegal arrest did not bar the court from exercising jurisdiction unless there had been “egregious violations” of the rights of the accused, and/or reason to believe that the prosecutor was involved in the abduction.

That kind of arrest would violate the Congo v. Belgium holding, so Sudan could sue the arresting state at the ICJ. But if Bashir had already been sent to the Hague, the damage would be done.  (It might provoke an exciting constitutional crisis among the international courts if the ICJ tried to order the ICC to give Bashir back, though.  And we’ve all been waiting for this non-hierarchical international tribunal system to get ugly at some point anyway.)

We’re guessing Bashir has already gotten someone to google which states have universal jurisdiction statutes, and is therefore unlikely to head to Belgium to sample the moules frites any time soon.  But it may be that the warrant’s true power is political, not legal. It could operate as an appealing door prize for a coup: “depose your president, pick up his convenient incarceration at The Hague on your way out!”* No need to even bother with an assassination and the attendant opprobrium from the international community.

So it looks like Moreno-Ocampo will have to pin his hopes on political, rather than legal, processes if he wants to see Bashir’s face anytime soon. That is, unless anyone wants to get to work on a hyper-intelligent pig-eagle hybrid. Anyone?

*Some infighting, civil unrest, and unraveling of key peace agreements may apply<–>

Still Thinking About That Gitmo Brief?

by Deborah Pearlstein

The Administration’s filing last week of a brief outlining its big-picture view of which Guantanamo detainees may be lawfully detained has sparked a vigorous – and I think productive – debate among international legal experts, human rights lawyers, and listserv participants on and off the blogosphere. So let me take the occasion to throw out a few recent articles/resources relevant to the whole debate that might be of use. And then a few other thoughts of my own.

Clearly on the reading list should be (Harvard prof) Ryan Goodman’s forthcoming piece in the American Journal of International Law. It’s a rich, rigorous, and directly-on-point assessment of what international humanitarian law does (and does not) say regarding the “preventive” detention of civilians caught up in the course of armed conflict. Among other key debates, Goodman takes on the notion (reflected to an extent in the recent Obama brief) that one can analogize readily from IHL rules governing targeting to (in some cases implied) rules governing detention.

Just as timely, but substantially more oriented to U.S. law and policy, is a forthcoming piece by Matt Waxman called, aptly enough: “Administrative Detention of Terrorists: Why Detain, and Detain Whom?” (Recall that one of Matt’s earlier works, “Detention as Targeting,” aimed rather directly to apply targeting rules to existing detention dilemmas.) The “whom” part starts on page 17. What does it conclude? Hint: the article is aimed at “reframing,” not necessarily at taking a position. Nonetheless, those looking for potential models for administrative detention will find a useful list of choices here…

The Long Shadow of Genocide

by Roger Alford

I have been traveling throughout the country the past few days meeting with dozens of leaders discussing the past and future of Rwanda. The meetings have been incredibly hopeful and positive and there is an undeniable optimism about the direction of the country.

But wherever one goes one cannot escape the long shadow of genocide. It continues to impact the fabric of the country in ways small and big. Last week we visited the National University of Rwanda in Butare and met with the dean, law faculty and law students. Dean Didas Kayihura is doing wonderful work at NUR and I greatly enjoyed speaking with the students there. They had numerous insightful questions about international criminal law, universal jurisdiction, and the ICC.

We spent time at the law school’s legal aid clinic to hear some of the stories of the poorest of the poor in Rwanda….

Executive Watch, Welcome to the Blogosphere

by Duncan Hollis

Duke Law School’s Program in Public Law recently started a new blog, Executive Watch.  According to the Duke Press release, it will feature “news stories and commentary about executive-branch actions, including executive orders, presidential memos, and signing statements.”  The blog may be of interest to our readers as, in addition to issues of domestic authority, it will address perennial topics in U.S. foreign affairs law, including the commander-in-chief power and executive relations with Congress.  So far, the blog has included an informative weekly post collecting web commentary on executive authority, as well as several posts comparing Obama administration practices to earlier administrations.  Christopher Schroeder is spearing the effort, along with contributors from Duke and other law schools, including Curtis Bradley, Guy-Uriel Charles, Cynthia Farina, Neil Kinkopf, Bill Marshall, Neil Siegel, Peter Shane, Peter Strauss, and Julian Yap, and the support from Duke Law students.

Hat Tip: Bobby Chesney   

In Defense of Alex de Waal

by Kevin Jon Heller

A reader has left a comment to my previous post in which he alleges that Alex tipped off Bashir that the OPT was going to seek his arrest and speculates that Alex might have promised Bashir to oppose the genocide charges.

I have reluctantly left the comment up, because I don’t believe that it is my role as a blogger to police the comments to my posts.  That said, I want to make one thing absolutely clear: the commenter’s allegations are completely ridiculous and unequivocally false.  I have very significant disagreements with Alex about whether Bashir is legally responsible for genocide in Darfur, and I did not pull any punches in my previous post.  But I have nothing but respect for Alex — very few people in this world can rival his expertise or his commitment to improving the lives of ordinary Darfuris.  I believe that I am right where Alex and I disagree — as my mentor, Stanley Fish, once said, it’s impossible not to believe what you believe.  But I freely confess that I always think twice before I disagree with Alex, and when I do disagree with him, I do so with trepidation.  That is the highest compliment I can pay someone.

We are all better off for Alex’s work, as angry as it often makes some of us.  I hope I will have the privilege of disagreeing with him for a very long time.

Alex de Waal’s Legally and Factually Challenged Attack on the Prosecutor

by Kevin Jon Heller

Alex de Waal criticizes Moreno-Ocampo”s decision to appeal the genocide issue today at his blog Making Sense of Darfur.  It’s a nasty and remarkably patronizing post.

It also exhibits not even a shred of understanding of the Rome Statute or the Prosecution Application.

Here is what de Waal writes:

I was surprised to learn that the Prosecutor of the ICC is seeking leave to appeal against the Pre-Trial Chamber’s decision to not to charge President Omar al Bashir with genocide. The Prosecutor’s complaint seems to resemble that of a student who has been given a fail grade, arguing that the examination board should have set the mark needed for a pass at 25% and not 50%. Much better for the Prosecutor to rest content that he managed to get an arrest warrant and quietly forget about his ‘ongoing genocide’ claims.

The judges of the Pre-Trial Chamber wrote in Paragraph 111 of their Decision:

[T]he Prosecution acknowledges that (i) it does not have any direct evidence in relation to Omar Al Bashir’s alleged responsibility for the crime of genocide, and that therefore (ii) its allegations concerning genocide are solely based on certain inferences that, according from the Prosecution, can be drawn from the facts of the case.

They went on to show that genocidal intent was not the only reasonable inference from the evidence presented, contrary to the Prosecutor’s claims. This was surely the correct decision. The evidence presented in the application is thin and the logic is replete with errors. If new evidence comes to light then the judges may revise the charges (as they have done, for example, with the Bemba case). That is of course standard.

Someone does indeed deserve a failing grade — but it’s not Moreno-Ocampo…

Deglobalization and the Road to . . . War

by Peter Spiro

Paul Krugman’s Friday column has to weigh heavily on anyone with a 7-year-old boy. The parallels are clear, at least on the back end. Krugman is hardly the first to play the Norman Angell card. Angell’s ill-timed proclamation of the end of war in the run-up to the Guns of August figures prominently in the opening chapter of Walter Russell Mead’s God and Gold; Mark Movsesian was way ahead of the curve, at 18 Cardozo L. Rev. 1092 (1996). Deep globalization didn’t prove much of a trip wire on the way to WWI. See also this snippet from Robert Keohane in the latest Foreign Policy (“In the 1930s, economic crisis led to Nazism in Germany and militarism in Japan. We must not overlook the threat that global economic crisis could again have malign effects on world politics”).

Let’s hope Moses Naim and the rest of us who think that globalization is different this time around have the better of the argument. But even assuming conflict along state lines were a probable result of this crash, as it was for the last, there are still major questions about what form that conflict would take. Could we possibly see a return to massive armies hurtling themselves at each other on defined battlefields? I’d be willing to engage suggestions to that effect, but it seems intuitively unlikely against the backdrop not just of nuclear weapons but also of the battlefield robots that all Ken Anderson fans will be familiar with. (Nor would it look like the asymmetric warfare we saw during Cold War sideshows and now in Iraq and Afghanistan.) So what’s the alternative? The image that comes to my mind, perhaps only metaphorically, is the London of 1984, in which missiles precipitate on a random basis.

The economy — not terrorism — is now the biggest security threat, and thank goodness that this Administration recognizes it. I wonder how their scenario planning (aka war games) is playing out. Maybe I don’t have to worry about my 7-year old in any particular way, though I’m not sure how much consolation that is.

Eddie Izzard on Genocide

by Kevin Jon Heller

Michelle at Stop Genocide reminded me of this fantastic riff on empire and genocide from the incomparable Eddie Izzard:

Remarkably insightful stuff.  Watch it!

Internal Conflict in the Sudanese Government?

by Kevin Jon Heller

In public, Sudanese government officials have uniformly defended Bashir against the supposed depredations of the ICC.  According to the Institute for War & Peace Reporting, however, they tell a different story in private:

A minister with the president’s National Congress Party, NCP, said that members were left reeling by the announcement of an arrest warrant issued against Bashir by ICC judges on March 4 for atrocities in Darfur.

“We received the court’s decision [to indict Bashir] in shock and disbelief without having any specific strategy to face it,” said the minister, under conditions of anonymity.

He told IWPR that tentative discussions have begun about who should replace Bashir as head of state.

“[The party is] trying to appear united in public, but I am afraid this is not the case,” he said.

[snip]

But according to a minister from another party, who also preferred not to be named, the president’s position has been seriously undermined by the arrest warrant.

“[Bashir’s] position has become [affected] and he doesn’t enjoy respect – [he] is now labelled with war crimes and crimes against humanity,” he said.

“He is becoming a burden to his party, and internally, within the NCP, discussions have started [as to what should be done].”

Although Bashir’s supporters say he must stay in place to oversee peace deals, national elections planned for later this year and a 2011 referendum on self-rule for South Sudan, the minister said that Bashir was no longer a credible leader.

He said that by failing to engage with the ICC and the international community at an earlier stage, the president missed a chance to avert the arrest warrant.

“A few months ago, we had a better chance to bargain and negotiate a settlement with the international community,” he said.

It is far too soon, of course, to start an office pool around the date Bashir will be turned over to the ICC.  But as the article makes clear, not even a preening tyrant like Bashir is immune from the effects of being branded an international criminal.  The arrest warrant will probably never be executed, as its critics never tire of reminding us.  That does not mean the ICC’s willingness to issue the warrant does not have positive effects.  The article mentions a critical one: an erosion of support for Bashir in the Sudan.  Another, with luck, will be the reduced willingness (or ability) on the part of countries like China and Russia to do business with Bashir.

To be sure, Bashir’s ouster would not be a panacea for Darfur’s ills.  There is no question that Bashir’s most likely successors are just as bloodthirsty as he is.  That said, whoever ultimately replaced him would have to think twice about continuing his genocidal policies.  After all, the new President would know all too well how that could turn out…

No More “Enemy Combatants”?

by Deborah Pearlstein

The Obama Administration selected Friday afternoon (go figure) to release its whammy of a brief on the standard it believes should govern the President’s authority to hold the current Guantanamo detainees.

Here’s the key paragraph:

The President has the authority to detain persons that the President determines
planned, authorized, committed, or aided the terrorist attacks that occurred on
September 11, 2001, and persons who harbored those responsible for those attacks.
The President also has the authority to detain persons who were part of, or
substantially supported, Taliban or al-Qaida forces or associated forces that are
engaged in hostilities against the United States or its coalition partners, including any
person who has committed a belligerent act, or has directly supported hostilities, in
aid of such enemy armed forces.

How is this different from the Bush position? In at least several ways. (1) The President’s authority to hold the detainees flows not from some inherent constitutional authority, but by the statute passed by Congress in the wake of September 11, 2001 – the Authorization for the Use of Military Force (AUMF). The first sentence of the definition above is essentially verbatim a recitation of that statute. (2) The meaning (and limits) of the AUMF is, as the administration brief explains repeatedly, “necessarily informed by principles of the laws of war.” That is, international law matters in interpreting the scope of this domestic law. It is possible that the Bush administration said as much on occasion (can anyone cite an example?). But its reading of international law generally (and international humanitarian law in particular) was so idiosyncratic that it was hard to take such statements seriously. (3) As the DOJ’s press release statement notes, the brief doesn’t use the term “enemy combatant” so it’s no longer meaningful/ relevant to the legal discussion. (4) As the brief also says, its statement of the standard here may be subject to further refinement following the completion of its ongoing task force review of detention policy and standards.

What’s still unclear? The nubbin is in the second sentence. The Bush Administration’s enemy combatant definition was generally this: “an individual who was part of or supporting Taliban or al Qaida forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.” The new standard: “persons who were part of, or substantially supported, Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces.” Under Obama, now an individual has to have substantially supported – not just “supported” Taliban or Al Qaeda forces. What’s the difference? Perhaps something promising, but it’s hard to say. Other than that, the standards are identical. As the brief says: “the contours of the ‘substantial support’ and ‘associated forces’ bases of detention will need to be further developed in their application to concrete facts in individual cases.”

In all events, here’s perhaps cold comfort for all those who’d argued the administration should have pursued the Al Marri case (the non-citizen detained as an enemy combatant in the United States who was recently, grace a Obama, finally charged with a crime and transferred back to civilian custody) all the way to the Supreme Court. The Obama administration may well have argued that the AUMF gives the President the authority to detain individuals picked up in the United States as (if not enemy combatants in name) AUMF detainees. As the brief says: “The AUMF is not limited to persons captured on the battlefields of Afghanistan. Under a functional analysis, individuals who provide substantial support to al-Qaida forces in other parts of the world may properly be deemed part of al-Qaida itself. Such activities may also constitute the type of substantial support that, in analogous circumstances in a traditional international armed conflict, is sufficient to justify detention.” Such a view was in fact expressed in this key colloquy between Senator Lindsay Graham (R-S.C.) and U.S. Solicitor General nominee Elena Kagan at her Senate Judiciary Committee confirmation hearing.

“Do you believe we are at war?” Graham asked.
“I do, Senator,” Kagan replied.
Graham cited the example of someone who is not carrying a gun or fighting on a battlefield. “If our intelligence agencies should capture someone in the Philippines that is suspected of financing Al Qaeda worldwide, would you consider that person part of the battlefield?” he asked. He added that he had asked the same question of Holder, who replied that he agreed that person was on the battlefield.
“Do you agree with that?” the senator said.
“I do,” Kagan replied.

That said, I should back up and note there is at least one other statement in the brief that is, in my view, worth applauding.

Although the concept of “substantial support,” for example, does not justify the detention at Guantanamo Bay of those who provide unwitting or insignificant support to the organizations identified in the AUMF, and the Government is not asserting that it can detain anyone at Guantanamo on such grounds, the particular facts and circumstances justifying detention will vary from case to case, and may require the identification and analysis of various analogues from traditional international armed conflicts.

Why is this a good thing? Because this brief isn’t about U.S. policy toward detainees generally, or even U.S. policy toward detainees going forward. It’s about the U.S. litigating position toward the unique and woebegone detainees held at Guantanamo Bay – the sui generis set of folks for whom, thanks to the previous administration’s repeated violations of IHL on the books (inhumane treatment, inadequate status hearings, etc. etc.), there are now no good options left – only less bad ones. In undertaking the necessary task of resolving these impossible cases, it seems to me the administration’s brief should be read as an effort to do as little further violence to the law on the books as possible. In insisting the question of substantial support be resolved on a case by case basis, it is trying to avoid letting these hard Gitmo cases make bad law across the board going forward. Under the unique circumstances here, that is perhaps the best we can hope. Stay tuned.

The Prosecution Appeals the Genocide Issue — and They Cite Me!

by Kevin Jon Heller

I am happy to report — though some readers will no doubt be unhappy to hear — that the OTP has requested leave to appeal the Pre-Trial Chamber’s decision on the genocide charges.  The appeal cites my recent post on the majority’s misunderstanding of the “reasonable grounds” standard, which is both a tremendous honor and a testament to the ever-increasing visibility and importance of blogging.

The OTP’s appeal raises three issues:

1. Whether the “reasonable grounds” standard requires the Prosecution to prove that genocidal intent is the only reasonable inference from the evidence (paras. 15-17).

2. Whether the majority took irrelevant considerations into account when determining Bashir’s genocidal intent: the fact that a number of attacks on Fur, Massalit, and Zaghawa villages did not result in large numbers of injured and dead; the fact that the Prosecution did not allege that the Sudanese government had established long-lasting detention camps in Darfur; and the fact that the Prosecution did not allege that Haroun was reponsible for genocide in its application for his arrest warrant (paras. 18-22).

3. Whether the majority failed to appropriately weigh — individually and collectively — the nine factors that the Prosecution offered in support the inference of genocidal intent.

I don’t see how the OTP can lose on the first issue.  Regardless of what the Appeals Chamber thinks about the merits of the genocide charges, it simply cannot allow the majority’s elision of the difference between the “reasonable grounds” and “proof beyond a reasonable doubt” standards to stand — the consequences for the OTP’s ability to obtain arrest warrants in future cases could be catastrophic.

I also think the OTP has a strong argument on the second issue.  The first fact is irrelevant, because the application for the arrest warrant does not simply allege that Bashir is responsible for genocide by killing; it also alleges that he is responsible for genocide by subjecting the Fur, Massalit, and Zaghawa to conditions of life calculated to ensure their destruction.  The second fact is irrelevant because it does not matter where the members of a protected group are subjected to the conditions of life calculated to destroy them, as long as those conditions exist.  And the third fact is irrelevant because Haroun’s statements, as the OTP points out, “acquire genocidal significance in the context of Al Bashir’s use of the entire state apparatus to commit the crimes.”  (I would add that the PTC’s argument makes no sense.  I know of no principle in any system of criminal law that says a prosecutor who brings charges X and Y against a defendant is somehow collaterally estopped from later bringing charges A, B, and C against him.)

The third issue is the most difficult one.  Weighing multiple factors is a notoriously inexact science, if it even qualifies as a science at all.  Indeed, I don’t think the OTP is actually taking issue with the majority’s analysis; it simply disagrees — justifiably, in my opinion — with the majority’s conclusions.  It is thus very possible that the Appeals Chamber will give the OTP a Pyrrhic victory, holding (1) that the majority misinterpreted the reasonable-grounds standard, but (2) that the evidence in support of the application still falls short of establishing reasonable grounds.

I hope that doesn’t happen — but I would not be shocked if it does.  Stay tuned.

The Eurovision Song Contest Just Keeps Getting Better

by Chris Borgen

Last month, I wrote a post about the upcoming Eurovision song competition and European politics. I wanted to point out that the competition will be hosted by (and televised from) Moscow and that the Georgian entry was going to sing a disco song that teases Vladimir Putin called, ahem, “We Don’t Wanna Put In.” See it performed here.  

Anyway, in the final paragraph I asked who “would have expected Georgians finding a way to make fun of Putin on a TV show being broadcast from Moscow?”  I had spoken too soon.

The Contest’s Reference Group ruled that the Georgians had to change the lyrics because the existing lyrics broke the contest rules by being political. The rule in question states:

4.9 The lyrics and/or performance of the songs shall not bring the Shows or the Eurovision Song Contest as such into disrepute. No lyrics, speeches, gestures of a political or similar nature shall be permitted during the Eurovision Song Contest. No swearing or other unacceptable language shall be allowed in the lyrics or in the performances of the songs. No commercial messages of any kind shall be allowed. A breach of this rule may result in disqualification.

While this ruling came from a board that includes representatives from more than one state, I’ll leave it to you to decide whether anyone would have called Georgia on this if Russia had not been upset.

Anyway, Georgia refused to change the lyric and chose to withdraw instead. The Telegraph reports:

 “There really is nothing negative about this song,” lead singer Stephane said. “In any democratic country it would be taken as a harmless joke.”

In a letter sent to the EBU, the producers of the song said that they had their suspicions that the decision to ask Georgia to revise its entry came about as a result of pressure from Russia, where this year’s contest is to be held.

 In case you are interested, MSNBC reports that the chorus of the song is

“We don’t wanna put in,
Cuz negative move,
It’s killin’ the groove,
I’m gonna try to shoot in,
Some disco tonight,
Boogie with you.”

Regardless as to whether you think this song is “political” (or even just “sensical”) or not, did Russia really need to go to the mats on this (assuming that they pushed the issue)? As my previous post had mentioned, there are some interesting synergies between politics and the Eurovision song competition, and it seems that those linkages are especially pronounced for Russians.  A reporter for the BBC wrote that:

Russia’s main TV evening news ran a report the other day in which it praised the staging of the final as sign that “after decades of isolation, our country is finally returning to Europe and reclaiming the status of a superpower in politics and culture, including popular music, that rightfully belongs to it“.

[Emphasis added.]

Wow. Russia a pop music superpower? Really? That is a particularly tough claim to make since the Russian entrant in this year’s Eurovision song competition is actually Ukrainian. (Here’s her performance.) Wait… it gets better. The music was actually written by… a Georgian. And the lyric? Half was written by an Estonian. The BBC provides the context:

In the last 12 months, Russia has had a gas war with Ukraine, and a real war with Georgia. Two years ago, it had a bitter row with Estonia when that country moved a Soviet-era war memorial.

It would be hard to pick three former Soviet republics that have worse relations with their one-time masters in Moscow.

Maybe we should chalk this up to Russia wanting to kiss and make-up (well, besides possibly throwing the Georgian entry under the bus). Maybe not. The BBC continues:

The producer of one of the rival acts in the contest to represent Russia has exploded in patriotic outrage.

“Let’s get Ukrainian footballers to represent the Russian national team at the European football championships – Dynamo Kiev, for example, and a coach from Georgia,” Iosif Prigozhin told Ekho Moskvy radio. “It is all a bluff. It is all a farce.”

Some of the Moscow rush hour crowds seemed to agree.

“It’s not right that Russia will be represented with a song in the Ukrainian language. It’s just not right,” said Anna.

“Yes, it’s no good – after all, the Russian language is mighty and much nicer than Ukrainian,” agreed her friend.

Some may see in Russia’s multilingual, multinational effort an attempt to recreate a communist-era idea of “friendship of the peoples”.

Others sense a sophisticated scheme to draw the sting from any organised anti-Russian voting.

OK, who else smiled when the guy on the street said “the Russian language is mighty and much nicer than Ukrainian.” Yeah, dude, you tell ’em!

So, what have we learned?  Institutional membership, such as who gets to sit on the Eurovision Contest Board (or even institutions that receive less attention, such as the UN Security Council) can provide structural power. Eurodisco and punnery do not innoculate a song from being “political,” but they can be used to make your opponents seem like they have no sense of humor and are taking a song competition way, way, too seriously. We’ve also learned that Russia believes it has returned to its pop music superpowerdom. (See, that soft power stuff is pretty important after all. Take that, realists.) And it seems that Russian sounds much nicer than Ukrainian. Which, seriously, I never knew.

For me, the Eurovision Song Contest is like a gift that just keeps on giving.

International Law Weekend 2009: Call for Panels

by Peggy McGuinness

I pass along the following call for panels from the co-chairs of American Branch of the International Law Association’s International Law Weekend 2009. The theme, “Challenges to Transnational Governance,” is quite timely.  I encourage OJ readers to submit proposals and to attend what promises to be a great event.

On October 22-24, 2009, the American Branch of the International Law Association will hold its annual International Law Weekend in New York, bringing together hundreds of practitioners, members of the governmental and non-governmental sectors and students. The conference will feature numerous panels, Ms. Lucy F. Reed, President of the American Society of International Law, as distinguished speaker, receptions, and the Branch’s annual meeting. International Law Weekend 2009 will take place at the Association of the Bar of the City of New York on 22 October 2009, and at Fordham University School of Law on 23 and 24 October. The Weekend’s overall theme is “Challenges to Transnational Governance”.

The economic, political, and social changes of the last decade have re-shaped international law and deeply affected its role and practice, along with the identity and attitude of its participants. This year’s Weekend will address the challenges posed by these changes with an emphasis on the emergence of the notion of “transnational governance” and the issues related to it, including:

• Re-ordering, organizing, and monitoring: Is this what transnational governance is about?
• Who is in charge of transnational governance?: a discussion of the (sometimes new) role of international organizations, states, NGOs, regions, companies, private individuals, and others.
• Governing what?: The contents and scope of transnational governance.
• The impact of transnational governance on international trade, foreign investment, and dispute resolution mechanisms.
• In the new context, what is the role of regulatory international law?

Co-chairs of ILW 2009 are Pierre Bodeau-Livinec of the United Nations Office of Legal Affairs (Bodeau-Livinec [at] un [dot] org), Wil Burns, Editor in Chief, Journal of International Wildlife Law & Policy (jiwlp [at] internationalwildlifelaw [dot] org), and Aníbal M. Sabater, Partner, Fulbright & Jaworski International LLP (asabater [at] fulbright [dot] com). The co-chairs invite proposals for panels for ILW 2009, including those pertinent to this year’s theme. Please submit proposals to the co-chairs no later than Friday, April 10, 2009. Proposals should be geared for 90-minute panels and should include a formal title, a brief description of the panel (no more than 75 words), and the names, titles, and affiliations of the panel chair and three or four possible speakers. Panel proposals should also include information as to the format envisaged (point-counterpoint, roundtable, etc.).

Gacaca Justice

by Roger Alford

When we think of prosecuting perpetrators of the Rwandan genocide I would suspect that the work of the ICTR immediately comes to mind. That is unfortunate, because fewer than one percent of all Rwandan genocide trials are conducted by the ICTR. It is the local “gacaca” courts where almost all the prosecutions are held, with the ICTR and Rwandan conventional courts trying only the very top perpetrators.

The question of Rwandan justice is extraordinarily complicated. When over 50,000 Rwandans committed acts of genocide, there is simply no easy answer for how to pursue justice and reconciliation. The Rwandan government estimates that it would take over 200 years to prosecute the perpetrators if one were to rely on traditional criminal prosecutions.

How do you move forward in the face of such a dilemma? The solution Rwanda has chosen is gacaca justice. It is highly unusual by international standards, and yet there seems to be a strong sense that it is the right approach for a country that is trying to move forward in a spirit of justice and reconciliation.

I had the good fortune earlier this week to spend an evening in the home of one of the top gacaca judges in the country. Like most gacaca judges, he has no formal legal training but was elected by his community as a person of the highest moral integrity. He serves as one of nine appellate gacaca judges for the highest level crimes within the gacaca system. This court focuses on those who, in his words, “excelled at committing acts of genocide,” often killing dozens of victims. He does not sit in judgment on the planners or instigators of the Rwandan genocide, but rather those, like thousands of others, who were highly-efficient killers….

R2P in the UN 2005 Reform Summit Document

by Kenneth Anderson

Following up briefly on Kevin’s post earlier re Darfur and responsibility to protect.  Being located in Washington and having a think tank connection – Hoover – as well as a law professor job, I serve on various task forces on international law and foreign policy issues.  I was one of the experts on the Gingrich-Mitchell task force that followed the UN reform process and eventually produced a quite good report on it.  I’ve been on various task forces and public policy panels since that addressed R2P as it came out of the 2005 UN reform.  

What I do not understand is how the UN 2005 final outcome document and its sections on R2P (articles 138-139-140) are supposed to be a genuine advance over the legal situation as it stood at the end of the Kosovo war.  By the end of the Kosovo war, NATO had asserted a right to intervene in Serbia and Kosovo without a Security Council authorization and knowing that, far from one being forthcoming, it would have been vetoed by Russia and possibly China as well. International lawyers found themselves caught in a difficult place, virtuously wanting to intervene, but having a pretty clear understanding that if you take the Charter seriously, you have a legal problem.

The Madrid Bombing, March 11, 2004, Five Years On, in memoriam

by Kenneth Anderson

Today is the fifth anniversary of the Madrid bombing of the Atocha rail station, March 11, 2004.  My family and I were living in Spain at the time, and also I’m the political sciences editor of the Madrid Revista de Libros, so I followed events and the subsequent trials closely and wrote about the verdicts that finally came down in the Weekly Standard. Below the fold, I borrow from Jose Guardia at Barcepundit and list the victims, in memoriam.

Darfur Roundtable at The New Republic

by Kevin Jon Heller

Speaking of what Obama should do about Darfur, The New Republic is currently hosting a fascinating roundtable discussion on precisely that question.  Contributors include Alex de Waal, Eric Reeves, my former professor Alan Wolfe, Elizabeth Rubin, and Andrew Natsios.

Not surprisingly, I agree with Eric Reeves, who both justifiably calls Darfur a genocide and defends the ICC arrest warrant.  Sadly, though, I have to correct him concerning the modes of liability underlying the war crimes and crimes against humanity charges.  Reeves writes:

It’s important to note as well that the ICC prosecutor, Luis Moreno Ocampo, made a serious strategic error in charging Bashir individually, rather than as part of a “Joint Criminal Enterprise” (a legal concept that emerged into international law during the Balkan conflicts and prosecutions).

As I have pointed out before, joint criminal enterprise doesn’t exist under the Rome Statute.  More importantly, although Reeves is correct that the Prosecutor did not charge Bashir with the Rome Statute’s closest equivalent to JCE, co-perpetration, instead relying solely on indirect perpetration (perpetration by means), the Pre-Trial Chamber approved the arrest warrant on both modes of liability

Can a Bad Gift Affect International Relations?

by Julian Ku

I was amused to read about the kerfuffle in the UK over the supposedly rude treatment UK Prime Minister Gordon Brown and his wife received during his recent White House visit.

London newspapers are howling over a string of alleged snubs by Obama to British Prime Minister Gordon Brown during his visit to Washington last week — including a squabble over presidential gift-giving.

“President Obama has been rudeness personified towards Britain,” sniffed The Daily Telegraph Friday. “His handling of the visit of the Prime Minister, Gordon Brown, to Washington was appalling.”

The list of complaints is longer than the Magna Carta: Obama canceled a planned, podium-to-podium news conference with Brown (actually, none was ever scheduled); he recently removed a bust of former Prime Minister Winston Churchillfrom the Oval Office; and he gave gifts to the Brown family that were “about as exciting as a pair of socks,” one Fleet Street wag whined.

That last bit might be true. After Brown presented Obama with a pen holder crafted from the timbers of the 19th century British warship HMS President (whose sister ship, HMS Resolute, provided the wood for the Oval Office’s desk), Obama offered up … 25 DVDs of American movie classics.

“Oh, give me strength,” wrote one appalled Daily Telegraph staffer. “We do have television and DVD stores on this side of the Atlantic.”

This may just be UK papers looking for something to write about, but it reminded me that traditional private diplomacy can also have an outsized impact on international relations. If the Obamas just don’t get along with the Browns, this could plausibly impact US-UK relations as much as any US public diplomacy campaign.  This doesn’t seem to make sense, given that nations have interests that seem more important than a crappy thoughtless gift that the President gave the PM. But clearly it has some effect. How much is hard to tell.

Obama’s Pitiful Response to the Darfur Crisis

by Kevin Jon Heller

Although Julian and I continue to disagree about the merits of the arrest warrant against Bashir, we agree on one thing: Obama’s response to the expulsion of the humanitarian-aid groups has been appallingly weak.  I’m not surprised — I never bought into the cult of Obama, particularly its naive belief that his foreign policy and national-security policy would be fundamentally different than Bush’s — but I am still disappointed.  I had intended to write a longer post criticizing Obama’s inaction on Darfur, but I don’t think I can put it any better than Michelle did at Stop Genocide.  In a post cleverly entitled “Shirking Responsibility So Soon, Mr. President?”, Michelle reveals the Obama administration’s real interpretation of the UN’s statement on the responsibility to protect — a statement endorsed in 2005 by Susan Rice on behalf of Obama:

138. Each individual State has the responsibility to protect option to worry, if quite convenient, about its populations (but only the ones that it likes) from as it commits genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility gentle nudge entails the prevention of such crimes, including their incitement, through appropriate and necessary means. We accept pay lip service to that responsibility suggestion — really guys, no pressure — and will at least pretend that we intend to act in accordance with it. The international community should, as appropriate convenient, encourage and help States to exercise avoid, if not thwart outright, this responsibility bit of friendly advice and support the United Nations in establishing an early warning capability turning a blind eye to the most obvious and egregious of “early warning” signs and ongoing atrocities.

139. The international community, through the United Nations, also has the responsibility option, if so desired (no need to put yourself out), to use appropriate totally spineless and half-ass diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context, we are prepared are too self-interested and short-sighted to take collective action, in a timely and decisive manner after years of waffling, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate if they’re being nice to us, should peaceful means be inadequate and national authorities are manifestly failing refusing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity which they continue to perpetrate, and flaunt in our faces. We stress suggest, timidly, the need for the General Assembly to continue consideration of the responsibility to protect worry about (again, only in front of the cameras) populations from genocide, war crimes, ethnic cleansing and crimes against humanity and its implications, bearing in mind the principles of the Charter and international law. We also intend to commit ourselves (in a very non-committal way, of course. Can I get a photo of me signing this?), as necessary and appropriate, to helping being complicit as States build capacity to protect their populations from continue genocide, war crimes, ethnic cleansing and crimes against humanity and to assisting ignoring those which are under stress before crises and conflicts break out, out of our own utter lack of a backbone. (Really, should see a doctor about that.)

140. We fully support the mission of the Special Adviser of the Secretary-General on the Prevention of Genocide. We have a Special Adviser of the Secretary General on the Prevention of Genocide?

Funny, disturbing, unsettling — and seemingly completely accurate.

The ICC’s Moment of Truth

by Julian Ku

Longtime readers know that I have been pretty skeptical of the usefulness of the ICC’s actions against Sudan.  Indeed, Professor Jide Nzelibe and I have argued in prior work that international criminal tribunals can worsen humanitarian atrocities rather than deter or prevent them, especially when they are aimed at leaders who have the power to commit greater atrocities to stay in power.  Our academic argument was not that international criminal tribunals always leads to worse atrocities, but simply that their actions could do so.  We also took issue with academics and human rights advocates who consistently overstated the benefits of international criminal tribunals without serious efforts to offer evidence of these benefits. 

Sadly, the ICC’s arrest warrant against Sudan’s leaders demonstrates our point.  At least in the short-term, the ICC’s action is going to worsen the humanitarian crisis rather than improve it.  And it will make a peace agreement harder to reach, extending the conflict. 

Professor Tom Ginsburg of University of Chicago calls this the ICC’s “make or break” moment.  I’m not so sure about that, but it is true that the ICC has gone out on a limb here.  Unless the U.S. or some other powers intervene militarily to remove Bashir, it is going to get much worse before it gets much better.  And I wouldn’t look for President Obama to bail the ICC out, since the strongest reaction he’s come up with so far is that the expulsions are “unacceptable.”   If only his administration was as tough on Bashir as he is on Rush Limbaugh!

Chas Freeman Withdraws and … Is There a ‘New Liberal Realism’?

by Kenneth Anderson

OJ readers being very alert to the latest happenings in international politics, I imagine that folks are aware that Chas Freeman has withdrawn from consideration for a senior Obama administration intelligence post.  But lest anyone think that this is solely about Freeman’s ties to the government of Saudi Arabia, or exclusively about the Middle East, I repost a Freeman email regarding China and Tiananmen Square from 2006; the Weekly Standard published it and Freeman has not denied the text; his own statement on withdrawing is here.  Perhaps everyone else has long since read and digested this by now, but …

UN Human Rights Council Meets: Will the U.S. Win a Seat?

by Peggy McGuinness

The UN Human Rights Council is holding its 10th session this month in Geneva.  The agenda and program of work are useful guides to the issues under discussion, and the open Council sessions are being aired at this webcast link.  (Tomorrow’s session is an all-day plenary on the rights of the child.) All this transparency is a good thing.  And Opinio Juris will be adding to the transparency with some on-the-ground commentary in the days to come. (Stay tuned!)

The effort of the U.S. to be seated on the HR Council is getting very little media play.  Now, the U.S. has not — as far as I know — officially announced that it is seeking a seat, but one media report last month quoted UN sources saying that U.S. UN Ambassador Susan Rice has made it know that the U.S. would like a seat on the Council.  In the meantime, the U.S. delegation in Geneva is attending the current session as an observer.  The U.S. appears to see the return to observer status, which the Bush administration had pulled the plug on last June, as clearing the path toward membership and also giving the U.S. a louder voice in criticizing the politicization of the Council, in particular its focus on Israel. Of course, it will take more than U.S. participation to make the Council a more effective intergovernmental body.  But it may turn out to be less difficult to promote change from within than from the sidelines.  Whether the U.S. gets into the Council this year could be useful barometer of how well the attitudinal and participatory changes by the Obama administration are being received among the UN membership.

Greetings from Hotel Rwanda

by Roger Alford

I’m here in Kigali for the next couple of weeks staying at the “Hotel Rwanda” aka Hotel des Milles Collines. It’s a surreal experience sitting here overlooking the swimming pool of this four-star hotel where fifteen years ago manager Paul Rusesabagina sheltered 1,268 Tutsis from the Rwandan genocide.

I spent much of the day yesterday at the Rwanda Genocide Memorial Centre, which is an impressive memorial to the Rwandan genocide. It is by far the smallest and most unimposing genocide museum I have seen, particularly when compared to Yad Vashem. The interior essentially presents a history lesson without evoking the emotions that I found so pervasive at the holocaust museums in Washington and Jerusalem. The gardens, however, are another matter. It was difficult to fathom walking through the beautiful memorial garden knowing that the remains of 250,000 victims were below my feet. A quarter of a million genocide victims under my feet! It was almost impossible to accept that number as even possible.

Overall, however, my initial impression of my stay in Rwanda is a sense of hope. Having spent hours talking with various Rwandans the past few days, my strongest impression is how quickly the country has come to grips with the genocide. They are moving as fast as they can to put it behind them, and there is no attempt to whitewash or hide from the past. The Preamble to the 2003 Rwandan Constitution aptly summarizes the honest and forthright direction the country is headed:

What Exactly Does Michael Kleinman Think We Should Do About Darfur?

by Kevin Jon Heller

Two genocide bloggers at Change.org, Michelle F. and Michael Bear Kleinman, have been engaged for the past couple of weeks in an impassioned debate over the ICC’s arrest warrant for Bashir.  (See here and here, for the most recent installments.)  Michelle, though certainly not unaware of its dangers, supports the warrant.  Kleinman opposes it, blaming the ICC — like many ICC critics — for Bashir’s decision to expel humanitarian aid agencies from Darfur.

The debate ratcheted up a few notches in the past few days, following Kleiman’s particularly nasty attack on Nicholas Kristof for having the temerity to suggest, in an editorial in the New York Times last Wednesday, that Obama should pressure the Chinese to stop selling weapons to the Sudanese government and might even consider destroying a Sudanese military aircraft on the ground the next time the government violates the UN ban on offensive military flights (read: bombings) over Darfur.  Kleinman’s post, entitled “Ground Control to Nicholas Kristof” accused Kristof of writing like Jack Handey (of Saturday Night Live fame, soon of the US Senate) and claimed that he “just doesn’t get it.”

Michelle finally had enough of Kleinman’s constant criticism (which included an equally nasty attack on the anti-genocide group ENOUGH).  So she issued the following challenge:

Ok, then, what would you have us do? Nothing? You either shoot down or disregard every option presented without coming up with an alternative of your own — and you assume that no one is fleshing out the list of hypothetical consequences for any particular action, but that’s all it is: An assumption. And speaking from the perspective of someone who works on the issues everyday, I can tell you, with authority, that it’s a baseless one.

Kleinman’s response is illuminating.  Would he have us do nothing?  Actually, yes

FT Review Essay on Battlefield Robots Books

by Kenneth Anderson

Stephen Cave has a very nice short essay at the Financial Times, reviewing three books on battlefield robotics (“The New War Machine,” March 7, 2009), including a discussion of PW Singer’s new book, Wired for War.

Communities of Interpretation in International Criminal Law?

by Kenneth Anderson

In 2003, near the beginning of the Iraq war, I posed the question in the New York Times Magazine – ‘Who owns the rules of war?’  At that time, I suggested, the rules of war, including their formation, restatements, enunciation, interpretation, etc., had been gradually been passing out of the hands of state actors, those which actually engaged in it, and into the hands of NGOs.  That essay argued that “ownership” of the rules needed to pass back much more into the hands of states, and indeed states that actually undertook war.  The law needed to be framed much more as state practice and much less as idealized by NGOs.  Whether that view was right or wrong – and many readers thought it nakedly wrong – the question of who has ‘ownership’ is an important one.  And since that time, “ownership” of the rules of war, it appears to me, has fragmented still further.  International criminal law is only part of the phenomenon, but it has a role. 

US Truth Commission – NYT Room for Debate Blog Discussion

by Kenneth Anderson

The NYT Room for Debate blog is kind enough occasionally to invite me to contribute on law topics. It recently held a mini-debate on the question of whether Congress should empanel some kind of “truth commission” to deal with issues of torture and other things from the Bush administration. I was the voice in opposition. Other contributors were David Cole, Michael Ratner, Margaret Satterthwaite, and Jenny Martinez. A good time had by all, etc. – it’s a good short summary of the arguments – short as in 300-400 words max for each entry.  It generated a lot of comments – several thousand rather than the usual several hundred – from Times readers around the country. If there was anything that surprised me in the comments, it was the number that simply said, the economy is too urgent, it’s time to move on and deal with what’s in front of us.

Public Diplomacy, the Magazine

by Peter Spiro

Here.  And who knew that there was an Association of Public Diplomacy Scholars, and that one can get a master’s degree in the field?

Public diplomacy’s rise among both policymakers and academics has been pretty dramatic.  In the government, what used to be a backwater, both in main State’s public affairs bureau and in the now defunct US Information Agency, was elevated in 1999 to an under secretary-ship that has attracted some relative heavyweights, including Bush confidantes Margaret Tutwiler and Karen Hughes and most recently the Washington-savvy — though perhaps not market-savvy, he of Dow 36,000 fame — Jim Glassman.  One proposal calls for a freestanding “US Agency for Strategic Communications” (any chairs left in the Cabinet Room?).  Among social scientists, public diplomacy fits squarely in soft power theories of national projection as well as (in the IR cosmos) constructivist notions that ideas matter more than muscle.

But in another respect the development is puzzling.   In the vastly expanded universe of media channels, the government’s voice seems so much less central and authoritative.  It’s not as if you have to listen to the VOA to get your news any more.  The very concept of “propaganda” seems anachronistic.  The new context demotes the government’s communications activities to something like corporate equivalents, a matter more of branding than diplomacy.  Perhaps that requires more nuance and sensitivity than in the old world, but would also suggest that a marketing background might be just as useful as one in public affairs.

Thanks for the Treaty Interpretation Series

by Kenneth Anderson

This is a non-substance post just to say thanks from all of us to Richard Gardiner and all the commenters for offering, and to Duncan for organizing, the treaty interpretation symposium this past week.  It was marvelously intellectual and subtle and, even having read the book, I am still reading the posts carefully.  I think they will be read and cited for a long time in the academic literature, and I am certainly pleased to say that they are up on Opinio Juris.

The Majority’s Problematic Interpretation of Genocide’s Contextual Element

by Kevin Jon Heller

One of the most important issues in international criminal law is whether a genocidal policy or plan is an element of the crime of genocide.  The ICTY Appeals Chamber held in Jelisic that it is not — and that, as a result, genocide can be committed by a lone genocidaire.  Some scholars disagree, most notably Bill Schabas, who pointed out in recent — and very important — article that “while theoretical exceptions cannot be ruled out, it is nearly impossible to imagine genocide that is not planned and organized either by the State itself or a State-like entity, or by some clique associated with it.”

The Elements of Crimes take what might be thought of as an intermediate position.  They do not completely rule out prosecuting the lone genocidaire, but they make clear that a genocidal plan or policy is an element of genocide in all but the most extreme cases.  Here is Element 4 of genocide by killing, an element that is required for all five forms of genocide:

The conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction.

The requirement — normally referred to as the “contextual element” of genocide — is disjunctive: the conduct that satisfies the actus reus of the crime must either be committed as part of a genocidal policy or plan or be capable of directly effecting the total or partial destruction of a protected group.  (The lone genocidaire who has a nuclear weapon, for example.)

The majority’s decision in Bashir provides an important — and in one respect very troubling — interpretation of the contextual element of genocide…

The Poor Sudanese Government — What Else Could They Have Done?

by Kevin Jon Heller

Everything you need to know about the majority’s dismissive attitude toward the Prosecution’s evidence of genocide is contained in this paragraph:

179. In relation to the alleged insufficient resources allocated by the GoS to ensure adequate conditions of life in IDP Camps in Darfur, the Majority considers that the Prosecution’s allegation is vague in light of the fact that, in addition to the Prosecution’s failure to provide any specific information as to what possible additional resources could have been provided by the GoS, there existed an ongoing armed conflict at the relevant time and the number of IDPS, according to the United Nations, was as high as two million by mid 2004, and as high as 2.7 million today.

Really, how could the Sudanese government be expected not to subject the IDPs to slow-death conditions, given the millions of people its “counter-insurgency” displaced?  What other “additional resources” could it possibly have provided them?  After all, it was busy spending 70% of its oil revenue — $1.2 billion in 2000, $4.6 billion in 2006 — on building up its military.  That leaves a mere 30% for skyscrapers, five-star hotels, golf courses, and graft.  Sorry, Darfuris, there simply isn’t anything left for food and water and shelter.  You will just have to die.  That’s not genocide — that’s just fiscal reality.

Tamanaha on the Newly-Released OLC Memos: The Collapse of Yoo’s “Good Faith” Argument

by Chris Borgen

As you have likely heard by now, the DOJ has released nine more memos from the Bush Administration’s Office of Legal Counsel concerning various national security and international law issues.  My colleague Brian Tamanaha has read through them and has a post over at Balkinization on why they show that John Yoo’s argument that he and his colleagues acted in good faith is not tenable.  I recommend reading the whole post, but here’s a snippet that caught my eye:

As [outgoing OLC Deputy Steven] Bradbury makes clear [in his January 15, 2009 memo], the legal analysis in these memos, time and again, was just plain bad legal argument. Some of the arguments veer into the bizarre. Consider this concluding passage from a Yoo-Delahunty memo arguing that the president can order warrantless searches (case citations deleted):

The courts have observed that even the use of deadly force is reasonable under the Fourth Amendment if used in self-defense or to protect others. Here, for Fourth Amendment purposes, the right to self-defense is not that of an individual, but that of the nation and of its citizens. If the government’s heightened interest in self defense justifies the use of deadly force, then it would certainly also justify warrantless searches.

Huh? The reasoning goes like this:

Individuals can use deadly force to defend against a deadly attack;

The government can use deadly force to defend the nation against an attack;

Therefore: the government can engage in warrantless searches.

As Bradbury asserted (politely), dismissing this analysis: “We believe that this reasoning inappropriately conflates the Fourth Amendment analysis for government searches with that for use of deadly force.” It’s stupefying. (There are a few other whoppers in the memos—like the claim that if the president has authorized actions contrary to the terms of a particular treaty this amounts to a “suspension of the treaty” rather than a violation.)

Check it out.

The Majority’s Complete Misunderstanding of “Reasonable Grounds”

by Kevin Jon Heller

Having now read the decision on the arrest warrant, I am more convinced than ever that the majority completely misunderstands Article 58’s “reasonable grounds” requirement.  The rationale for the majority’s argument that there are no reasonable grounds to believe Bashir is responsible for genocide comes in paras. 158 and 159, concerning the Prosecution’s proof of the Sudanese government’s genocidal intent (emphasis mine):

158. In applying the law on the proof by inference to the article 58 evidentiary standard in relation to the existence of a GoS’s genocidal intent, the Majority agrees with the Prosecution in that such a standard would be met only if the materials provided by the Prosecution in support of the Prosecution Application show that the only reasonable conclusion to be drawn therefrom is the existence of reasonable grounds to believe in the existence of a GoS’s dolus specialist specific intent to destroy in whole or in part the Fur, Masalit and Zaghawa groups.

159. As a result, the Majority considers that, if the existence of a GoS’s genocidal intent is only one of several reasonable conclusions available on the materials provided by the Prosecution, the Prosecution Application in relation to genocide must be rejected as the evidentiary standard provided for in article 58 of the Statute would not have been met.

Two points need to be made here.  First, as Judge Usacka points out in her dissent, the majority misstates what the Prosecution actually argued.  The majority quotes para. 366 of the Prosecution’s Application, which says that no inference of genocidal intent can be drawn unless that inference is “the only reasonable inference available on the evidence.”  The majority conveniently ignores, however, the Prosecution’s footnote to para. 366, which says — correctly — that “[w]hile this is the evidentiary standard required for proof beyond a reasonable doubt, the Prosecution notes that for the purposes of an Art. 58 application the lower standard of reasonable grounds will instead be applicable” (emphasis mine).  It is unfortunate — and deserving of criticism — that the Prosecution buried such an essential distinction in a footnote, but it needs to be said that the Prosecution did not take the position the majority ascribes to it.

Second, as Judge Usacka also points out, the majority’s interpretation of Article 58 is simply wrong…

The Abiding Relevance of Treaty Interpretation

by Duncan Hollis

As we come to the end of our discussion of Richard Gardiner’s book and the subject of Treaty Interpretation more generally, I wanted to thank our guest bloggers and, of course, Richard, for what has proven a sophisticated (and hopefully useful) discussion.  I have thoroughly enjoyed the examination Isabelle, Malgosia, Jan and Richard brought to bear on issues about the New Haven School’s continued salience, dynamic treaty interpretation, prepatory work, the VCLT as rules or standards, etc.  My only regret is that there were many more topics we could have addressed but did not — e.g., the role of unilateral statements under Article 32; questions on whether our method of interpretation should shift depending on the function it serves (whether articulating national or international law or perhaps enabling conduct versus restricting it), and the problems multiple languages pose.  In any event, I hope that we’ll have future opportunities for such dialogue, and that our readers will feel free to weigh in with further views and comments of their own.

Beyond the Vienna Rules

by Richard Gardiner

Treaties constitute one of the largest effective components of modern international law. Lawyers routinely have to give meaning to their terms. Mostly this is straightforward, but often enough there are interesting difficulties in deciding what the terms mean and how they apply in novel or unexpected situations.

I have found all the posts and comments extremely interesting, and I am grateful to those who have participated in this discussion. I think that the discussion has reinforced my opening remark that too much should not be expected of the Vienna rules. However, the rules do need to be considered as a starting point for treaty interpretation, giving at least an infrastructure.

As provisions in a treaty, the rules are not themselves all easy to interpret. Professor McDougal pointed this out at the 1969 Vienna conference noting the presence there of the ILC Special Rapporteur (Waldock) as “the best testimony, not always mute” of the impossibility of applying the textuality approach, and that reference to Professor Waldock had often been necessary in tribute “not to his skill in flipping the pages of a dictionary or as a logician, but rather to his very special knowledge of all the circumstances attending the framing of our draft Convention.”

I do, however, agree with Isabelle, that practice in the application of the Vienna rules has shown them not to shut the door on much of what McDougal sought. I think it emerges from the discussion what significance attaches to the further skills required once the relevant material has been identified in accordance with the Vienna rules. These are the skills deployed in evaluating the material and shaping interpretative arguments. However, they are skills which cannot readily be listed, still less reduced to further rules. Nevertheless, at the very least, it may prove to be helpful if treaty interpretation is based on a common foundation in the Vienna rules.

 

The Arrest Warrant for Bashir — Quick Reactions

by Kevin Jon Heller

In what proved to be the worst kept secret in the world, the Pre-Trial Chamber (PTC) has decided to issue a warrant for Bashir’s arrest on the war crimes and crimes against humanity charges, but not on the genocide charges.  More substantive analysis will have to await an explanation of the PTC’s reasoning.  For now, a couple of quick thoughts.

To begin with, it seems to me that the PTC’s decision is, from a political perspective, the worst of all possible worlds.  Sudan’s response to the arrest warrant will be no less draconian simply because Bashir escaped (for now) being charged with genocide.  Yet I think we can expect the rest of the world to lose interest in Darfur (again) now that the PTC has said that the Sudanese government did not pursue a genocidal policy towards the Fur, Massalit, and Zaghawa.

And make no mistake about it: that is precisely what the PTC is saying.  As I have pointed out before, Article 58 of the Rome Statute required the PTC to issue the arrest warrant if there were “reasonable grounds to believe” that Bashir was responsible for genocide.  Not proof beyond a reasonable doubt.  Not clear and convincing evidence.  Not even more probable than not.  Just “reasonable grounds.”  That is an extremely low standard of proof — and the PTC is saying that Moreno-Ocampo failed to meet it.  That’s a very strong, and very shocking, conclusion.  I disagree with those scholars who believe that Moreno-Ocampo would be unable to prove genocide at trial, such as Alex de Waal, but I readily admit that it’s a debatable point.  I find it very difficult to believe, however, that the evidence of genocide — the murder of the male members of the tribes, the sexual violence and slow-death conditions in the IDP camps, etc. — doesn’t even establish reasonable grounds to believe that genocide occurred.

It is also worth noting that the PTC has apparently subjected the request for the arrest warrant against Bashir to an unprecedented level of scrutiny.  Check out the decisions in Lubanga or Bemba: they are mere boilerplate, stating with no explanation whatsoever that the Chamber finds reasonable grounds to believe the OTP’s allegations.  Perhaps the different treatment reflects the PTC’s belief that the cases against Lubanga and Bemba are simply far stronger; that’s certainly possible.  The problem is that we have no way to know.  We can only hope that the PTC provides a more detailed explanation of its refusal to find reasonable grounds for genocide.

Finally, it’s worth noting that this is not necessarily the end of the line for the genocide charges.  Article 82 of the Rome Statute entitles Moreno-Ocampo to appeal the PTC’s decision to the Appeals Chamber.  I very much hope he will.

The VCLT and the New Haven School

by Isabelle Van Damme

It seems that our discussion these past few days confirms that 40 years after the Vienna Conference the meta-questions relating to treaty interpretation remain unaltered. But perhaps it also appears that the ILC ultimately made the right decision to codify the relatively few basic principles on which agreement could be found. The Commission always made it clear that the effect of its codification was not to take away the freedom of interpreters to assess a range of considerations in reaching a conclusion on how to interpret treaty language. With varying degrees of success, international courts and tribunals have responded well to these principles, using them as guidance and justification, as tools to build credibility and exercise and assert their judicial function (sometimes in an institutional context), as instruments to achieve accountability, as techniques to order and structure their reasoning process, as means to make their decisions acceptable and comprehensible.

Practice informs that the ILC’s codification exercise might have served more useful purposes then the Commission initially expected, and in that sense the choices made by the ILC in codifying these principles and the position of the New Haven School might not have been as irreconcilable as originally perceived.

Art and Rules

by Richard Gardiner

I much enjoyed reading the views of Duncan Hollis on the art element in treaty interpretation and on auto-interpretation. I agree that who it is who is making an interpretation may play a key part in the outcome. That two tribunals arrived at different interpretations of similar “umbrella” provisions in bilateral investment treaties shows this all too vividly (SGS v Pakistan and SGS v Philippines).

The discussion of Leo Gross’s theory of auto-interpretation adds what may be a dimension of realism, reflecting the most common circumstances of treaty interpretation. It may help explain the tolerance of the divergent interpretations in national courts of the “uniform” provisions on carriage by air described in my previous comments. But, absent specific indications favouring auto-interpretation (such as the fall-back to national definitions for terms undefined in double taxation agreements following the OECD model), auto-interpretation seems an uneasy fit with the notion of agreement (unless one accepts the generality of Philip Allott’s description of a treaty as “a disagreement reduced to writing”).

The question put to the ILC on the art of treaty interpretation was “whether there were any rules for practising that art”. The end result was the Vienna rules. Certainly these only amount to a rather loose framework. Switching to the analogy of musical composition as an art form, there are understandings as to what a fugue or sonata is, and their composition can be seen as being to some extent governed by rules; but within either form very different results can be produced. To the extent that there are rules for treaty interpretation, they constitute a springboard rather than a straightjacket.

The ILC seems to have adopted the term “rules” rather casually, their Special Rapporteur (Waldock) musing that “[i]n a sense all ‘rules’ of interpretation have the character of ‘guidelines’…”. The Commission took more care in explaining why the content of Article 31 was described as the singular “general rule”; but elsewhere in the Vienna Convention, selection of the terms “rule” and “rules” does not suggest profound consideration of terminology. Use of the description “the Vienna rules” seems generally a convenient shorthand for the three articles forming the set of relevant provisions. Their content is more of an indication of what is to be taken into account when interpreting a treaty, with only some hints of how to achieve an interpretation – hints left to be gleaned from quite sparse indications. 

I have to plead guilty to hedging my bets on whether there is a “correct” interpretation to be given to a treaty provision. Stating that “no claim is made that the Vienna rules … lead directly to a necessarily correct result in every case”, and suggesting that further guidance is required “to set the ground for a ‘correct’ result, or at least one which has been correctly ascertained” (pp 6-7), I had in mind that the Vienna rules provide an agreed starting point for interpretation and something of a framework for the interpretative process. 

My initial aim was, in fact, even more basic – to persuade interpreters to consider all relevant elements in the Vienna rules. Some otherwise quite respectable courts and tribunals used to give the impression that they saw the opening reference in the rules to “ordinary meaning” as a green light for a literal interpretation, perhaps dipping their toes timidly in the waters of context and purpose, giving a nod to preparatory work, and ignoring the rest. In assessing and applying the Vienna rules it is at least necessary to check out the whole package.

 

 

The Invisible College

by Jan Klabbers

I am actually not sure whether it makes much sense, as Isabelle fleetingly suggests, to think of articles 31-32 in terms of either rules or principles. Following e.g. Rosenne, I tend to think that they lack any ‘norm-creative character’ (to use the phrase from the ICJ’s 1969 North Sea Continental Shelf cases), and are best seen as methodological devices: as instructions to whoever gets to be in a position to interpret a text. And methodological devices tend to be, so to speak, non-imperial: there are various different ways to engage in many activities, without it being possible to specify which one would be the best – this may well be why so many cookbooks are being produced…. Consequently, if it is not plausible to think of articles 31-32 as rules, it is not plausible to think of them as customary rules either (despite anything the ICJ may have said on the topic).

 

This does not mean that anything goes: interpretation is not an open-ended ‘free-for-all’. Typically, within the professional group of international lawyers, some arguments will be deemed more acceptable than others. Indeed, the same holds true within the sub-regimes, which may help explain why some in the human rights community were shocked (or mildly upset) by decisions such as the EC’s Court of First Instance decisions in Kadi and Yusuf a few years ago. The upset responses were not the result of the CFI somehow misapplying established rules of interpretation or applying the wrong rules of interpretation, but rather stemmed from the CFI’s unfamiliarity with human rights law. What may have made sense as a matter of EC law (one may have one’s doubts on this though), turned out to be less sensible from the viewpoint of the human rights community. The CFI ended up applying a body of rules without having acquired the sentivities of those who would normally be working with these rules, and as a result came up with readings of the right to property or access to justice that will not impress your average human rights lawyer. 

 

By the same token, many in Europe at least have expressed some dismay at the US Supreme Court’s approach to consular cases, as highlighted by Duncan. These stem not so much (or not solely) from different methods of interpretation, but rather from the Supreme Court’s reluctance to adopt (or at least familiarize itself with) the sensitivities of international lawyers. This may be politically justified, perhaps; and it may be legally justifiable, perhaps, but those are different matters. As an explanation, the idea of there being different ‘invisible colleges’, in Schachter’s famous phrase, or different ‘interpretive communities’, as Stanley Fish puts it, seems to make some sense. 

 

That also suggests that perhaps the most proper methodological device is that interpreters, judicial or otherwise, should show some humility and at least try to understand the mindset prevailing amongst the communities engaged in the body of law they are about to apply. An interesting exploration hereof is a recent study by H. Jefferson Powell with respect to the US Supreme Court (I forgot the title, and am not in a position to check right now). If one insists, one may see articles 31-32 as appeals to do just this, given their reliance on context, and the injunction to read in good faith.

The Function of Principles of Treaty Interpretation

by Isabelle Van Damme

As Jan suggested at the end of his post, it seems that the broader question underlying our debate is how principles of treaty interpretation are used to empower international courts and tribunals and what the limits are of that function.

 
On interpretation as a rule-governed activity, it seems that we all approach Articles 31 to 33 VCLT as principles rather than rules, despite the fact that they are formally treaty law reflecting customary international law on the matter. But it seems that this is not necessarily (anymore) the common perception of many commentators on treaty interpretation. This impression is based on many discussions and writings about the interpretation Article 31(3)(c) VCLT, characterized by a high-level of technicality and very much the belief that this is ‘a rule’. I’ve written elsewhere that Article 31(3)(c) VCLT is perhaps the only mistake in Articles 31 to 33 VCLT, in the sense that the value and function of the principle of harmonious interpretation might have been better served had the ILC decided not to codify the principle, for the same reasons why they decided not to codify the principle of effectiveness (which is widely applied, especially by courts and tribunals operating within an institutional context and interpreting continuously the same treaty text). The ILC made it clear that it did not intend to ‘exhaustively’ codify the matter of interpretation; it merely intended to state the basic principles based on the available practice at that time.

 
On the function of principles of treaty interpretation, I still think that they, on the one hand, help guide and structure the reasoning process, but, on the other hand, also help to justify the conclusion a court or tribunal reaches on the meaning of the treaty (to some extent, for whatever reason). They help make this conclusion acceptable for its audience (which introduces another contextual element). But their role cannot entirely be reduced to merely one of post hoc rationalization.

 
As international courts and tribunals multiply and judicial review of States’ measures and laws in the light of their international obligations increases, Articles 31 to 33 VCLT become more attractive. They seem to offer some level of objectivity, making the applicable standard of review more acceptable – especially at the earlier stage of a court’s existence when it might still be developing that standard of review (depending on the applicable procedural rules). Perhaps this is the start of a complex answer to Jan’s question.

 
I should also clarify that my earlier comment on the mild trend from formalism to informalism in justifying treaty interpretation in the WTO applies to the Appellate Body. It appears that panels have yet to fully respond to this development.

Art and Auto-Interpretation of Treaties

by Duncan Hollis

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First off, I should say how much I admire Richard Gardiner’s book; it has already earned a prominent spot on my bookshelf and I expect it will become a regular reference work for me in any future interpretative exercises.  At the same time, I have lots of questions and comments about the book and the growing density of the VCLT system it purports to describe.  Let me start here with the premise that Richard himself uses to introduce the book–the idea that treaty interpretation is an “art” and that the VCLT now provides us with “rules for practising that art.”  (p. 5).  In doing so, Richard suggests that we can employ the VCLT rules to achieve a “correct” result (p. 6) and, more specifically, that the result should be a “single autonomous interpretation.”  (p. 30).  Accepting the proposition that treaty interpretation is an art, however, leads me to ask the normative question of whether as an art it should strive to some, single common approach for each case, not to mention the descriptive problem of whether states, international organizations, international tribunals, and other subjects of international law have actually done so. 

Simply put, I wonder what the artistic axiom — that beauty lies in the art of the beholder — does for our art of treaty interpretation.   What constitutes a “good” interpretation of a treaty may be as difficult to agree upon as what constitutes good “art.”  Indeed, I see the question of the continuing salience of Prof. McDougal’s work (or the concept of textuality raised by Professor van Damme) as essentially a debate over which treaty interpretation techniques we should celebrate and which we should disapprove.  We might analogize it to debates among various schools of art.  Do we consider photorealism (i.e., textualism) to be better than abstract art (i.e., the New Haven School)?  Or, is the answer somewhere in between a la impressionism (i.e., the VCLT rule)?  

Perhaps Prof. Gardiner’s point is simply that treaty interpretation has evolved to the point where the community of interpretators has agreed upon a single, acceptable technique for our art, namely the VCLT.  It’s become, to use Jan Klabber’s phrase, our battlefield for discourse.  I’d agree with such descriptions to a point–would any international lawyer contest the necessity of consulting the VCLT rule as the start of an interpretative exercise?  But, even assuming that’s true, I wonder about the assertion in at least other three respects. 

First, is it true that the VCLT sets the whole battleground for debate, i.e., is it the only technique or simply the dominant one.  It certainly could be an exclusive method if read broadly.  For example, I for one have never found Article 32 too troublesome on the question of using prepatory work.  I find plenty of space to “confirm” or “determine” whatever meaning a good faith interpretation of the text’s ordinary meaning in context produces.  Now, some might say I go too far, but here I agree with Jan that most lawyers will do this work and marshal the VCLT to confirm it whenever that research favors them (and invoke the “subsidiary” nature of the exercise when it does not).  

Second, I wonder how, if at all, we should conceive of the VCLT and petitions for “special” interpretative rules.  Are they simply variations on the VCLT, or competitors with it?  In particular, can we say the VCLT drives both the ECtHR’s rulings that hint at dynamic treaty interpretation with the WTO’s that don’t, because of special contexts–human rights vs. trade–that lead us to emphasize certain components of the VCLT rule over others.  Might similar reasoning justify broader readings of constituent instruments of international organizations even as it would generate strong objections if applied in a bilateral context?   

Third, even if the VCLT is, so to speak, the governing school of our art, I’m not sure it follows that it requires a single, common, autonomous intepretation in every instance.  On the contrary, the “crucible” approach adopted by the ILC (and Prof. Gardiner) leaves lots of different moving parts in play to produce competing “reasonable” interpretations of a treaty’s text.  Here, I’d cite another idea percolating around at the time the VCLT and the New Haven school gained prominence–Leo Gross’s theory of auto-interpretation.  Gross argued against too quickly disassociating the subject of interpretation (i.e., the treaty) from the interpretator (i.e., states, IO, or international tribunal).  In other words, worry less about the interpretative rule than finding a way to get someone to authoritatively apply it.  For Gross, the horizontal nature of the international legal order frequently hinders the prospects of doing this.  Parties can always agree on one “authentic” treaty interpretation, just as they can delegate to some international organization or tribunal authority to pronounce it.  And certainly, examples like the ECtHR or the ICJ reflect the product of such agreements.  But, in most cases states have not agreed to common or third-party interpretations.  More often, a state retains the right to self-interpret what the treaty means, i.e., an “auto-interpretation.”  And other states and subjects of international law can do the same.  The international legal order is thus more than likely to produce competing, unresolvable, auto-interpretations of a treaty’s text than any single, common interpretation.  The VCLT may have improved things by forcing states to adopt a common framework (and language) for their disagreements, but it alone can’t move subjects of the law beyond that framework to some, actual “correct” interpretation, however, dense the various components of the VCLT rule have become in recent years.   

Indeed, I wonder if Gross didn’t overestimate the value of authoritative interpretations by third parties to produce a single, autonomous meaning.  Witness the U.S. Supreme Court’s disagreements with the ICJ over the Vienna Convention on Consular Relations’s requirements of a remedy for a failure to provide consular notification under Article 36.  Some argue that the ICJ’s interpretation is authoritative, and the United States apparently agreed at least with respect to certain named Mexican nationals even as it found domestic law lacking a method to comply.  But, beyond those named parties, the Supreme Court believed the ICJ got it wrong, and offered its own competing vision of the article’s “correct” interpretation. Who’s right? Isn’t a decision as to which side gave the “right” interpretation essentially a function of who we ask?  (in fact, won’t those we ask answer based mostly on pre-conceived notions of whether international and domestic tribunals should have a vertical, horizontal, or diagonal relationship than the actual interpretations each employed?).  In the end, is there any way to achieve some finality of interpretation, absent an agreed reconciliation negotiated by the United States with Mexico, or the ICJ itself?  Otherwise, as much as I enjoy treaty interpretation, it remains a pretty subjective exercise, with each of us having our tastes and views of what’s good and bad work, even if we use only the VCLT to judge it.

Textuality and Preparatory Work

by Richard Gardiner

First, my thanks for Malgosia, Isabelle and Jan for all their comments.

The work of the ECtHR has an interesting aspect in the present context. One of the first to take up the Vienna rules systematically, the Court (as Malgosia shows) has apparently not found them to constrict its development of a distinctive line of case law appropriate to the Convention which the Court applies.

Isabelle’s first post also addresses case law of a single institution, indicating that the WTO Appellate Body has in effect reflected one of the central ideas of the ILC in formulating the first part of the general rule – that the ordinary meaning of terms has to be drawn as much from the context as from the dictionary (ie not simply seeking what Judge Higgins critically described as ‘a mythical “ordinary meaning”’, Kasikili/Sedudu Island (Botswana/Namibia)).

Isabelle also takes us deep into the difficulties over preparatory work. It will not always be possible to treat silence on a particular point as “constructive ambiguity”; nor will it always be clear that a matter was intentionally excluded from a treaty. A contemporary example is brewing up in different circuits of the US Court of Appeals.

The Warsaw Convention provides that claims relating to accidents and incidents in carriage by air must be brought in a court in one of four specified places (destination, domicile of carrier etc) “at the option of the plaintiff”. The next provision states that “questions of procedure” are for the law of the place of the court to which the case is submitted. Can that court reject the choice of the plaintiff, finding itself inappropriate (forum non conveniens)? Is the right offered by the treaty to the claimant to opt for a jurisdiction a matter of procedure, or an exercise of that option subject to being overruled as a matter of procedure?

Courts have differed on this, even before the 1999 Montreal Convention added a fifth jurisdictional possibility. Some negotiators argued in 1999 that the safeguard against improper use of the fifth jurisdiction would be the doctrine of forum non conveniens. In 1929 a proposal to allow courts to refuse to hear cases had not been taken up. In 1999 the matter was still not resolved in the Convention. The text remained substantially as in the 1929 Convention, retaining the “option” of the claimant and “procedure” being governed by the law of the forum.

The Court of Appeals, Ninth Circuit, held in 2002 that the Warsaw Convention did not permit a finding of forum non conveniens (Hosaka v. United Airlines Inc, cert. denied 537 U.S. 1227 (2003)). In contrast, the doctrine has been allowed application in relation to the Montreal Convention in a case now on appeal to the Court of Appeals, Eleventh Circuit (In re: West Caribbean Airways, S.A., Sept 27, 2007 (S.D. Fla. No. 06-22748)).

What is the extent of admissible preparatory work? Although the Montreal Convention is in form a new treaty, much of it has its origins in the 1929 Convention. What is the significance (if any) of the mixed practice under that Convention? Does the discussion at the 1999 Montreal Conference leave interpretative options open (other than for the plaintiff!). It looks as if this case could give the rules of treaty interpretation a good workout. Perhaps the failure of the Montreal Conference to resolve the issue (along with some other key issues in carriage by air) allows scope for what Jan describes as a “battlefield” and for continuation of unresolved political issues.

Interpretation as the Continuation of Politics by Other Means

by Jan Klabbers

I would agree with Richard (and Isabelle) that not too much should be expected from any rules on interpretation. Interpretation is, so to speak, not entirely a rule-governed activity, in much the same way as playing the violin or the piano is not entirely rule-governed. Or building do-it-yourself bookshelves by following the manual, for that matter. I might be particularly clumsy in these matters (my wife would nod affirmatively if she would read this), but have the experience that trips to Ikea always end up in great frustration….

If this is plausible (and many seem to accept the proposition that interpretation is at least in part a matter of art and therewith of talent), then it would seem to follow that rules on interpretation can do little more than set the outward parameters: certain things are not acceptable to begin with. The strange thing now about articles 31 and 32 is that the one serious limit these rules set, is constantly ignored: I cannot think of a serious lawyer who would not at least have a look at some of the preparatory work to bolster her conclusion or, if necessary, reconsider her conclusion, regardless of whether an interpretation without the preparatory works would lead to ambiguous or absurd results. It is understandable that the drafters of the Vienna Convention felt the need to limit recourse to the preparatory works, if only for practical reasons (never mind that there are also good political reasons to limit recourse to the travaux): one would have a hard time figuring out relevant from not so relevant materials (plus debates, of course, on what exactly would constitute such relevant materials) and, more importantly still perhaps: it would lead to all sorts of difficult negotiations on what exactly the record should reflect. Imagine the sort of record created if the UNCLOS travaux would have been thought to be decisive for future interpretations; the process would in all likelihood have taken twice as long. Still, any lawyer worth her salt will consult whatever record is available.

The main function served by the Vienna Convention’s rules, then, is as something of a battlefield: the continuation of politics by other means. If you don’t get your way when drafting the treaty, you can still try to get your way when a particular provision or term comes to be applied, by trying to control the meaning assigned to it. And in order to be able to argue that something ought to be read in some particular manner rather than any competing manner, it proves convenient to have a rule to fall back, if only to suggest that you’re not just making a political or partisan point. It is this circumstance, I would guess, which gives articles 31 and 32 much of their salience, and which makes it attractive to invoke them. Isabelle hints at much the same when suggesting that the WTO panels initially felt the need to solidify their judicial function in the rough and tumble world of trade politics, and I’ll take her word for it that later panels (if not litigating parties, perhaps) have been able to relax their attitudes somewhat.  

Whether that can be generalized or not is a different matter, perhaps. One factor militating against this is that even parties before the European Court of Justice, for all its self-containment, have seen fit to invoke articles 31 and 32 in recent years, and I don’t think the Court will have done much to tell parties otherwise. So perhaps the trend of the last 15 years, as Richard identifies it, is a bit more general indeed than merely the WTO trying to solidify its existence. But that raises another question: where does such a general tend stem from? What problem is it supposed to be a response to? Something to reflect upon…

Treaty Interpretation and Preparatory Work

by Isabelle Van Damme

In the introduction to our discussion, Richard also raised the question of: ‘Should preparatory work be investigated only to identify agreement among the negotiators or, particularly in the case of treaty provisions with a codifying aspect, to assess the state of international law leading up to the treaty and how this affected the negotiators?’

With respect to the first aspect of the question of whether preparatory work be investigated only to identify agreement among the negotiators:

The proposition of McNair that preparatory work reflects the common intentions of the contracting parties is troubling, especially when applied to multilateral treaties. Legal fictions can be helpful and necessary to move from theoretical impasses to practical solutions. It is probably the case that there ‘is [no] single legislative will behind international law’ (ILC Fragmentation Study Report 2006), even treaty law. Treaties such as the WTO covered agreements are negotiated by a heterogeneous group with particular and diverse interests. The larger this group the more unlikely it becomes that negotiators converged to a single, specific meaning of the treaty language. Preparatory work cannot, almost by definition, concern the common intention of all contracting parties. The common intention is only formed once the treaty language has been drafted and will develop over time and with the accession of new parties. Everything before the conclusion of the treaty expresses interests, values, objectives, and concerns of a single signatory or a group of contracting parties. Negotiations are as much about common intentions as about self-interests and strategy. Using preparatory work is a matter of relevance and availability but also of weighing and balancing.

A recent Appellate Body report illustrates this well. In US – Stainless Steel (Mexico), the Appellate Body found that there was no need to consider negotiating history. But it did, nevertheless, as one of the disputants extensively relied on the negotiating history of the Anti-Dumping Agreement and its predecessor Tokyo Round Anti-Dumping Code. The US contended that historical materials demonstrated that the permissibility of zeroing was left undecided by WTO Members. The silence in the agreement on this matter was not constructive ambiguity but was intentionally excluded from its scope. As a result, the Appellate Body should read the text of the agreement to include a prohibition on zeroing. The Appellate Body rejected this argument on several grounds. Ratione personae, the negotiating history only reflected the positions of a few negotiating parties. Rationae materiae, it was also not substantively relevant, as it ‘did not resolve the issue of whether the negotiators … intended to prohibit zeroing’ [para 131]. Ratione temporis, much of the invoked materials pertained to the interpretation and drafting of the plurilateral Tokyo Round Anti-Dumping Code. This was a separate treaty from the GATT 1947 and was terminated with the adoption of the 1995 Anti-Dumping Agreement [para 132]. They are two separate treaties, with different texts, membership, binding force, and mainly different temporal scopes. Their respective negotiating history cannot easily be interchanged. As a result, the Appellate Body found that the Anti-Dumping Code ‘is of little relevance for the interpretation of differently phrased or new provisions of the Anti-Dumping Agreement’ [para 132]. In response, the US strongly disagreed with this reasoning because ‘the Division’s conclusions regarding the negotiating history simply cannot be reconciled with that history’. Ratione temporis, the US argued that relevant negotiating history of treaties no longer in force, such as the Tokyo Round Anti-Dumping Code, could serve to interpret another treaty, such as the Anti-Dumping Agreement.

Any action and inaction of negotiators preceding the conclusion of the treaty is part of the history of text, but history is not applicable law. From the practice of judicial treaty interpretation, it seems that there exists a presumption that materials evidencing such conduct, statements, or lack thereof cannot inform the meaning of the treaty text. It can be rebutted but the burden of proof is considerable. The larger the group of negotiators and signatories of a treaty, the higher that burden. It involves proving that there was a common intention of that group that the treaty text or term has a particular meaning, with written evidence.

But this raises another question, namely, if this burden of proof is met how does the negotiating history proven to reflect a common intention among (not necessarily all) negotiating partners still qualify as a ‘supplementary means of interpretation’? Perhaps, it may be possible to qualify such type of negotiating history as context under Article 31(2) VCLT, or even as evidence of a special meaning under Article 31(4) VCLT? These questions illustrate the earlier point made about understanding the relationship between different principles of interpretation, and their relative value and meaning.

With respect to the second aspect of the question of whether preparatory work be investigated particularly in the case of treaty provisions with a codifying aspect, to assess the state of international law leading up to the treaty and how this affected the negotiators:

These are just some preliminary remarks: I believe this is a different matter and that here negotiating history serves a different purpose depending on the substance of, for example, statements of negotiators. Statements of negotiating partners may be relevant to establishing what the state of customary international law is at the time of negotiating the treaty and how to codify such customary norm. Such statements may inform whether the constitutive elements of opinio iuris and state practice are available, to the extent that they inform whether States belief they are bound by a norm as a customary international law.

But when it comes to subsequent interpretation of the treaty that codifies the customary norm, the same statements can only be relevant to inform the meaning of the treaty if they clarify the extent to which negotiating States intended to be bound by the same norm as treaty law – on the assumption that pure codification is possible. Each statement should thus be examined to determine their scope. To the extent that such statements only relate to the norm that will be binding as treaty law, these statements cannot be taken into account to examine the state of customary international law (though admittedly, this may lead to a paradox, especially in the event of a large multilateral treaty being negotiated). A single statement may thus simultaneously inform whether a state believes to be bound by a norm of customary international and what that norm is, and explain how a state perceives the relationship between the treaty norm to be negotiated and the pre-existing customary norm (codification, crystallization, contracting out, etc). A single statement may thus serve two functions and an examination of the substance must determine what part is relevant to informing the state of customary international law and what part serves the purpose of treaty interpretation.

Such statements might also become relevant in the event that a court or tribunal decides to interpret the treaty against the background of other rules of international law. To the extent that such statements inform that States intended to contract out of pre-existing customary international law, it signals that the interpretation of the treaty norm acknowledges this decision. In that sense, the interpretation of the treaty against the background of other rules of international law is not about ensuring ‘harmony’ but, instead, useful to respect the choice to contract out of customary international law, in whatever degree or extent.

As I mentioned, these are just a few preliminary remarks on a most intriguing question.

Article 31 of the VCLT and ‘textualism’

by Isabelle Van Damme

The initial post introducing our discussion of Treaty Interpretation raises various issues of interest to the study and practice of treaty interpretation. In this first reply, I focus on the first question relating to the tragedy of ‘insistent emphasis upon an impossible, conformity-imposing textuality’. My responses are informed by my study of treaty interpretation by the WTO Appellate Body.

I believe that the practice of international courts and tribunals has demonstrated that the general principle in  Article 31(1) VCLT does not emphasize ‘impossible, conformity-imposing textuality’. The text of Article 31(1) itself reads: ‘A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’. The text itself thus emphasizes that the starting point is the ‘contextualized ordinary meaning’, a notion that was actually already introduced before the ILC started its work on the law of treaties (eg, writings by Stone and Huber, Judge Anzilotti in Interpretation of the Convention of 1919 Concerning Employment of Women During the Night, the ICJ in Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime Consultative Organization).

In the context of the WTO, the claim has been made that the Appellate Body has used Article 31 VCLT to the extent of, indeed, something alike ‘impossible, conformity-imposing textuality’. The Appellate Body’s apparently excessive attention to the words of the WTO treaty language might seem overdone, but it is correct nevertheless. However, such excessive attention to the words of the treaty does not justify the claim of strict textualism. Much has been said about its use of dictionaries, but in fact it has hardly ever solely relied on dictionary meanings, and already a substantive amount of ‘contextualization’ takes place when choosing the relevant dictionary meanings. The Appellate Body itself has explicitly recognized the limits of dictionary definitions and the need to contextualize them, through various methods. Of course, the fact that it consults dictionaries is not problematic, it is a common technique. But the Appellate Body was unique in the way that it openly acknowledged its use of dictionaries, in great detail. Its initial apparently excessive use of dictionaries and references to Article 31 VCLT was probably instigated by the need to assert its judicial function against the backdrop of a not fully developed institutional model and under-developed procedural rules in the DSU. To a large extent, this has been a successful strategy. In response, the explanation of its interpretative process has become less formalistic in recent cases.

If the general thread in an interpretative practice is to use the contextualized ordinary meaning as the keystone upon which the interpretation is built, this raises the question of how to define context? Article 31 VCLT gives the impression that it defines context in abstracto in an exhaustive manner. But when studying the interpretative practices and techniques used by one or more courts and tribunals, it becomes easily visible that a broader notion of contextualism applies. The ILC did not explain what ‘ordinary meaning’ entails. The Appellate Body’s jurisprudence suggests that the ‘ordinary’ meaning already implies a considerable amount of contextualization of the treaty language as part of what is commonly perceived as literal interpretation. Even if the VCLT drafters realized that context has a broader meaning and impact in treaty interpretation, the language in Article 31(2) mirrors the ultimate consensus that could be reached. The consensus among States on the final text of the VCLT was grounded on the shared understanding that consensualism was the basis for entering into treaty obligations. This helps to understand and appreciate how the VCLT reflects to what States ultimately could (only) agree. Also, at the time of the VCLT negotiations there was little practice of courts and tribunals like WTO panels and the Appellate Body, who continuously revisit the same treaties and within a particular institutional context. This might point to a certain disjuncture between the treaty language in Articles 31 to 33 VCLT and the interpretive practice of international courts and tribunals, without calling the text of Article 31 to 33 VCLT into question.

In essence, I believe that the usefulness and value of any principle of treaty interpretation, including the use negotiating history, is relative and depends on its relationship to other principles of treaty interpretation, whether codified or not.

New Haven School, Textuality and Dynamic Interpretation

by Malgosia Fitzmaurice

I found comments of Richard Gardiner on the New Haven School very useful and indeed I ask myself frequently a question as to its continuing salience. I have recently researched the issue of dynamic interpretation of treaties in particular in relation to the practice of the European Court of Human Rights. The Tyrer and the Golder cases are generally treated as the leading cases illustrating the dynamic interpretation of treaties by the ECtHR.  In the latter case the (now defunct) Commssion said as follows: ‘[t]he overriding function of the Commission is to protect the rights of individuals and not to lay down as between States mutual obligations which are to be restrictively interpreted having regard to the sovereignty of those States. On the contrary the role of the Convention and the function of its interpretation is to make the protection of the individual effective’.

In broad brushstrokes it may be said that the main gist of the arguments supporting and promoting the interpretative methods adopted by the ECtHR is a special nature (subject-matter) of the European Convention on Human Rights. It was stated that the ECHR is more than a “common standard of achievement”, but imposes on the Parties a body of legal principles to which they have to conform, compliance with which is at times ensured by the machinery set up under the Convention. When the case is brought before the Court, the fundamental function of this machinery is to ascertain whether the national law conforms to the provisions of the Convention. It has been suggested that under the regime of the ECHR, the reliance upon classical tenets of international law such as nationality and reciprocity is unnecessary.  Although the Convention itself is drafted in the traditional form of a treaty, from the point of view of substance its “law transcends the traditional boundaries drawn between international law and domestic law. In short, the Convention is sui generis”, is neither international nor domestic although it comprises of both elements. The argument further is developed that the Convention’s law is not simply a law applied by the Court (and previously the Commission).  On the one hand, the Committee of Ministers of the Council of Europe also apply it, as well as, on the other hand the doctrinal (theoretical) background for the interpretative methods of the ECtHR was elucidated in many Judgements of the Court, as well as numerous publications.

My hypothesis is that such an approach to intepretation may have doctrinal roots in the New Haven School as it was stated:    

‘The main objective of an agreement is to project a common policy with the respect of future distribution of values and the purpose of  interpretation is to discern the shared expectations of the Parties, which may be adjusted by the interpretator to the goals of public order, including human dignity, which realisation the authors encourage. The authors formulated as follows the main objective of  interpretation:

 [t]he primary, distinctive goal stipulates that decision-makers undertake a disciplined, responsible effort to ascertain the genuine shared expectations of the particular parties to an agreement. This link with fundamental policy is clear: to defend the dignity of man is to respect his choices and not, save for overriding common interest, to impose the choices of others upon him.  

(M.McDougal, H.Laswell and J.C. Miller, The Interpretation of Agreements and World Public Order: Principles of Content and Procedure, (New Haven, London: Yale University Press, 1967).  See a very critical analysis of this theory: G.Fitzmaurice, “Vae Victis or Woe to the Negotiator? Your Treaty of Our Interpretation of It” (review essay), 65 AJIL (1971), pp. 358-73).

The establishment of a common order which is not only legal but based on common moral standards, is what the European Court of Human Rights is attempting to do in its jurisrudence. In my view, the importance of the New Haven Theory of interpretation is embodied, at least to a certain extent in the practice of the Court (which of course was subject to very ascerbic criticism of Fitzmaurice, in his Opinions during his term as a Judge of this Court).         

 

Treaty Interpretation: Reviewing the Rules

by Richard Gardiner

I am most grateful for this opportunity to thank Opinio Juris for hosting discussion of Treaty Interpretation and, in particular, Duncan Hollis for setting up the event.

The rules of treaty interpretation codified in the 1969 Vienna Convention on the Law of Treaties, Articles 31-33, have now been around for 40 years, but only in the last 15 has their use become quite widespread. Too much should not be expected of the Vienna rules. Their progenitors in the ILC deliberately avoided going beyond “trying to isolate and codify the comparatively few general principles which appear to constitute general rules for the interpretation of treaties.” (Commentary on draft articles).

Brief though the Vienna rules are compared with the comprehensive canons drawn up by others, their application in any given case can be a lengthy exercise. Just exploring the context requires considering the whole text of the treaty (and more); the rest of the general rule may require exploring practice, whole areas of international law, (and more); the preparatory work may be extensive (and there are other supplementary means as well); and language comparisons all too often throw up points of importance.

The only other show in town at the time of the 1969 Vienna Convention was the contrasting approach of the McDougal/New Haven School. Key features (greatly oversimplified) of this were: viewing an international agreement as a continuing process of communication and collaboration between the parties, examining context in a much broader sense than that defined in the Vienna rules, finding the shared expectations of commitment, and taking into account community values.

Review of this approach suggests several questions:

1) Has the “tragedy” which McDougal foresaw in the Vienna rules of an “insistent emphasis upon an impossible, conformity-imposing textuality” (61 AJIL 992 (1967)) proved justified?

2) Would such a tragedy have been averted by adoption of the system in his (and his collaborators’) massive work on interpretation of agreements?

3) Has recourse to the preparatory work of treaties been unduly curtailed?

4) Would the New Haven system have proved a scheme better fitted to the purpose?

Suggesting the answer no to each of these questions (in the case of the second one, on the basis that the tragedy has not occurred), there are nevertheless several issues which warrant another look. Picking out just a couple, the extent of preparatory work to be considered and how to use it remain difficult matters. Underlying the recent OJ blog about treaty provisions on piracy (One Solution to Piracy: Try Pirates in Kenya) was the issue whether admissible ILC material was limited to its very brief commentary or whether, at the other extreme, one should follow up the ILC’s acknowledged lifting of piracy provisions from the 1932 Harvard draft articles? Should preparatory work be investigated only to identify agreement among the negotiators or, particularly in the case of treaty provisions with a codifying aspect, to assess the state of international law leading up to the treaty and how this affected the negotiators?

The case of Witold Litwa v Poland in the ECtHR offers an example suggesting that excessive textuality and the supplementary role of preparatory work are not obstacles introduced by the Vienna rules into the interpretative process. The judgment in that case held that detention of someone who had been found drunk was permitted by the exception in the Human Rights Convention allowing detention of “alcoholics”. But did the Court give the Vienna rules a formalistic and unrealistic application to produce a meaning not limited to persons addicted to alcohol but just plain drunk? Was the Court really using the preparatory work to determine the meaning while pretending that the conclusion could be reached within the ambit of the general rule of interpretation?

One case is no basis for a general conclusion, but there are grounds to hope that the Vienna rules provide a useful framework, setting fair bounds to the investigation of meaning without insisting on “an impossible, conformity-imposing textuality”.

OUP/OJ Book Club, Richard Gardiner’s Treaty Interpretation

by Duncan Hollis

As I mentioned last week, we’re pleased to host Richard Gardiner (University College London) for the next three days for a discussion of his book, Treaty Interpretation.  In addition to comments by our regular contributors, we’ve invited several distinguished treaty experts to respond to his work, including Isabelle van Damme (Clare College, Cambridge), Malgosia Fitzmaurice (University of London, Queen Mary), and Jan Klabbers (Helsinki).  Some of our guest experts will be commenting on the book itself, others may choose to comment on the comments.  In either case, we’re looking forward to the discussion, and will, of course, welcome comments and questions from readers as well.

Breaking Out of the Prisoner’s Dilemma

by Chris Borgen

An interesting piece from Wired Science on a new article concerning the evolution of cooperation among self-interested individuals. The article focuses on the Prisoner’s Dilemma, that old chestnut of game theory, described in this way in the Stanford Encyclopedia of Philosophy:

Tanya and Cinque have been arrested for robbing the Hibernia Savings Bank and placed in separate isolation cells. Both care much more about their personal freedom than about the welfare of their accomplice. A clever prosecutor makes the following offer to each. “You may choose to confess or remain silent. If you confess and your accomplice remains silent I will drop all charges against you and use your testimony to ensure that your accomplice does serious time. Likewise, if your accomplice confesses while you remain silent, they will go free while you do the time. If you both confess I get two convictions, but I’ll see to it that you both get early parole. If you both remain silent, I’ll have to settle for token sentences on firearms possession charges. If you wish to confess, you must leave a note with the jailer before my return tomorrow morning.”

The “dilemma” faced by the prisoners here is that, whatever the other does, each is better off confessing than remaining silent. But the outcome obtained when both confess is worse for each than the outcome they would have obtained had both remained silent.

Game theory (and the prisoner’s dilemma, in partiuclar) have been used by Eric Posner and Jack Goldsmith to critique the efficacy of international law and, conversely, by Andrew Guzman (and others) to explain how international law works (the title of Guzman’s book).  The new research, by Swiss Federal Institute of Technology sociologists Dirk Helbing and Wenjian Yu, focuses not on a single game, but what happens when there are multiple two-player games, but a large crowd of players. They write: “We report the sudden outbreak of predominant cooperation in a noisy world dominated by selfishness and defection.” Here is the crux of Wired’s take on the research (and check out the full piece at the Wired Science blog, which includes an graphical simulation.):

The key, suggests Helbing’s simulation, is mobility and imitation. When individuals are free to choose their associates and smart enough to imitate their success, cooperation emerges, then flourishes — and it doesn’t take much to start the process. At each iteration in the simulation, just one in 20 units had a chance of abandoning selfishness, and the choice was usually punished.

“After a very long time, there will be two or three or four individuals in the same neighborhood who just happen to cooperate, just by chance,” said Helbing. “It’s a happy coincidence — and once there’s a sufficiently large cluster, cooperators do quite well. Defectors start to copy the behavior of cooperative clusters. And cooperation can persist and spread.”

In many ways, the Prisoner’s Dilemma simulation is for game theorists what fruit flies are to biologists: a simple system in which basic principles can be uncovered, examined and hopefully extrapolated to people. It’s just a model; a bit of mobility and imitation won’t magically fix humanity’s problems. But they might be important.

I’ll let Posner et al. slug it out over whether or not this means customary international law is reallylaw or “just” cooperation, etc. For me, the interesting thing about this result are the implications for how we can construct legal regimes (another theme of Guzman’s scholarship).  Helbing and Yu focus on the importance of moving people around in order to set the preconditions for cooperation. I wonder if it is literally that, or if the key aspect (for them) was the importance of moving information around–that is letting other players know about successful strategies, thus giving them the incentive to imitate those strategies in an attempt to get similar results. If that is the case, then this may reinforce the arguments (particularly of  insitutionalist and constructivist scholars) that we need to go beyond arguments over enforcement mechanisms in international law and pay more attention to information dispersal and socialization.