Archive for
August, 2009

An Open Letter to Nuri al-Maliki About the ICC

by Kevin Jon Heller

Dear Mr. Prime Minister:

I noted with interest your recent statement that you believe an international criminal court should be created to prosecute individuals whom you believe have committed crimes against Iraqis.  As reported by Xinhua:

The Iraqi Prime Minister Nuri al-Maliki on Monday demanded again for the United Nations to form a criminal court to prosecute those involved in the killing of Iraqis.

Maliki made his remarks during meeting with Turkish Foreign Minister Ahmet Davutoglu who arrived in Baghdad earlier in the day on an official visit.

The Turkish foreign minister’s visit is expected to defuse tensions between Iraq and Syria after Baghdad’s allegations that Damascus was harboring insurgents responsible for the recent truck bombings in Baghdad.

“Iraq’s stance is to go on demanding the UN to form an international criminal court to prosecute the perpetrators of these brutal crimes against innocent Iraqis and targeted the security and stability of Iraq,” a statement from Maliki’s office quoted him as saying.

Maliki reiterated Iraq’s firm stance of demanding Syria to handover senior members of Saddam Hussein’s Baath party whom Baghdad accused of plotting the deadly bombings in Baghdad and are still in exile in neighboring Syria, the statement said.

He also pointed out that since 2004, Iraq has been submitting to Syria names, documents and evidences about the insurgents’ activities, including information about the Baathists, the statement added.

I recognize that the UN’s ill-conceived decision to create the Special Tribunal for Lebanon encourages states such as Iraq to ask for their own private international tribunals.  I would like to remind you, however, that an international criminal court capable of addressing your concerns already exists. It is even helpfully named the “International Criminal Court.”  As a sovereign state, Iraq is free to ratify the Rome Statute — as numerous Iraqis and human-rights groups have been urging for years — and accept the Court’s jurisdiction retroactive to 1 July 2002.  Iraq could then self-refer the situation in Iraq to the Court for possible investigation and prosecution.

There is, of course, precedent for such a decision.  The Iraqi Transitional Government indicated its intent to ratify the Rome Statute in March of 2005, but reversed itself two weeks later, almost certainly as a result of U.S. pressure.  Your government is obviously much stronger and much more independent than its predecessor, so you should be more than capable of resisting U.S. demands this time around.

If you have any additional questions, please feel free to contact me.



Qaddafi, His Tent, and Tree Permits

by Chris Borgen

Following-up on my recent post, I see that the Wall Street Journal reports that President Qaddafi no longer plans to stay in a large tent on the grounds of a home owned by the Libyan government in Englewood, NJ, during the opening of the UN General Assembly this fall. No specific reason is being given for the change, although diplomatic negotiations are the likely reason.  However, it is interesting to note that last week Englewood filed a suit against Libya and the construction contractor that had been renovating the Libyan property (probably in anticipation of Qaddafi’s visit). According to Findlaw (which also has links to the court papers), after an August 24th stop work order by Englewood’s city engineer was ignored:

Englewood Mayor Michael Wildes had the City Attorney Bill Bailey sue to get a temporary restraining order and injunction against the Libyan Government and its Greenwich Village-based New York City contractor, Quattro Construction.

The lawsuit contends that Libya and the contractor:

1. Have “not maintained Soil Erosion and Sediment Control (SESC) measures on site. Based on the amount of disturbance taking place on the property, the applicant will be required to obtain a SESC permit.”

2. “Has not obtained a tree permit for the trees cut down on the property;”

3. Must submit a grading plan to the City for “review and approval,” and potentially a “Soil Movement” permit;

4. Obtain approval for the construction of a wall on the property, which “may require a Stream Encroachment Permit for construction near the pond area.”

I love it when NJ tree permit litigation and international relations overlap!

Excellent Human Rights Course Supplement by Professor Weissbrodt, et al.

by Peggy McGuinness

I normally wouldn’t post on a document supplement to a casebook, but the publication of Selected International Human Rights Instruments and Bibliography for Research on International Human Rights Law, by David Weissbrodt, Fionnuala Ni Aolain, Mary Rumsey, Marci Hoffman and Joan Fitzpatrick (4th Ed. 2009 Lexis/Nexis 2009) is worth a shout out. It is by far the most up-to-date course supplement, including, e.g., the new UN Disabilities Convention and the Migrant Workers Convention. But it also includes important UN institutional directives and rules that typically elude these kinds of compilations, e.g., Security Council Resolution 1325 (mainstreaming gender issues in the Council’s Chapter VII operations) and the procedural rules for the  UN Human Rights Council.  Most important for students is the extensive bibliography for “Research on International Human Rights Law,” which covers research in human rights instruments, case law, books, periodicals, blogs and websites, and a whole host of U.S.-based governmental and NGO materials.

I generally don’t recommend that students spend money on supplements that simply reprint treaties and texts that are available free of charge on the web.  This compilation offers much more than simply selecting and reprinting official materials.  It adds real value in providing research sources and methods, making it a thoughtful and useful supplement and guide. I wholeheartedly recommend it to students and teachers alike.

For students enrolled in a human rights research seminar this semester (attention my students!), the Univ. of Minnesota Law Library has a terrific guide to researching international human rights that can be accessed here. It’s a great place to start thinking about a research project.

Visiting International Law Professor Position at JHU Nanjing University Center

by Kenneth Anderson

Ruth Wedgwood of Johns Hopkins SAIS asked if I would post this job announcement flyer for a visiting professor in international law at JHU Nanjing University Center in China.  Ruth adds that the salary offered might not be what DC law schools normally pay but might work well with a sabbatical or grant arrangements, also that the position has not before gone to anyone but Americans, and finally that the search committee includes lawyers and non-lawyers, consistent with SAIS’s approach.  Anyway, if interested, contact JHU per below the fold.

“Knowledge”? What’s That? Never Seen That Word Before.

by Kevin Jon Heller

My favorite part of the Wall Street Journal‘s article on ATS litigation, discussed by Ken below, has to be this comment by the lawyer who defends such lawsuits:

In assessing liability, a key question can be whether companies assisted a foreign government that was known to violate human rights, says Joe Cyr, a New York lawyer who defends companies against alien tort claims. But the law is unclear, he adds, about what constitutes knowledge.

A statute that makes use of a particular mens rea and doesn’t define it?  You mean, like the thousands of criminal statutes, both federal and state, that don’t define them either, relying on the fact that the basic mental states in criminal law — negligence, recklessness, knowledge, intent, etc. — have been subject to judicial interpretation, and application by juries, for centuries?  How shocking!  And what is with this “aiding and abetting” thing we’re always hearing about anyway?  Is that some new social networking tool on Facebook that’s all the rage among the pre-teen set?

Call it “The Yoo Effect”: the idea that centuries-old principles of criminal law become radically indeterminate when applied to crimes and torts that conservatives approve of (like torture).  I look forward to the outpouring of conservative sympathy for the next Muslim prosecuted for aiding and abetting a violation of the federal biological weapons statute, 18 USC 175:

Whoever knowingly develops, produces, stockpiles, transfers, acquires, retains, or possesses any biological agent, toxin, or delivery system for use as a weapon, or knowingly assists a foreign state or any organization to do so, or attempts, threatens, or conspires to do the same, shall be fined under this title or imprisoned for life or any term of years, or both.

“Knowingly” assists?  Who the heck knows what that means?

WSJ News Article on Alien Tort Statute Cases

by Kenneth Anderson

The WSJ has a news story (Nathan Koppel, “Arcane Law Brings Conflicts From Overseas to U.S. Courts,” Thursday, August 27, 2009) on the rise of ATS suits against corporate defendants.

It quotes Curt Bradley, but interestingly (I thought, for an area traditionally dominated by academics), it has more quotes from practicing lawyers, including John Bellinger, Center for Constitutional Rights’s Katherine Gallagher, Paul Hoffman, and several others.  It is scrupulously even-handed in having both pro-plaintiffs and pro-corporate defendants in the article, for-and-against, for-and-against.  There’s nothing earth-shaking about it for those of us who follow this area, but I suppose a sign of the changing times that these suits against corporate defendants have produced a corporate defense bar.  What about disputes over corporate liability?  The article says:

The litigation has proven controversial. Some legal experts claim that opportunistic plaintiffs’ lawyers have seized on the long-dormant law to enrich themselves. Knotty geopolitical issues, they say, are better left to Congress and the White House, not unelected federal judges. But human-rights lawyers counter that victims of abuses often can’t obtain justice in foreign courts, making alien tort suits their only recourse. Both sides agree on one thing: Courts increasingly are willing to consider alien-tort suits and to force companies to answer for their behavior overseas.

“Think of a troubled spot in the world, and it likely has given rise to alien tort litigation,” says Curtis Bradley, a Duke University School of Law professor.

Adds human rights plaintiffs’ lawyer Paul Hoffman:

Most federal districts now allow suits against corporations for the same types of human-rights violations that can be brought against individuals — torture, extrajudicial killings, slavery-like practices, war crimes, says Paul Hoffman, a Los Angeles attorney who specializes in filing alien tort suits.

If you’re looking for a short, even-handed introduction to the current world of corporate ATS litigation – for a basic public international law class, for example – this is a pretty easy place to begin.

Do Student Law Review Editors Read Opinio Juris?

by Kenneth Anderson

A remark in passing by KJH (“law review editors, I mean you”) caused me to recall a question I’ve had for a while.  Do student law review, or international law review, editors read or know about OJ?  I have asked this question of my own school’s international law review editors over the last couple of years, and the answer was no.  It seemed as though something about the law journal experience tended to turn student editors inwards upon the review and all the work it entails – screening submissions, etc., etc. – rather than looking outwards to places that might provide clues about what kinds of topics are current.  My assumption is that student editors who might read OJ are not registered to be able to comment, so I won’t ask for editors to tell me via comments, but if you wanted to send an email to a personal email account, blaisecendrars2004 at yahoo dot you know the rest, I’d be curious about if you read, what you read, and why.  For that matter, if you’re a student at all and want to tell me what or why you read, I’d be interested too.

Update: I’d like to congratulate Boalt on its … sagacity and exceptionally high standards in blog reading; and thank Non Liquet for very generous response with many good thoughts – take a look at it.  Apparently you don’t need to register to comment, so you don’t need to send to my email address if you are moved to want to say something.  But read Non Liquet’s thoughts.

Is Qaddafi Going to Pitch His Tent in New Jersey? [REVISED]

by Chris Borgen

The local news in New York and New Jersey is abuzz this morning with unconfirmed rumors that, for the opening of this year’s UN General Assembly, Libyan President Muammar Qaddafi is planning to stay in an air-conditioned “Bedouin-style” tent  on the grounds of a residence owned by the Libyan government in Englewood, New Jersey, a suburban town of 30,000. According to the NY Times, he originally wanted to pitch his tent in Central Park, but that idea was nixed by NY city officials.

On the Brian Lehrer Show on WNYC, Congressperson Steve Rothman argued that while the U.S. has obligations under the UN Headquarters Agreement to allow Qaddafi into the country to attend UN meetings, that does not extend to his being able to choose to stay anywhere in the country. He may have been referring to Sec.13(d) of the Agreement, which states:

Except as provided above in this section and in the General Convention, the United States retains full control and authority over the entry of persons or property into the territory of the United States and the conditions under which persons way remain or reside there

Rothman, who, as it happens, had been the mayor of Englewood in 1982 when the Libyan government purchased the property, also argues that this issue has already been dealt with by the State Department. In 1982, he had asked the Reagan Administration for a finding curtailing the property’s use, which resulted in a State Department statement that only the Libyan Ambassador could reside there. (I have not seen the document, so I don’t know exactly what it is.)Rothman’s interpretation is that this precludes Qaddafi from staying there for any length. His interpretation is in part based on what he says was the intent of the declaration which was to prevent the land in Englewood from being used to house Qaddafi–or any other head of state–based on the concern that Englewood did not have the means to guarantee security for a head of state and that it would be too disruptive for town residents.

The Times reports that

A State Department official, speaking on condition of anonymity, said on Thursday, “We expect we’ll be able to come to an arrangement that will respect the sensitivities of the local population.”

[REVISION: I have realized that in the version originally posted, I inadvertantly left out that Qaddafi was planning on staying in the tent during the opening of this year’s General Assembly. I have corrected the original version of the text.]

The Death of a Customary Rule of International Law

by Roger Alford

Like Duncan, I had my first week of public international law. In a brief introductory discussion on customary international law one of the students asked, “How does a practice that has achieved the status of customary international law cease to become customary international law?” It is an interesting question. We spend plenty of time in international law classes discussing the formation of customary international law, but rarely do we examine the death of a custom.

Obviously there are a number of possible answers. A custom may be superseded by a treaty. Likewise, subsequent state practice may conflict with a previous norm, such that the emergence of one norm results in the eclipse of another. But the question also raises the possibility that customary international law may cease to exist under the doctrine of desuetude. It seems quite possible that some customs can become obsolete, but I struggle to think of many examples.

A quick search reveals that the question of applying the doctrine of desuetude to customary international law has rarely been examined by international law scholars. In this article, Michael Glennon has written a little about the doctrine, including the following provocative statement:

The idea of a tipping point, for example, is hardly unique to the notion of desuetude. It is a core problem in the methodology of customary international law formation, which requires the same inquiry in determining the point at which a nascent or emerging customary norm becomes binding. Traditional international law doctrine provides little useful guidance in telling us when that has happened. The emergence of desuetude with respect to a dying norm is no different. At some point, the balance tips; at some point, the rule changes; at some point, obligation shifts. Whether the issue is a rule’s birth or death, the process is the same.

I query whether that is accurate. Customary rules die in the same way they are formed, by reaching a certain tipping point in which they are no longer binding? That would seem to suggest that customary international law can only die when a practice no longer remains general and consistent. On this logic, a rule ignored by the majority of states ceases to be a rule altogether. Or does it remain binding for those minority states that continue with the practice? Is it also possible that a practice remains general and consistent, but that it ceases to be binding because opinio juris falls away? “We used to do it because we felt we had to, but now we don’t think we have to do it, we just do it because we want to do it.” Is that enough?

Just to give you a concrete example, I was at a conference at Stanford a few years ago with a bunch of international tribunal judges. Very impressive crowd. In the context of discussing pacta sunt servanda I made the passing comment that in the WTO context it appears patently clear that almost every prominent state is engaging in “efficient breach” behavior, making certain policy choices not to comply with WTO panel decisions and pay the consequences (including monetary penalties in the form of sanctioned tariff increases). Not surprisingly, I received a vigorous challenge from one of the most eminent judges in the world (who, by the way, was not a WTO expert). But the judge never answered the question as applied to the specific context in which I raised it. Is it possible that the doctrine of pacta sunt servanda (which of course is both a VCLT treaty obligation and a customary norm) is no longer followed at least in certain contexts? And if so, what does that say about the norm?

Comparative Health Care — And the Myth of American Exceptionalism

by Kevin Jon Heller

As an American who has lived and received health care in two other industrialized Western countries (New Zealand and Australia), I know first-hand how pathetic American health care really is compared to its foreign counterparts.  Unfortunately, because most Americans know very little about how the rest of the industrialized world provides (vastly superior and much cheaper) health care, conservatives have been able to peddle wilfully false caricatures of “socialized medicine” for years.

If every American read T.R. Reid’s “Five Myths About Health Care Around the World,” that might change.  It is by far the best and most concise debunking of conservative insistence that America has the best health-care system in the world that I have ever read.  Here is a taste — Myth No. 3:

3. Foreign health care systems are inefficient, bloated bureaucracies.

Much less so than here. It may seem to Americans that U.S.-style free enterprise — private-sector, for-profit health insurance — is naturally the most cost-effective way to pay for health care. But in fact, all the other payment systems are more efficient than ours.

U.S. health insurance companies have the highest administrative costs in the world; they spend roughly 20 cents of every dollar for non-medical costs, such as paperwork, reviewing claims and marketing. France’s health insurance industry, in contrast, covers everybody and spends about 4 percent on administration. Canada’s universal insurance system, run by government bureaucrats, spends 6 percent on administration. In Taiwan, a leaner version of the Canadian model has administrative costs of 1.5 percent; one year, this figure ballooned to 2 percent, and the opposition parties savaged the government for wasting money.

The world champion at controlling medical costs is Japan, even though its aging population is a profligate consumer of medical care. On average, the Japanese go to the doctor 15 times a year, three times the U.S. rate. They have twice as many MRI scans and X-rays. Quality is high; life expectancy and recovery rates for major diseases are better than in the United States. And yet Japan spends about $3,400 per person annually on health care; the United States spends more than $7,000.

Read the whole thing.  And then send it to everyone you know.

Everything You Ever Wanted to Know About TWAIL (But Were Afraid to Ask)

by Kevin Jon Heller

My friend and former colleague at Auckland, Mohsen Al Attar, has posted two new articles about TWAIL on SSRN.  The first, co-written with Rosalie Moore, is entitled “TWAIL Revisited – The Bolivarian Reconstruction of International Law.”  The second, co-written with Vernon Ivan Tava, is entitled “TWAIL Pedagogy – Legal Education for Emancipation.”

The abstracts are after the jump.  I highly recommend them!  (I’m looking at you, law review editors.)

When Should American Law Students Take International Law?

by Duncan Hollis

I started teaching my introductory course to international law this week.  I’ve got nearly 80 upper-level students, which is a pretty good number considering that an equal if not greater number of students had the opportunity this past spring to take international law as a first year elective.  Nor is Temple alone in moving international law into the first year curriculum.  Schools like HarvardGeorgetown,  Michigan and Virginia all offer ILs similar opportunities; while Pacific McGeorge continues to promote integrating international and comparative law angles into traditional first year courses.  And even recognizing that there remain quite a few schools where you have to wait until your second year to get a taste of international law, it still sure looks like international law is becoming a core course in law school.

Now, obviously, we international law professors love this heightened attention to our chosen speciality (indeed, we’re the ones who have spent so many years pushing to move international law out of the hinterlands of the law school curriculum where it lay for so many years).  Having international law as part of the first year course load confirms for many of us the significance and importance of our field to the practice of law (and, to be clear, I do think international law is of increasing importance to all lawyers, not just those who follow human rights, trade, or international environmental issues).

But, what about the student’s perspective?  Say you’re an incoming 1L interested in international law; should you take international law at the first opportunity (or might we even say if you’re really serious about becoming an international lawyer, you “must” take it as a 1L when it’s available)?  I can see clear arguments for why it makes sense to advise students to take international law courses early and often; they broaden the student’s conceptions of law beyond the traditional common law courses that predominate in the first year, while also giving students a foundation on which to take the more specialized international coursework that is increasingly necessary to becoming an international lawyer.

On the other hand, I like teaching international law to upper-level students.  They’ve got a deeper foundation in U.S. law, which makes it easier to explore how international law differs from domestic legal systems.   And, to the extent I spend a lot of time exploring how international law operates within the U.S. legal system, I like having students already versed in constitutional and criminal law subjects.  For example, I’m teaching Sanchez-Llamas and Medellin tomorrow, and I can’t imagine doing that with first years given how much time I’d need to spend explaining domestic legal issues like procedural default rules or federal court jurisdiction in lieu of focusing on the international law questions that make these cases so interesting and important.  I wonder if it’s not possible, therefore, that upper-level law students are more likely to “get” internaitonal law than their first year colleagues, and, as such, get more out of the course by taking if after finishing the first year.   

So, what do readers think?  If you want a career in international law, does it make sense to take international law as soon as possible, or can students get just as much of a foundation in this subject by waiting and taking it as a second (or even third) year student?  Or, is this–like many issues in legal education–one where we’d do well to take a case-by-case approach, where some students should be advised to take international law ASAP, while others with the same career aspirations would do well to wait a bit before doing so?

An International Criminal Tribunal for the Former Guantanamo Bay?

by Kevin Jon Heller

One of my favorite ICL scholars, Guenael Mettraux, recommends precisely that in a recent New York Times op-ed.  Here is the core of his pitch:

The Guantánamo detainees pose a similar conundrum today. Trying these men stateside would necessarily require the compromise of long-cherished principles of American law. Yet continuing to hold them without the prospect of a fair trial or delivering them to undemocratic governments are alternatives not worthy of the Obama administration or of the United States.

America’s own endeavors at Nuremberg offer a way out of this impasse: an international tribunal for detainees. Such a tribunal would allow the Obama administration to finally try these individuals and close down Guantánamo — and it would bring the nation back within the tradition of law and justice that it so forcefully defended six decades ago.

We need not look as far back as Nuremberg. Recent international tribunals for Sierra Leone, Cambodia and Yugoslavia have provided fair trials in challenging political environments to men and women accused of the gravest of crimes. In The Hague right now, an international criminal tribunal is looking into the terrorist attacks that shook Lebanon in 2004 and 2005. This tribunal — created by the United Nations Security Council at the initiative of the United States, among others — provides a ready model of a court capable of dealing with the detainees.

Those now held in Guantánamo would be placed under international control and their trials held on neutral ground. American and foreign judges and prosecutors with experience in international criminal cases would then be enlisted to provide the expertise required to hear these types of criminal cases. As with the Special Tribunal for Lebanon, it would be paid for by a combination of American contributions and voluntary donations from other nations.

I completely agree that the international community would view international prosecutions as far more legitimate than domestic US prosecutions — to say nothing of the trials held by the discredited and widely-reviled military commissions.  But I am very skeptical that an international tribunal is a realistic possibility, either politically or legally.

On the political side, I think the odds are vanishingly small that the international community would be willing to create a tribunal that could prosecute detainees but not the Americans who tortured them, ordered their torture, and rationalized their torture. Why should they participate in such one-sided justice, when the US has shown absolutely no willingness to abide by an international convention — the Convention Against Torture — that the US and 145 other states have ratified? I don’t see the upside for the international community, particularly given how expensive and difficult it is to create an international tribunal, even one of the hybrid variety.

I also fail to see how an international tribunal would solve the significant legal problems that the US faces in prosecuting the detainees…

Structuring a Peace Process

by Peggy McGuinness

I am a big fan of Laura Rozen’s work over at The Cable blog on  She posted a piece late Monday, “Getting to Yes on Middle East Peace Talks,” which offers a brief but fascinating peek into the art and science of mediating protracted conflicts — a topic I have written about here and here. I was particularly struck by the comments by both insiders and outside observers on how the substantive questions interplay with the issues of structuring and sequencing the overall process and identifying the appropriate parties (and, of course, the location of the yet-to-be-announced peace conference):

Aaron David Miller, a veteran Middle East peace negotiator for six secretaries of state, said Sunday that the Obama administration is planning to produce, “in late September or October,” either a conference or an announcement of a plan for a peace process — Madrid Plus, as he called it — involving at least three components:

  • A relaunch of Israel-Syrian and Israeli-Palestinian negotiations, as well as a track for resuming formal multilateral relations between Israel and other Arab states
  • An agreement with the Netanyahu government on a settlement freeze that goes further than any other Israeli government has ever gone, and one that would “grandfather in a large number of discreet units and quiet understandings on Jerusalem”
  • The resumption by Arab states — with or without the Saudis, but including the Bahrainis, other Gulf states, Tunisians, and Moroccans — of liaison offices or interest sections with Israel.

“And they are going to wrap the whole thing in an event — a conference or an announcement,” Miller, now with the Woodrow Wilson Center, said. It’s not clear if or where such an international conference or talks launch would take place. Western diplomats have told The Cable that both Russia and France are keen to host such a conference.

Some officials and Middle East hands have suggested that an announcement of the administration’s plan for how to proceed in the Middle East could come around the time of the U.N. General Assembly opening session in New York later next month, along with several Middle East and Iran related announcements.

Miller is effusive about the scope and significance of the prospective settlement freeze agreement the Obama and Netanyahu governments may be poised to strike, which he described as unprecedented.

* * *

But Miller remains pessimistic about the outcome of prospective negotiations between the Israelis and the Palestinians. “Can they reach a conflict-ending agreement right now? That’s a bridge too far,” Miller said, citing the gaps between Israeli and Palestinian positions on the issues of borders, Jerusalem, security, and the right of Palestinian refugees to return to ancestral homes in Israel. He also said negotiations will be hampered by the lack of a really representative Palestinian government.

“That is the point,” agreed Cohen, the director of the Institute for Middle East Peace and Development and author of a new book, Beyond America’s Grasp: A Century of Failed Diplomacy in the Middle East. The United States is “acting as if there is a strong state” among the Arab states, he said. “But there is no leader who can make a decision who can carry the day. [Similarly], there is no strong leader in Palestine who can make a decision.”

“Essentially there is an impasse that can only be broken if the U.S. proceeds to publish a ‘peace plan’ or coerce the two sides into some dialogue,” a former senior Israeli official told The Cable. “So now the U.S. has to craft a policy that is comprehensive in scope (i.e., incorporates the Arab League Plan and the Syrian track) but one that is balanced between Israel and the Palestinians. The big carrot [on the Obama side]: ‘Let’s deal together with Iran.’ The big stick: ‘If you’re not on board, we’re out to lunch for 1-2 years. Otherwise, [there are] more pressing things to do.'”

In the meantime, no big news out of the Mitchell/Netanyahu meeting in London today, apart from announcing the need for “meaningful talks” and that officials will meet with Mitchell in Washington next week.  So the ball is moving, but it’s unclear whether Mitchell is gaining yardage.  It is, I think, a very good thing from the U.S. perspective that other news stories are crowding out Mitchell’s diplomacy. It gives all the parties some breathing room and keeps the day-to-day pre-negotiations about the later talks off the president’s public agenda.

It’s a Bad Month to Be Ban Ki-moon

by Peggy McGuinness

The success of a UN Secretary General is largely dependent on two things:  (1) the charisma and personal drive of the office holder; and (2) his (to date, they have all been men) ability to lead and work well with the Secretariat.  On both dimensions, recent evidence suggests Ban Ki-moon appears to be in real trouble.  Unless he turns things around, he is beginning to look like a one-term SG.  While a low-key, largely absentee SG might have been exactly what the Bush administration was looking for, none of this is good news for the Obama administration, which is looking for a more robust partner in the UN on a whole host of foreign policy issues. As some are speculating, Ban’s recent turn of really, really bad PR may benefit UNDP Chief and former New Zealand Foreign Prime Minister Helen Clark, rumored to be in the running to fill the seat should Ban not be reappointed.  Perhaps it takes a spectacular failure to path the way for the first woman SG!  Stay tuned….

‘Makers of Military Drones Take Off’:

by Kenneth Anderson

So says the headline of a WSJ news article today (Monday, August 24, 2009, B1, by August Cole), noting that unmanned aircraft – drones such as the Predator to us civilians, although the Pentagon seems to prefer UMV – are transforming not just the military, strategic as well as tactical considerations, but defense contracting.  (PopSci ran a story a little while ago on the training of UMV pilots as well.)  The WSJ article notes that the administration’s fiscal 2010 defense budget request “includes approximately $3.5 billion for unmanned aerial vehicles.”  The demand is robust enough that the Pentagon is reaching beyond the contracting behemooths such as Lockheed and Boeing to smaller manufacturers, such as General Atomics Aeronautical Systems, Inc., which makes Predators.  (General Atomics, GA, is privately held and so there isn’t stock price information, but it’s an interesting company overall.  I would guess, without knowing, that its private equity investors are happy indeed.)  The WSJ article describes some of the basic economics of manufacture, operation, costs, personnel and training costs, etc. of the drones ….

Score One for the Semi-Autonomy of Law

by Deborah Pearlstein

Cross-posted at Balkinization

UPDATE: The long-awaited report by the CIA Inspector General completed in 2004 and kept secret since has now been released by the Administration. The memos former Vice President Cheney says demonstrate the efficacy of torture in eliciting information are also now available. Note the Cheney memos are heavily, heavily redacted and it is impossible to tell how the information they described was obtained from detainees.

Today’s news that the Attorney General has decided to appoint a prosecutor to investigate some of the most egregious acts of torture committed by the U.S. government after September 11 will I hope be greeted with some praise by the human rights community, and by the many Americans who have sought some accountability for the most notorious acts of abuse. To be sure, the prosecutorial hurdles in these cases remain substantial, so it is unclear what if anything will ultimately result. (Among many other things, years have passed since some of the most troubling detainee deaths in custody. A report I worked on a few years back reviewed thousands of pages of FOIA’d government documents and concluded that nearly 100 detainees had died in U.S. custody as of 2006, at least 8 of whom had been, by any definition, tortured to death.) It also remains unclear just what the scope of the investigation will be, what it might become, and what else might be done (outside the criminal justice system) to gain and assimilate lessons learned from U.S. detention and interrogation operations in recent years.

For these among other reasons, I think today’s announcement is better understood as a modest victory for the more general (call me quaint) notion that there remains a meaningful distinction between power politics and law. It may well be that the Administration will take at least some kind of political hit for the decision of its Attorney General. Could be the hit will be in lost votes on the Hill. (Ubiquitous health-care-negotiator Senator Grassley (R-IA) is among those who have been vocal in opposing further investigation.) Could be any impact will be tempered (for better or worse) by other, more pressing items on the Administration’s political agenda. Either way, given the President’s repeated statements following the election that he wished to look forward, not back, on questions of accountability for torture, it seems likely the President wouldn’t have picked just now, in the midst of the health care fight of the century, to go down this road if he could avoid it. As it turns out, though, today’s news suggests that it is possible to have a President who actually believes in the prosecutorial independence of the Attorney General. And an Attorney General who actually believes in the law. If reports are true, it’s one good step. We’ll see what comes next.

Supreme Court Review of ATS Corporate Liability

by Roger Alford

Kathleen Sullivan has filed a petition for certiorari (2009 WL 2173302) in Abdullahi v. Pfizer arguing that there is a circuit split on the question of corporate liability under international law:

There is no general international common law of torts. Thus, to establish subject matter jurisdiction under the ATS for a violation of international law by a private corporation or individual, plaintiffs in most cases must allege that the private actor acted under color of law or in concert with a foreign government.

The Second Circuit’s decision, however, conflicts with decisions of other circuits as to the degree of state action required to transform a private party into a state actor for ATS purposes. The Fifth, Ninth, and Eleventh Circuits all have rejected ATS complaints that were based on purported state action but that failed to allege that the foreign government knew of or participated in the specific conduct alleged to violate international law. The Second Circuit, by contrast, held below that respondents had sufficiently alleged state action merely by referring to the Nigerian government’s general assistance to Pfizer without any allegation that the government knew of or participated in Pfizer’s alleged failure to obtain adequate consent to the clinical trial of Trovan. This holding conflicts with the decisions of other circuits that have found state action adequately invoked only by allegations that the state was specifically involved in the allegedly wrongful conduct, either as a matter of official state policy or under color of law.

The Second Circuit’s decision allows respondents to proceed with their ATS claims despite their failure to allege that the Nigerian government knew of or participated in the specific conduct by Pfizer that is claimed to violate international law – namely, the administration of a clinical trial without adequate consent. … No other circuit has so permissively interpreted the degree of state action required to make out violations of international law cognizable under the ATS.

Earlier this month, Professor Arthur Miller filed a brief in opposition (2009 WL 2473875) arguing that there was no circuit split and that state action is not even required under international law:

The Second Circuit noted, in addition to those allegations highlighted by the District Court, allegations that (1) the “Nigerian government and government officials” assisted in the unlawful conduct, (2) the Kano experiment was “jointly administered” by American and Nigerian members of Pfizer’s team, and (3) the Nigerian government, “according to a Nigerian physician involved in the Trovan experimentation, appeared to ‘back[]’ the testing.”

The Second Circuit’s decision in no way expands the concept of state actor under the ATS. Even if this Court were to accept Petitioner’s proposed “knowl-edge or participation” test for determining whether a private actor functions as a state actor, Respondents’ allegations as described above satisfy that test. More-over, even if the allegations in the Complaints were somehow deemed inadequate on this point, on re-pleading such inadequacy could be cured quickly and easily by reference to, inter alia, Pfizer’s own public statements.

Even if there were a conflict regarding what is necessary to show state action, or if Respondents were unable to show state action in this case, certiorari should be denied because state action is not required to sustain a claim under the ATS. Indeed, this Court in Sosa clearly contemplated international norms reaching private actors, as in this case.

Finally, earlier this month Professor Jack Goldsmith filed an amicus brief (2009 WL 2473873) on behalf of the American Chamber of Commerce. The summary of his argument is as follows:

Corporations are not subject to international law except in a few well-defined instances (like war crimes and genocide). The lower courts have permitted plaintiffs to skirt this limitation by alleging links between corporate behavior and state behavior that, the lower courts conclude, bring corporations within the international law-based causes of action available under the ATS. Courts have done this not only in cases, like the one below, where corporations are the primary alleged wrongdoer and states allegedly facilitate the wrongdoing, but also in cases where states are the primary alleged wrongdoers and corporations allegedly facilitate the wrongdoing, as well as in cases where corporations are linked to states via intermediary private parties. The central legal disagreement concerning the appropriate state/private actor link in all three types of case is whether the actor facilitating the wrongdoing (be it a state or a private party) must have actual knowledge of the specific wrongdoing by the primary wrongdoer (be it a state or a private party). This case is an excellent vehicle to resolve this issue, because the majority and dissenting opinions below clearly addressed it and sharply disagreed about it.

Regardless of one’s views about corporate liability in the ATS context, there is little doubt that the federal circuits are in disarray and that Supreme Court guidance would greatly assist in the development of the law.

The Pfizer case is a particularly good vehicle to develop the law because it so clearly departs from the direction of other circuits regarding the state action requirement. The facts also are particularly unusual, with the alleged corporate misconduct almost completely divorced from any government conduct, or even knowledge of the misconduct. Contrast that with the South African apartheid case of Khulamani v. Barclays where the principal bad actor was the South African government and the corporate misconduct appeared to be peripheral.

Eventually the Court must consider corporate liability in the ATS context. With a circuit split, great counsel on both sides, and highly unusual facts that almost beg for clarification on the proper standard, Pfizer may be the ideal case.

National Law School of India Review: Call for Papers

by Roger Alford

I received this notice that I thought our readers may find of interest:

The National Law School of India Review (NLSIR) is the flagship journal of one of India’s premier law institutions, the National Law School of India University, Bangalore. The NLSIR is a peer-reviewed journal, and is published twice a year. The latest issue – Volume 21(1) – included contributions from Justice S.B. Sinha, Judge, Supreme Court of India; Mr. Hans Koechler, Professor of Philosophy and International Observer at the Lockerbie trials; Mr. Arvind Datar, Senior Counsel, Mr. Geoffrey Loomer, Said Business School, Oxford and others. Details are available here. Volume 21(2) – a symposium issue focusing on arbitration – is scheduled for publication in the coming month.

The NLSIR is now accepting submissions for Volume 22(1). The issue will be published in early 2010. Submissions may be made as Long Articles, Essays or Comments; on any legal topic of interest to an international readership. Submissions may be made to mail [dot] nlsir [at] gmail [dot] com and queries regarding submission or subscription information may be made at the same email address.

Ruth Wedgwood on the Lockerbie Release, and the Politics of Security Council Resolutions

by Kenneth Anderson

Ruth Wedgwood comments at Forbes magazine website on the “compassionate” release of Al-Megrahi from prison in Scotland ….

Lyin’, Cheatin’ Robots

by Kenneth Anderson

What are the implications of robotic technology on the battlefield if robots were capable of developing self-evolving capacities to deceive, lie, and cheat?  What are the implications of that for battlefield robotics?  PopSci gives a report of a Swiss robotics experiment with evolving generations of robots engaged in a search-for-yummy-food task but with a twist – an in-built desire to hide and hoard the food source for oneself.  (I think I was too obscure before; let me update by adding … on the battlefield, you might be considered, as a target, the equivalent of really yummy food!)

Thoughts on Dean Edley’s Email About John Yoo

by Kevin Jon Heller

I want to offer a few thoughts on Dean Edley’s email, which I appreciate Deb posting.  I am much less impressed by his reasoning than Deb appears to be.  (And please, Deb, correct me if I am wrong about that.)

At the outset, it is important to note that I think Dean Edley’s conclusion — that Yoo cannot be fired, at least at this point — is unassailable.  As he points out, University of California policy permits the termination of a tenured faculty member only for “[c]ommission of a criminal act which has led to conviction in a court of law and which clearly demonstrates unfitness to continue as a member of the faculty.”  Yoo has not been convicted of anything, nor is it likely that he ever will be. Rightly or wrongly, that’s the end of the matter — even if it’s clear that the failure to prosecute Yoo reflects Obama’s willingness (perhaps even desire) to whitewash the crimes of his predecessors, not the legal merits of the case against Yoo and the other torture lawyers.

Had Dean Edley stopped there, I would not have felt the need to write this post.  But he also makes a number of statements in defense of Yoo that I think are extremely questionable — to put it mildly.

First, consider what he says about Yoo’s (evident) First Amendment and Due Process rights:

These protections, while not absolute, are nearly so because they are essential to the excellence of American universities and the progress of ideas. Indeed, in Berkeley’s classrooms and courtyards our community argues about the legal and moral issues with the intensity and discipline these crucial issues deserve. Those who prefer to avoid these arguments—be they left or right or lazy—will not find Berkeley or any other truly great law school a wholly congenial place to study. For that we make no apology.

This is an unobjectionable statement, insofar as it is addressed to the individuals who are disrupting Berkeley classes as a form of protest against Yoo.  The anti-Yoo protesters have every right to post signs in his neighborhood and make their feelings known on the Berkeley campus, but they have no right to disrupt classes.  Let’s not forget, though, that Yoo’s torture memos, not his scholarship, are what’s being debated.  Those memos were written in secret, considered in secret, executed in secret, and held in secret.  But for the tireless efforts of progressive civil-liberties groups, they would still be secret.  It was the Bush administration who spent years trying desperately to “avoid these arguments” — so I think the protesters can be forgiven, though certainly not excused, for the zeal with which they are prosecuting the debate now.  They were denied that right when it mattered.

Does what Professor Yoo wrote while away from the University somehow place him beyond the pale of academic freedom today, when he is back on campus?… Consider the more contemporary possibility of a pro-choice professor, who wielded power while on leave serving in government, or gained notoriety leading weekend rallies. The professor is attacked at his college, a socially conservative place where the prevailing view is that abortion is murder and active defenders of a woman’s right to choose are complicit in infanticide. In Professor Yoo’s case, additional things are obviously in play. Gravely so, because some of the views he authored while a professor were merely controversial back then; while in government those same views became consequential.

This is a completely inapposite comparison, given that a pro-choice professor who promoted pro-choice policies while in government would not be committing a criminal act.  Abortion is legal; torture isn’t.  Indeed, Dean Edley seems to recognize that his comparison makes no sense, because he immediately qualifies it by pointing out that, in Yoo’s case, “additional things are obviously at play.”  (A wonderful euphemism, given that at least one “additional thing” is that Yoo’s ideas led directly to torture and murder.)  Why, then, make the comparison at all…

Aaron Zelinsky on Lockerbie and Guantanamo

by Kenneth Anderson

Aaron Zelinsky, YLS ’10, smart person and occasional correspondent with me, has an article up at HuffPo arguing for a certain parallel (a negative one) between the Lockerbie release this week and the Guantanamo detainees.  Aaron argues that it was wrong for the Lockerbie bomber to have been released, and would not have been, had he been tried and convicted and held in the US, not Scotland, which had arguably less of an interest in the case than the US, at least as measured by nationals lost.  Likewise, Guantanamo detainees should be brought to the US for trial and serving of sentences if convicted, so that some foreign jurisdiction is not able to let them go.  The article can be found here.  Here is a bit of the argument:

After President Obama pledged to shut down Guantanamo, Congress passed legislation prohibiting the transfer of any ex-Guantanamo detainees to the U.S. mainland. As a result, the Obama administration is now feverishly negotiating with foreign countries to take Guantanamo detainees. Once these detainees are transferred, the United States will lose control over them. Even if some are convicted for crimes against Americans, we will have no say as to their sentences, paroles, or future “compassionate release.”

There may well be innocent men on Guantanamo. We thus need a full and fair process to evaluate their respective guilt, and thereby release the innocent. However, Guantanamo also likely holds terrorists who helped plan and carry out attacks against Americans.

If these men are convicted in a full and fair proceeding, they will face significant jail sentences, just like al-Megrahi. These sentences should be served in the United States, not overseas.

If instead all Guantanamo detainees are sent abroad, the United States will lose jurisdiction over them. In a few years, for example, self-proclaimed 9-11 mastermind Khalid Sheik Mohammed could be released by a foreign nation on “compassionate” grounds. Moving Gitmo detainees abroad is an easy course of action now, but it has troubling long-term consequences: the loss of U.S. control over the punishment of those detainees who, after due process, are convicted of killing Americans.

For various reasons, I probably don’t buy the aptness of the connection of the Lockerbie bomber’s case to that of the Guanantamo detainees.  To start with, the most difficult Guantanamo situations are those in which you don’t think you could obtain convictions in any ordinary criminal trial, and yet you neither doubt objective guilt and for reasons of imminent forward looking public safety will not the person go.  I do think Aaron has a point about releasing people whose activities were fundamentally about Americans into the hands of people for whom the safety of Americans is far from a paramount concern, whether that be a Scottish court or a Saudi prince.  Anyway, Aaron’s pieces are always an interesting read, agree or not, and I recommend checking this one out.

Dean Edley on Professor Yoo

by Deborah Pearlstein

Controversy continues to surround John Yoo and the memos he wrote while a Justice Department lawyer that were used as the legal basis for torture in U.S. interrogation operations. Under the circumstances, I thought it appropriate to reprint here an email recently circulated to UC Berkeley faculty, administration and students by Dean Christopher Edley of Berkeley Law School. (Happy to hat tip the sources who passed the email along, but I’ll defer for now in case they’d prefer to remain anonymous.) Dean Edley is responding to substantial public protests surrounding Professor Yoo’s return to his tenured professorship in law at Berkeley. In the interest of full disclosure, I should say I am grateful to have had Chris Edley as a professor when I was a law student. Far more to the point, however, I thought the email was thoughtful, important, and worth consideration. It’s reprinted in its entirety below.

Trying to Remember Why We’re Closing Gitmo?

by Deborah Pearlstein

Cross-Posted at Balkinization

Following my testimony last month to the Senate Judiciary Committee’s Subcommittee on Terrorism and Homeland Security on military commissions and the like, Senator Kyl (R-AZ) was kind enough to send along some follow-up questions to answer. His first follow-up question was one of the same as one he’d posed in the hearing itself: What if any empirical evidence is there to support President Obama’s statement that “the existence of Guantanamo likely created more terrorists around the world than it ever detained.”

It’s a fair and important question – one it’s likely the President is in a better position to answer than I. Nonetheless, it gave me occasion recently to start compiling some of the reports I’ve found most persuasive over the years that led me to conclude the President’s view had merit. For your summer reading entertainment (and before Congress comes back and starts back-pedaling the otherwise sweeping bipartisan consensus in favor of closure again), I thought I’d start a list here. If folks have other sources they’d like to recommend, or of course comments either way, feel free.

• Matthew Alexander’s statements are pretty powerful. A veteran Air Force counterintelligence agent who served as a senior interrogator for the United States in Iraq, Alexander wrote: “I learned in Iraq that the No. 1 reason foreign fighters flocked there to fight were the abuses carried out at Abu Ghraib and Guantanamo. Our policy of torture was directly and swiftly recruiting fighters for al-Qaeda in Iraq. The large majority of suicide bombings in Iraq are still carried out by these foreigners. They are also involved in most of the attacks on U.S. and coalition forces in Iraq. It’s no exaggeration to say that at least half of our losses and casualties in that country have come at the hands of foreigners who joined the fray because of our program of detainee abuse.”

• Alexander wasn’t the first to say as much. On June 17, 2008, former Navy General Counsel Alberto Mora testified to the U.S. Senate Committee on Armed Services as follows: “[T]here are serving U.S. flag-rank officers who maintain that the first and second identifiable causes of U.S. combat deaths in Iraq – as judged by their effectiveness in recruiting insurgent fighters into combat – are, respectively the symbols of Abu Ghraib and Guantanamo.”

• In 2008, McClatchy news service published a detailed series of reports on the Guantanamo Bay detention program that it based on interviews with U.S. officials, foreign intelligence services, and former detainees. The reports concluded, among other things, that “instead of confining terrorists, Guantánamo often produced more of them by rounding up common criminals, conscripts, low-level foot soldiers and men with no allegiance to radical Islam — thus inspiring a deep hatred of the United States in them — and then housing them in cells next to radical Islamists.”

Eritrea-Ethiopia Claims Commission Awards Final Damages

by Duncan Hollis

Yesterday, the Eritrea-Ethiopia Claims Commission awarded final damage awards for the fifteen partial and final awards on liability it rendered between July 1, 2003 and December 19, 2005. You can access the damages decisions for Eritrea here, and those for Ethiopia hereAccording to the AP, both sides will accept the awards, but neither is apparently thrilled with the final results.  Ethiopia ends up with more money; its final award totals $174,036,520, while Eritrea receives $161,455,000 plus an additional $2,065,865 for individual Eritrean claimants.  Ethiopia apparently feels though that the delta between the two awards was insufficient given earlier rulings had found Eritrea violated the jus ad bellum in originally resorting to force in 1998. For its part, Eritrea remains miffed that Ethiopia has resisted the Commission’s drawing of boundary lines between the two states (e.g. giving Badme to Eritrea), a point reiterated (subtly) in its acceptance of yesterday’s award.  Here’s Eritrea’s official statement:

On Monday, 17, August 2009, the Eritrea-Ethiopia Claims Commission (“EECC”) delivered its Final Awards regarding violations of international law during the 1998-2000 border war. The EECC was established by Article 5 of the Algiers Agreement, the same legal instrument that created the Eritrea-Ethiopia Boundary Commission (“EEBC”), which rendered its boundary Award in April 2002. Eritrea is well aware of the interference that has impaired the administration of justice. Nonetheless, and irrespective of the plausibility of the evidence and legal instruments invoked to arrive at the Award, the Government of Eritrea accepts the Award of the Claims Commission without any equivocation due to its final and binding nature under the Algiers Agreement. This is indeed consistent with Eritrea’s track record of respecting arbitration decisions that emanate from its treaty obligations. The Government of Eritrea expresses its profound gratitude to its legal counsel who toiled extremely hard to compile the necessary evidence and to advance robust legal arguments in order to ensure justice. The legal filings have not yet been made public due to procedural requirements of confidentiality during the litigation process. Now that the Award has been announced, the Government of Eritrea intends to put all these proceedings in the public domain for their judgmental and educational purposes to posterity.

As for the Commission itself, it explained that evidentiary hurdles proved critical to the amounts it felt able to award for damages on both sides:

1. With this Final Award in Eritrea’s claims for damages, and its companion Final Award in Ethiopia’s damages claims, the Eritrea-Ethiopia Claims Commission largely completes its work. The Commission appreciates the cooperation it has received from both Parties and their counsel throughout the damages phase of these proceedings, as in the earlier liability phase. Nevertheless, this phase has involved enormous challenges. Through their counsel, the States of Eritrea and Ethiopia have sought to quantify the extent of damage resulting from violations of international law previously found by the Commission. As discussed below, the Commission has sought to apply procedures and standards of evidence that take account of the challenges facing both Parties. Nevertheless, these are legal proceedings. The Commission’s findings must rest on evidence. As the Commission has emphasized throughout, compensation can only be awarded where there is evidence sufficient in the circumstances to establish the extent of damage caused by conduct the Commission previously found to have violated international law.

2. Accordingly, the Commission notes that its awards of monetary compensation for damages are less – probably much less – than the Parties believe to be due. The Commission thus stands in the tradition of many other past claims commissions that have awarded only a fraction of the total amounts claimed. Its awards probably do not reflect the totality of damages that either Party suffered in violation of international law. Instead, they reflect the damages that could be established with sufficient certainty through the available evidence, in the context of complex international legal proceedings carried out by the Parties with modest resources and under necessary pressures of time.

3. In that connection, the Commission notes that evidence of the extent of physical damage to buildings and infrastructure is more readily gathered and presented than is evidence of the extent of injuries, including physical, economic and moral injuries, to large numbers of individuals. That fact may well have led to the lesser extent of evidence that often was offered in support of claims based on injuries to individuals. Moreover, as the claims addressed in this Award are almost entirely claims by the State Party for compensation for violations of law that it has suffered, rather than claims on behalf of its nationals, the Commission has been compelled to make judgments not as to appropriate compensation for individual victims, but instead as to the relative seriousness of those violations of law and the effects they had on the Claimant State Party.

There’s a lot to digest here.  And I may have more to say later on specific issues.  But, for now, I wanted to flag the awards and the reactions.  I’d be interested to hear reader reactions as well — do folks think these decisions will have much influence on the future law of damages generally, or are these awards of interest only to those who follow politics in the Horn of Africa?

As for the details of the awards themselves, you can find them after the jump.

Call for Papers — Journal of International Law and International Relations

by Kevin Jon Heller

The Journal of International Law and International Relations, published by the University of Toronto, is actively seeking submissions.  Here is their call for papers:

Call for Submissions
Volume 6, Issue 1 (Fall 2009)
Deadline for Submissions: September 21, 2009

The Journal of International Law and International Relations (JILIR) invites submissions from scholars of both International Law and International Relations for its Fall 2009 issue. The JILIR is a peer-reviewed scholarly journal that seeks to develop interdisciplinary discourse at the nexus of two dynamic and relevant disciplines.

The JILIR recently celebrated its fifth anniversary with an issue guest-edited by Antje Wiener, and with a thematic issue focused on secession. The Journal is now returning to its general mandate, and is welcoming submissions on the wide variety of topics located in the intellectual space jointly occupied by International Law and International Relations.

A joint venture of the University of Toronto Faculty of Law and the Munk Centre for International Studies, the Journal’s advisory board is comprised of scholars from both International Law and International Relations, including Kenneth Abbott, Jose Alvarez, Upendra Baxi, Laurence Boisson de Chazournes, Jutta Brunnée, Michael Byers, Martha Finnemore, Robert Keohane, Benedict Kingsbury, Karen Knop, Martti Koskenniemi, Stephen Krasner, Friedrich Kratochwil, Oona Hathaway, Réné Provost, Philippe Sands, Shirley Scott, Gerry Simpson, Janice Gross Stein, Stephen Toope, and Rob Walker.

Please send submissions via e-mail to submissions [at] jilir [dot] org as attachments in Microsoft Word or Rich Text format. Please include the author’s full contact information (name, institutional affiliation, mailing address, telephone number(s), and e-mail address) in the body of the e-mail.

It’s an excellent journal, published by one of the world’s great law schools.  I hope our readers will consider submitting.

More “Private” International Law Blogging

by Duncan Hollis

A few weeks ago, a regular reader asked why we don’t do more with private international law/conflicts of law matters here at Opinio Juris.  I’m not sure I had a good answer.  Certainly, those who follow these topics already have some resources to turn to, most notably the European-based Conflicts of Law.Net blog.  But these are important topics, and those who follow international law generally should certainly keep an eye on them as well.  To that end, let me flag two recent publications.

First, for a new take on conflicts of law, check out Thomas Main‘s forthcoming article in the Washington University Law Review, rethinking the substance/procedure distinction.  Here’s the abstract:

The substance-procedure dichotomy is a popular target of scholarly criticism because procedural law is inherently substantive. This article argues that substantive law is also inherently procedural. I suggest that the construction of substantive law entails assumptions about the procedures that will apply when that substantive law is ultimately enforced. Those procedures are embedded in the substantive law and, if not applied, will lead to over- or under-enforcement of the substantive mandate. Yet the substance-procedure dichotomy encourages us to treat procedural systems as essentially fungible—leading to a problem of mismatches between substantive law and unanticipated procedures. I locate this argument about the procedural foundation of substantive law within a broader discussion of the origin and status of the substance-procedure dichotomy.

And for those who might be interested to see what conflicts has to say about the relationship between international and domestic law, check out this short piece by Karen Knop, Ralf Michaels, and Annelise Riles

The relationship between international law and domestic law is rarely understood as a conflict of laws. Understanding it in this way opens up a parallel with the field of conflict of laws: the field for which the relationship between legal systems, especially the role of another system’s jurisdiction, laws, and judgments vis-à-vis the domestic legal system, are exactly the bread-and-butter issues. We argue for such an approach to international law in domestic courts: an approach that we elaborate as “theory through technique.”

In our view, conflicts should be seen broadly as the discipline that developed to deal with conflicts between laws, without necessarily being committed to any one method or policy. Surprisingly, we demonstrate that it is precisely the seemingly negative features of conflicts – the field’s high degree of technicality disparaged as a “conflict-of-laws machine” and the multitude of theories famously deemed a “dismal swamp” – that figure among the advantages of a conflict-of-laws approach to international law in domestic courts.

A conflict-of-laws approach offers ways to respect the nature of international law as law, without simplifying that nature by characterizing it exactly as domestic law. In addition, seeing the parallel with conflict of laws brings a wealth of experience that can enrich and refine the debate on international law in domestic courts. Finally, the parallel with conflicts changes international law in domestic courts from a specific problem addressed by international and constitutional lawyers into a general problem of relativism – which, we argue, conflict of laws is uniquely positioned to address.

Call for Papers – 2010 ASIL Lieber Society Military Prize

by Kenneth Anderson

Below the fold is the official call for papers for the 2010 ASIL Lieber Society Military Prize essay.  To enter a paper, you do not have to be a member of ASIL, but you do have to be a member of your “nation’s regular or reserve armed forces.” This particular essay contest, in other words, is for military personnel.  The prize is for an “exceptional writing that enhances understanding of the law of war.”

While I am at it, let me encourage any readers who are not already members of the American Society of International Law to consider joining.  And if you’re joining, and your interests include law of armed conflict, you can also join the interest group section of ASIL on that topic, the Lieber Society.

USTR Closes Barn Door After Horse Leaves

by Duncan Hollis

The Office of the U.S. Trade Representative frequently does impressive work; witness the U.S. WTO victory this week over China.   But when it comes to openness and transparency, USTR’s efforts do not have the same shine; this is an agency notorious for its resistance to traditional inter-agency procedures (e.g., the C-175 procedure), let alone opening up its work to the public eye.  

So, I was not surprised to read Steve Charnovitz‘s recent blog posts (see here and here) over at Eyes on Trade.  There, he details his failed efforts to have USTR release copies of certain November 19, 1996 U.S. agreements with Russia on market access.  Both Steve’s informal requests (e.g., e-mailing the Ambassador, calling USTR) and more formal efforts (e.g., using the Freedom of Information Act (FOIA)) went nowhere.  Here’s Steve’s take on his FOIA request:   

I had written to the USTR FOIA officer, Carmen Suro-Bredie, on November 19, 2008.  The US-Russia agreement was negotiated as part of Russia’s longtime efforts to join the World Trade Organization and I was interested to see the precise terms of this legal arrangement.

Ms. Suro-Bredie denied my request in a letter dated July 28, 2009 which I received on August 3.  She said that the completed trade agreements are considered “foreign government information” that are exempt from disclosure under Exemption 1 of the FOIA [relating to classified defense and foreign relations information].  In addition, she described her turndown letter as a “complete response to your request,” and advised that “I am closing your file in this office.”

Although I was surprised about how long it takes to get a response from USTR (251 days elapsed between November 19 and July 28), I was not surprised by USTR’s position that it will disclose only what it is required to by law. As a veteran USTR watcher, I have observed that USTR is hardwired to keep trade treaties and negotiations as secret as possible from the American public. . . . But I was surprised by the specific reason Ms. Suro-Bredie gave for the denial. Her letter states: “The individual (unimplemented) agreements are protected from public disclosure as Confidential WTO Information under WTO procedures to which the U.S. has agreed.” I was surprised by this because I had not been aware that the WTO had adopted binding obligations which prevent the United States from disclosing its agreement with Russia to the American public. Certainly, Article XII of the WTO Agreement (Accession) says nothing about a secrecy pact, and the webpage on the WTO website for Accession does not contain any information about such a nondisclosure requirement in WTO regulations. . . 

Wow!  It sure looks like no one will see these November 19, 2006 agreements anytime soon, right?  Or, maybe Steve just asked the wrong office.  If one heads over to the State Department, you can see on their website (in .pdf no less!) the texts of eight different USTR agreements with Russia on various issues of market access, dated . . . (wait for it) . . . November 19, 2006 (see here, here, here, here, here, here, here, and here). 

Now, maybe Steve and USTR have been haggling over different November 19, 2006 market access agreements with Russia?  But, I doubt it.  So, how come State made these agreements available, but USTR did not?  The answer lies in the Case-Zablocki Act, 1 U.S.C. 112b(a):

Microfinance Creating Credit Bubble in Places in India?

by Kenneth Anderson

The WSJ has a very important (and certain to be much debated) story today on the front page, “A Global Surge in Tiny Loans Spurs Credit Bubble in a Slum,” WSJ, A1, Thursday August 13, 2009.

The article examines a particular case in which it says – quite correctly, I believe – that the easy availability of microcredit funds globally is creating local credit booms – easy money that cannot, however, generate the necessary returns to pay it back.  if this is correct on a larger scale, then there are probably some serious discussions that need to be held about how quickly the microfinance sector can absorb a flood of new funds.  I am very deeply interested myself, as someone who has done a lot of pro bono advising on the law and finance sides of this, and have long been committed – at least before the credit crisis – to the view that it was necessary to find ways to draw funds from the regular capital markets into the activity, perhaps through securitizations or other pooling devices.

But I have always wondered a bit about the banking model here.  Mostly that is on account of my experience which, true, is very particular and maybe just one bit of the elephant.  But I have long had the view that if you looked very hard behind, for example, the impressive repayment rates always glowingly quoted for microfinance, you discovered quickly that the administrative, monitoring, selection, and technical assistance costs to ensure those repayment rates swallowed the profits involved in tiny loans.  A whole cottage policy industry has grown up both trying to show that assumption false and (a much better idea) to find ways to tweak the system to make it work.  But it’s not a matter of financial engineering on the supply of capital end; it is the day to day management of lending.  In the end, I don’t think of it as bank lending in the sense we are (or anyway were supposed to be) used to, of a passive lender not doing much to closely monitor or control the borrower.  In my experience, it is a lot more like venture capital, with large investments (costs, that is) in monitoring and controlling the investment. Despite my enthusiasm, in other words, for finding ways to engineer more capital into the sector, I don’t doubt for a minute that it is easily flooded …

How One Sentence Ruined My Summer Reading

by Duncan Hollis

I spent last week on a beach in Florida (because everyone from Philly vacations in Florida in August).  I had left all my work at home, and was settling into a crime novel, David Hewson’s The Sacred Cut, about a serial killer loose in my favorite city–Rome.  It was a light read, so I was willing to go along with the murder that opens the novel — a gruesome killing under the oculus in the Pantheon with only one witness (those who’ve been there can tell you how unlikely that is).  Still, my willing suspension of disbelief dissolved when the protagonists, three Roman detectives, go to meet with a government agent at the U.S. Embassy:

The embassy official introduced himself as Thornton Fielding . . . Fielding was diplomatic and articulate.  He wanted their signatures on some non-disclosure papers too.
Falcone stared at the paperwork.  “This is Italy, Mr. Fielding.  I’m not in the habit of signing forms about what I will or won’t do in my own country.”
Fielding didn’t even blink.  “Technically, Inspector, this is the sovereign territory of the United States of America.  Either you sign these forms or you don’t get to see Agent Leapman.”

Technically . . . sovereign territory of the United States!  Really? This is exactly the sort of mistake that will drive away your international lawyer readership.  Indeed, I’d thought we got rid of the embassy-as-sovereign-island idea a century ago.  But, Mr. Hewson is not alone in perpetuating such errors about international law.  So, I think it’s worth reiterating my earlier offer–interested, prospective authors (or screenwriters) should feel free to forward manuscripts to me here at Opinio Juris.  For a small fee, I would be happy to make sure you maintain all the necessary thrills and plot twists in your story without screwing up the international law stuff along the way.

Crimes of War Project on R2P UN Debate

by Kenneth Anderson

The ever useful and interesting Crimes of War Project website has posted a useful background web article on the debate in the General Assembly over the scope and status of ‘responsibility to protect’ (R2P).  I’ve blogged at OJ about this before, citing to an Economist article summarizing the debate and some other things.  The COW report, by Katherine Iliopoulos, can be read here.  It is brief, and offers a well written summary of the state of debate.  (I’ll go back and put up some links to earlier OJ discussions of R2P.

I do not entirely agree with the legal analysis of the article, which seems to me going to some lengths to try and reconcile some things that other parties did not think could be reconciled – notably, those opposed to the whole concept in the General Assembly or, for that matter, on of the chief witnesses invited to give testimony against the idea, Noam Chomsky.  At this stage, I would have thought that the conflict is so firmly on the table at the legal, political, and moral level that it is a bad idea to pretend that a formula of words can make it go away.  The conflict exists at the level of ideas and actions, not surface diplomatic language.

I also think it a mistake for those, like me, who support R2P, to suggest that the language of the 2005 GA final outcome document in the UN reform process was not as much – more, really – a step backwards from where R2P had been at the time of the Kosovo intervention than it was.  The acknowledgment of R2P in the GA 2005 document was a compromise language in which a clear part was to require the assent of the Security Council.  As the Economist article recognized, Garth Evans understood that plainly and adjudged it the best deal he could get in the circumstances. There is a time for clever diplomatic ambiguities, and a time when it becomes a distraction.  By the time you’ve brought Chomsky into the argument, the time for diplomatic ambiguities is over; the debate over the principle is on the table.

There is another group of voices in this debate that we international lawyers sometimes are not aware of – this debate has also been had in the development community.  William Easterly and Paul Collier (The Bottom Billion) had a thorough airing of disagreement over the idea in international development forums.  I’ll go back and post up some of that discussion, too.

No Seducing Pirate Messages in Victoria!

by Kevin Jon Heller

I know how much our readers like pirates, so I thought I would share the State of Victoria’s remarkably loony criminal statutes on the subject.  Here is s70B of the Crimes Act 1958:

A person commits a piratical act if… being on board any Australian ship he —

(i) turns pirate, enemy or rebel, and piratically runs away with the ship;

(ii) voluntarily yields up the ship or any boat, munitions or goods to any pirate;

(iii) brings any seducing message from any pirate, enemy, or rebel…

Any person who commits a piratical act shall be guilty of an offence and shall be liable on conviction upon indictment to… level 3 imprisonment (20 years maximum).

My favorite is (ii), which requires everyone who is on an Australian ship attacked by pirates to resist being hijacked or face 20 years imprisonment.  No wimps allowed!

And then there is s70C:

Any person who knowingly —

(a) trades with any pirate…

(c) fits out any vessel with a design to trade with, supply or correspond with any pirate; or

(d) conspires or corresponds with any pirate —

shall be guilty of an offence and shall be liable on conviction upon indictment to level 5 imprisonment (10 years maximum).

Didn’t resist being hijacked?  Tough luck — it’s a felony for anyone to pay your ransom.  It’s even a felony for anyone to discuss your release.  Better get comfortable.  You may be there awhile…

Hearts and Minds and Laws: Legal Compliance and Diplomatic Persuasion

by Chris Borgen

In case this is of interest to Opinio Juris readers, I want to point out that I have a new essay posted to SSRN entitled Hearts and Minds and Laws: Legal Compliance and Diplomatic Persuasion. Here’s the abstract:

This essay, written for the South Texas Law Review’s Ethics Symposium, considers the role of international legal argument in the war on terror and, in particular, in the attempts to justify the use of military force. It focuses on the relationship of credible legal arguments to legitimacy and reputation.

Part I looks at challenges posed by the evolution of military conflict and how this affects diplomacy. In particular, I argue that a reputation for honoring one’s treaty commitments and for legality, more generally, is an important part of fostering cooperation and undercutting the support of our adversaries. Moreover, in “fourth generation conflicts” such as this, a sense of “moral cohesion” is especially important. This is aided by a sense of the legality of one’s actions. Part II focuses on how the Bush Administration oscillated between a hostility to international law and attempts to rewrite the rules of international law concerning the use of force. While the United States was able to foster a new understanding of international law that legitimized the invasion of Afghanistan, the invasion of Iraq was another matter. Regarding Iraq, the Bush Administration made arguments that undercut the very foundations of the law of the use of force. It acted in a way that maximized short-term flexibility but damaged the reputation and efficacy of the United States (at least into the medium-term) and may have weakened some of the foundational principles of international law.

Finally, Part III considers some of the effects of these legal policies on U.S. foreign policy beyond Iraq by considering the interplay or power, responsibility, and reputation.

More broadly, this essay is part of my general interest in how great powers use international legal arguments to justify their foreign policies. I also explore this theme in my new article in the Chicago Journal of International Law on U.S. and Russian arguments related to South Ossetia and Kosovo, which l will post to SSRN in the near future.

Happy 60th Birthday to the Geneva Conventions

by Kenneth Anderson

I am blogger-lite this week, with apologies to all, but … I did not think we here at OJ would want to let the 60th anniversary of the Geneva Conventions of August 12, 1949 go unremarked.  Congratulations particularly to the ICRC and its stewardship and active promotion of the Conventions, going clear back to their earlier versions.  We can discuss another day where the Conventions, their Protocols, interpretations, practical force in the world, and all that are headed in the future; today, I’m happy to celebrate their anniversary.

The Obama Stimulus Program Violates WTO Rules

by Roger Alford

Last week I wrote a post suggesting that the federal “cash for clunkers” program did not violate the WTO subsidies program because it did not have the de facto or de jure effect of discriminating against foreign imports. But what about the broader Obama stimulus program? Does that pass WTO muster?

This article from Bloomberg published last week leaves almost no doubt that the “Buy America” component of the stimulus package is a per se violation of the WTO subsidies rules. According to Bloomberg,

President Barack Obama’s stimulus spending has run into a problem: A shortage of General Electric Co. water filters. GE makes them in Canada. Under the program’s ‘Buy American’ rules, that means the filters can’t be used for work paid for by the $787 billion fund. Contractors are searching the U.S. in vain for filters as well as bolts and manhole covers needed to build wastewater plants, sewers and water pipes financed by the economic stimulus. As officials wait for federal waivers to buy those goods outside the U.S., water projects from Maine to Kansas have been delayed.

Daniel Indiviglio from the Atlantic has argued that this is bad economics:

In a global market, a protectionist measure isn’t only bad from an economic standpoint: it’s also disastrous from a practical standpoint…. It’s one thing to require that stimulus projects be completed in the U.S. It’s another thing to require that parts in those projects have been manufactured in the U.S. That’s just not a realistic requirement in today’s world.

But it’s also bad law. The WTO subsidies laws flatly prohibits any subsidies that impose local content requirements. Article 3 of the Agreement on Subsidies and Countervailing Measures provides that the following subsidies are prohibited, “subsidies contingent, whether solely or as one of several other conditions, upon the use of domestic over imported goods.” These subsidies are called “red light” subsidies because you don’t need to show any adverse effects in any other country, they are per se prohibited.

As a legal matter, Canada (or almost any other WTO member state) could quite easily challenge the “Buy America” requirements in the Obama stimulus package and win. But it should act fast, because WTO remedies are prospective only, and at best an adverse WTO decision will prevent the United States from imposing local content obligations on future funding of projects. Such action would put a place holder on the Obama Administration discriminating against foreign products with future government subsidies.

About that ICC

by Deborah Pearlstein

Although this is pretty far from my usual focus, I’ve been interested to see the August D.C. doldrums filled in part with an interesting emerging discussion of what happens next with the U.S. and the International Criminal Court (ICC). Secretary of State Hillary Clinton expressed her “great regret” in Kenya last week that the United States hadn’t yet ratified the treaty. But as former State Department Legal Adviser John Bellinger argued in a Washington Post op-ed this week in response, it remains unclear how the Obama Administration will be able to overcome some of the remaining stumbling blocks in securing U.S. ratification (protection of U.S. troops from political prosecutions still chief among them, best I can tell). Given the number of State Department appointees still awaiting confirmation, and the small number of other things the Administration already has on its plate, I’m guessing this debate doesn’t get fully engaged at State until a few more months down the road. Nonetheless, for those who follow this stuff, Bellinger’s piece is worth a read. And if OJ readers have any insights to share about where the ICC sits on the U.S. queue of items on the international law punch list (other than – I’m thinking – behind the Comprehensive nuclear Test Ban Treaty), I’m all ears.

Melbourne Law School’s JD Program

by Kevin Jon Heller

I have been meaning to post about Melbourne Law School, my new academic home.  I imagine many of our readers will be familiar with our remarkable contingent of international law faculty: James Hathaway (our Dean), Gerry Simpson, Anne Orford, Diane Otto, Tim McCormack, and more than a dozen others.  What readers might not know is that Melbourne is in the process of becoming Australia’s first graduate-only law school.  We accepted our final cohort of LLB students in 2007; by 2012 we will have only JD, LLM, and PhD students, with the JD as our primary degree.  It’s a very significant move, one that we hope will further solidify Melbourne’s international reputation, attract more foreign students, and make our graduates even more competitive in the global legal market.  I have not yet taught our JDs, but all of my colleagues rave about how good they are.  That wouldn’t surprise me, given the quality of my LLBs — reflecting the fact that they basically need to be in the top 1% of Australian high-school students to get into the law school.

I also want to call attention to a brand-new joint degree program that Melbourne has established with NYU School of Law — the first of its kind in Australia.  The program offers two options.   The first is a four-year JD/JD program that will lead to degrees from both Melbourne and NYU.  Students will spend their first two years at one institution and the second two years at the other institution.  Melbourne students who participate in the program will be eligible for financial assistance from NYU and will have full access to its world-class careers office.  The second option is a JD/LLM program that will allow Melbourne students to earn a JD from Melbourne and an LLM from NYU in 3 1/2 years — one semester less than normal.

I can’t say enough good things about the law school — or about the city.  If anyone wants more information about what it’s like to study or teach at Melbourne, or in Australia generally, feel free to email me.

Predators Over Pakistan

by Kenneth Anderson

Baitullah Mehsud, the Taliban commander who orchestrated, among many other things, the assassination of Benazir Bhutto and many other atrocities, is dead.  The initial, somewhat confused reports expressed some doubts, but experts are gradually concluding that a US Predator missile strike killed him.

At the strategic level, this is one area in which the US is having success.  One can find skeptics, such as David Kilcullen, but compared to the ground war in Afghanistan, for example, the missile strikes are a success.  Even the Wall Street Journal editorial page has acknowledged this – for example, in an editorial this morning:

The strike also underscores that Pakistan has been an early Obama Administration foreign-policy success. Only three months ago, the Taliban were marching on Islamabad and U.S. officials were fretting about the lack of Pakistani will to resist Islamist extremism. But the U.S. worked behind the scenes to encourage a counterattack, Pakistan’s military has since retaken the Swat Valley in the north, and Mr. Zardari’s government has put aside some of its petty domestic squabbling to focus on the main enemy.

President Obama has also stepped up the pace of drone attacks, which are now thought to have killed more than a third of the top Taliban leaders. These columns reported a month ago on an intelligence report showing that the strikes are also carried out with little or no harm to civilians.

For cosmetic political reasons, the Obama Administration no longer wants to use the phrase “global war on terror.” Yet in Pakistan and Afghanistan it is fighting a more vigorous war on terrorists than did the previous Administration. Whatever you want to call it, the death of Baitullah Mehsud makes the world a safer place.

The legal basis for the CIA-run Predator campaign has not really been questioned, largely, in my view, on account of the immunizing ‘glow’ of the Obama administration.  That glow has many sources – an international community that is, for the time being at least, giving a general pass to the Obama administration on these issues, a Republican opposition that thinks, as the WSJ editorial indicates, that this is a splendidly good (and for that matter legal) undertaking.  The legal peculiarities, even ironies, mount…

“Recharacterizing” Facts in Lubanga

by Kevin Jon Heller

There has been a very interesting — and potentially very troubling — development in the Lubanga trial.  In response to a submission by representatives for the victims and over a strong dissent by Judge Fulford, the majority of Trial Chamber I has given notice to the parties and participants in the trial “that the legal characterisation of the facts may be subject to change in accordance with Regulation 55(2) of the Regulations of the Court.”  In particular, the Trial Chamber wants to hear argument concerning whether the facts presented in the case should be “recharacterized” to support five new charges against Lubanga, who is currently charged with six counts of the war crime of conscripting child soldiers.  If the Trial Chamber ultimately grants the victims’ request, Lubanga would also be charged with:

  • Sexual slavery as a crime against humanity.
  • Sexual slavery as a war crime in international armed conflict.
  • Sexual slavery as a war crime in non-international armed conflict.
  • Inhuman treatment as a war crime.
  • Cruel treatment as a war crime in non-international armed conflict.

The dispute centers on the correct interpretation of Regulation 55(2), which reads as follows:

If, at any time during the trial, it appears to the Chamber that the legal characterisation of facts may be subject to change, the Chamber shall give notice to the participants of such a possibility and having heard the evidence, shall, at an appropriate stage of the proceedings, give the participants the opportunity to make oral or written submissions. The Chamber may suspend the hearing to ensure that the participants have adequate time and facilities for effective preparation or, if necessary, it may order a hearing to consider all matters relevant to the proposed change.

The majority has concluded that “[t]he submissions of the legal representatives of the victims and the evidence heard so far during the course of the trial persuade the majority of the Chamber that such a possibility exists.”  Judge Fulford disagrees — and rightly so.  The problem with the victims’ argument is that they are not actually asking for facts to be legally recharacterized…

When is a State Acting “Pursuant” to a Treaty

by Roger Alford

Last month the Eleventh Circuit in Valencia-Trujillo v. United States rendered an unusual decision that required the court to decide whether a state was acting “pursuant” to a treaty. If it was, the defendant had standing to pursue the action. If it was not, then he had no such standing.

In extradition jurisprudence, the so-called “specialty rule” provides that “a person who has been brought within the jurisdiction of the court, by virtue of proceedings under an extradition treaty, can only be tried for one of the offenses described in that treaty, and for the offense with which he is charged in the proceedings for his extradition.” The rule is grounded in principles of international comity, recognizing that “[b]ecause the surrender of the defendant requires the cooperation of the surrendering state, preservation of the institution of extradition requires that the petitioning state live up to whatever promises it made in order to obtain extradition.”

A defendant only has standing to challenge an extradition for violating the specialty rule if the extradition occurred pursuant to a treaty. The Eleventh Circuit ruled that with respect to Valencia-Trujillo’s extradition from Colombia, his extradition did not occur pursuant to the United States-Colombia Extradition Treaty, but rather pursuant to an informal extradition agreement between the two countries. Here is the key excerpt:

John Barton, RIP

by Peggy McGuinness

I just learned the sad news of the passing of Professor John Barton of my alma mater, Stanford Law School. The Stanford Law press release can be found here.  John was a dedicated and learned scholar, a wonderful mentor and a delightful man to be around.  He will be greatly missed.

I was fortunate to get to know John during my first year of law school when he invited me to join a team of law and political science graduate students he had assembled to conduct a study on international conflict mediation for the Carnegie Commission on Preventing Deadly Conflict.  It was my first “professional” academic project, and I was excited to be part of something that connected what lawyers do to the problems of the real world.  As I got to know John better, I came to understand that the ideas that lawyers should first and foremost solve problems animated all his work.  And it was an impressive body of work, which drew from his training and experience as a research engineer and from his love of the law, and bridged science, technology, intellectual property, globalization, and justice.

As our mediation project evolved, John invited me to serve with him and Melanie Greenberg (then of the Stanford Center for International Security and Cooperation) as co-editor of the final book.  It was an act of generosity by a senior scholar and teacher to a rather green law student, and one which it is fair to say altered the trajectory of my career. In the course of finishing the book, I picked up several of John’s very useful research and writing habits – many of which I maintain to this day (e.g., if you have trouble with a paragraph, type in “MORE TO COME HERE” and move on).  I have one particularly vivid memory of the project:  Delivering the final research findings to the Carnegie advisory group at a meeting in New York.  It was an impressive — and for me, intimidating! — group, co-chaired by Cy Vance and David Hamburg, and including, among others, Abe and Toni Chayes, Hans Corell, Theodor Meron, Oscar Schachter, and Paul Szasz.  That group asked tough questions, bringing together the weight of their collective experience and academic expertise, forcing us to rethink our early conclusions and reframe parts of our approach to the dynamics between law and mediation.  John taught me a great deal during the following months about responding to critiques (always graciously, even when you disagreed with them) and molding our empirical data and case studies into a coherent and useful framework for understanding how and when law does (or does not) facilitate conflict resolution.  He also taught me how to cabin and present findings.  He hoped — as we all did — that our book would be helpful; that it would provide some lessons learned about past mediations and some theoretical structure for future mediation efforts. It was a modest goal but at the same time was motivated by the best idealist traditions of lawyers:  That we can make a difference and improve the world.

I am grateful to have known and worked with John and sad that we lost him so soon.

Even Eugene Volokh Can’t Stop the Children’s Convention

by Peter Spiro

Eugene Volokh has this post on the merits of the UN Convention on the Rights of the Child.  He’s against it.  Volokh highlights several operative provisions that he finds objectionable on policy grounds, and argues that we shouldn’t sign on to treaties that we don’t intend to comply with.

What’s striking about the post is the exceptionalist premise that US isolation with respect to the treaty is basically irrelevant, and that the US can opt out on an indefinite basis.  Famously, the US is alone with non-functioning Somalia in failing to ratify the Convention.  Is that a sustainable position?

I don’t think so, at least not over the long run.  First, joining the Convention makes sense in a conventional national interests analysis.  America’s failure to join will cost it more than signing on.  There is already a drumbeat on the subject: US nonparticipation is a boilerplate punchline among international actors critiquing US human rights practice.  That doesn’t present a direct harm to US national security (in, say, the way that Guantanamo has), but it nibbles away at the national interest.  Given the small cost of participation (especially as conditioned by some reasonable package of reservations and understandings), ratifying the treaty looks the preferred, rational choice.

But even if we don’t sign on, the convention’s substantive terms will insinuate themselves into US practice.  Eugene assumes that the US can say no to the CRC, that America can insulate itself from universal international practice (to anticipate Ken’s objection here, universal at some core discursive level even if many other countries have attached significant reservations to their ratification).  I don’t think so.  There are too many entry points for international law, including through state governments, nonstate actors, and the courts.

Take the CRC provision barring life sentences for juvenile offenders, among those which Eugene finds objectionable.  I’d be willing to make a small bet that within the next 20-25 years that practice is halted in the US, whether or not we formally join the CRC.  It might be the courts that put a stop to it, a la Roper.  It might be state governments that come around on their own, in the face of ramped-up international static.  Nonstate actors (including academics) will be a part of the picture.  In any event, the international norm will be a driver.  That is, the fact that international law has moved to ban the practice will be consequential, policy aspects of the question aside.  That’s something that international law skeptics have trouble understanding: the material power of international law.

UPDATE: Prof. Volokh responds here.  I should emphasize that the above observations are descriptive.  I assume nonjudicial and extrainstitutional channels for the imposition of IL through which the US can be made to pay for nonconformity.   Eugene understands that

rejectionism may sometimes be too costly. If we have something serious and likely to gain from accepting a particular treaty, we should be open to that benefit. But we should recognize that there’s always a cost, even of a treaty whose terms are by themselves unobjectionable: the risk that endorsing such treaties (and especially “human rights” treaties) will promote a legal culture supporting the erosion of American legal principles that go against “international practice.”

I see the point, but this doesn’t take disaggregation and the material costs of nonconformity into account as facilitating the insinuation of IL.  If, for instance, a state of the US perceives a risk of losing foreign investment as a result of a human rights-violating practice, at some point it will cave, whether or not the retreat results in the further erosion of “American legal principles” (which of course are themselves becoming less distinctive in the face of increasingly globalized legal culture).  There will be multiple decisionmakers through whom IL is insinuated, contrary to Volokhs apparent assumptions that there is a single channel through which acceptance or rejection of IL will occur and that ideology will weigh heavily in the balance.

At the same time, US actors are hugely influential in the making of international law.  If some don’t think that states should have an obligation to ban hate speech, for example, they can fight it the entrenchment of the norm (or try to win acceptance of some sort of margin of appreciation tolerating a diversity of practice).  They might win.  But they might not, the same way that they lost with respect to the execution of juvenile offenders.  At some level, I’m arguing that categorical resistance is futile and that broad rejectionism is no longer an option.

Ambinder Interviews Glenn Sulmasy on the National Security Courts

by Peggy McGuinness

Marc Ambinder over at the Atlantic has posted his interview with Professor Glenn Sulmasy, whose new book The National Security Court System: A Natural Evolution of Justice in an Age of Terror has just been published by OUP.

Ambinder summarizes the central arguments and proposals of Sulmasy’s book:

Sulmasy expands on what he calls a “hybrid” approach to the quandary of prosecuting terrorists.  He would create a national security court, run by civilians, that exists outside the federal court system envisioned in Article III of the Constitution. The standards of evidence would be changed to reflect the realities of counterterrorism, but every detainee would be presumed triable. They’d have to be tried within a year of being captured. Three-judge panels would use a “reasonable doubt” standard for convictions, and two of them must agree before a detainee could be found guilty. Those detainees found not guilty would be detained until a suitable place for them to go can be found. Detainees would be housed on U.S. soil in prisons built on military bases. The death penalty would only be applicable if the detainee’s home country has legalized the practice. The President would retain some thin authority to detain those found not guilty under extreme circumstances, but there would be strict safeguards on the exercise of this power, and its exercise would be public. In recent weeks, Sulmasy has added a new provision: he believes that the legislation establishing the courts should sunset after five years, which would add a measure of review to the process and give Congress and the President the ability to see what has worked and what hasn’t.

There is much to be unpacked, discussed and critiqued here, but it is worth checking out the q and a with Sulmasy, someone who has spent a lot time thinking deeply about these issues.

The WTO Subsidies Rules and “Cash for Clunkers”

by Roger Alford

The government’s new “cash for clunkers” program has been wildly successful. Under the program, consumers may receive up to $4,500 towards the purchase of a new, more fuel-efficient vehicle. What is surprising is the impact this it is having on consumer spending patterns regarding domestic vs. imported vehicles. According to press reports, more than 70% of the clunkers that were traded-in were domestic. Moreover, as reported here, consumers are showing a preference for imported cars when they purchase under the program, with Toyota (17%) and Honda (14%) leading the way. The top ten sellers under the program are Ford Focus, Honda Civic, Toyota Corolla, Toyota Prius, Ford Escape, Toyota Camry, Dodge Caliber, Hyundai Elantra, Honda Fit, and Chevy Cobalt. In other words, six of the top ten sellers are foreign cars (although the Camry is built at home and abroad).

Cash for Clunkers is one of the few government subsidy programs that I am aware of that clearly has the de facto effect of promoting imported over domestic goods. The program doesn’t advertise that “we will pay you $4,500 if you trade in your domestic gas-guzzler and buy a fuel-efficient foreign one.” But in practice that appears to be the result.

Is there any problem with that under the WTO rules? Nope. You can favor imports, but not disfavor them. Under the WTO rules a subsidy is “actionable” if it “[1] One country’s subsidies can hurt a domestic industry in an importing country; [2] They can hurt rival exporters from another country when the two compete in third markets; [3] And domestic subsidies in one country can hurt exporters trying to compete in the subsidizing country’s domestic market.” Only the third appears relevant here, and foreign car manufacturers are faring fine in the U.S. market. (Although further information would be needed to determine the impact on foreign gas guzzlers).

Now if the effect were exactly the opposite–if consumers rushed to buy domestic cars instead of imported ones–then it might be problematic. But because consumer behavior appears to be favoring imports under the Cash for Clunkers program, there is no basis for WTO action.

The IDF Is Deleuzian?

by Kevin Jon Heller

Deleuze once commented in a discussion with Foucault that “[a] theory is exactly like a box of tools. It has nothing to do with the signifier. It must be useful. It must function. And not for itself. If no one uses it, beginning with the theoretician himself (who then ceases to be a theoretician), then the theory is worthless or the moment is inappropriate.” I wonder what Deleuze would have thought if he had known that his theories have had a profound impact — as recounted in a 2006 essay by Eyal Weizman — on the Israeli Defence Forces’ urban war-fighting:

The attack conducted by units of the Israeli Defence Forces (IDF) on the city of Nablus in April 2002 was described by its commander, Brigadier-General Aviv Kokhavi, as ‘inverse geometry’, which he explained as ‘the reorganization of the urban syntax by means of a series of micro-tactical actions’.

During the battle soldiers moved within the city across hundreds of metres of ‘overground tunnels’ carved out through a dense and contiguous urban structure. Although several thousand soldiers and Palestinian guerrillas were manoeuvring simultaneously in the city, they were so ‘saturated’ into the urban fabric that very few would have been visible from the air. Furthermore, they used none of the city’s streets, roads, alleys or courtyards, or any of the external doors, internal stairwells and windows, but moved horizontally through walls and vertically through holes blasted in ceilings and floors. This form of movement, described by the military as ‘infestation’, seeks to redefine inside as outside, and domestic interiors as thoroughfares. The IDF’s strategy of ‘walking through walls’ involves a conception of the city as not just the site but also the very medium of warfare – a flexible, almost liquid medium that is forever contingent and in flux.


[Shimon] Naveh, a retired Brigadier-General, directs the Operational Theory Research Institute, which trains staff officers from the IDF and other militaries in ‘operational theory’ – defined in military jargon as somewhere between strategy and tactics….  I asked Naveh why Deleuze and Guattari were so popular with the Israeli military. He replied that ‘several of the concepts in A Thousand Plateaux became instrumental for us […] allowing us to explain contemporary situations in a way that we could not have otherwise. It problematized our own paradigms. Most important was the distinction they have pointed out between the concepts of “smooth” and “striated” space [which accordingly reflect] the organizational concepts of the “war machine” and the “state apparatus”. In the IDF we now often use the term “to smooth out space” when we want to refer to operation in a space as if it had no borders. […] Palestinian areas could indeed be thought of as “striated” in the sense that they are enclosed by fences, walls, ditches, roads blocks and so on.’ When I asked him if moving through walls was part of it, he explained that, ‘In Nablus the IDF understood urban fighting as a spatial problem. […] Travelling through walls is a simple mechanical solution that connects theory and practice.’

I don’t quite know what to say about the essay, which is absolutely fascinating and I highly recommend.  Something tells me, though, that Deleuze would have been secretly pleased to know that his theories have found such a productive reception in a very unlikely place.

So Long and Thanks

by Gregory Gordon

I want to thank the folks at OJ for having me over the past two weeks. You have all made me feel at home and I’ve enjoyed it very much. I’ve especially appreciated the opportunity to discuss legal issues stemming from upheaval in the African Great Lakes region. Some of these issues have been on my mind for some time and it was fantastic to have a forum through which to express and develop them. It was even more meaningful given that, during my guest-blogging stint, there were significant related developments on the universal jurisdiction front, Rwanda notified the world that gacaca would soon come to an end, and Hillary Clinton announced a visit to DR Congo as the country became engulfed in yet another wave of cataclysmic violence. It was fascinating to see convergences between my thinking and related current events and to see how those current events were shaping my thinking as I struggled to put it all into words in real time. In that sense, the fortnight was quite energizing. And that feeling was only enhanced by opportunities to discuss other vital issues in the news such as asylum law and gender-crimes and the Sotomayor confirmation hearings. The reader comments related to my posts have been thoughtful and stimulating and I have learnt much from them. To sum it up, these two-weeks of international legal e-dialogue and cyber-camaraderie have been a true privilege. I hope I’ll have the chance to do it again. Good night and good luck.

The Strange Case of Laurent Nkunda

by Gregory Gordon

Until his arrest by the Rwandan military earlier this year, General Laurent Nkunda, a Congolese Tutsi and former chairman of the Congolese Congrès National pour la Défense du Peuple (CNDP), had been considered one of the key destabilizing figures in eastern Congo. Back in 2004, Nkunda and his rebel troops took control of the South Kivu town of Bukavu, claiming this action was necessary to stop the genocide of the area’s Banyamulenge (Congolese Tutsis) at the hands of the FDLR (see my previous post to learn about them). During the fighting, Nkunda’s troops, thought to be taking orders from Rwanda, reportedly carried out war crimes, killing and raping civilians and looting their property.

DR Congo indicted Nkunda the following year but he and his troops continued to prey on the civilian population of the Kivus. Early in 2007, as part of the demilitarization and reintegration process, combatants loyal to Nkunda were incorporated into the national army in a procedure called “mixage.” Unfortunately, the newly established “mixed” brigades killed scores of civilians and committed rapes and other abuses in their operations against the FDLR.

By the summer of 2007, the political agreements between the government and Nkunda had collapsed and many of Nkunda’s former troops returned to his control. Renewed clashes between CNDP troops and government soldiers followed. In the latter part of 2008, after a brief respite, Nkunda launched a new offensive against government forces that resulted in the eventual encirclement of Goma. The fighting forced more than a quarter of a million people from their homes.

In early January 2009, Nkunda was ousted from the CNDP by his Chief-of-Staff, General Bosco Ntaganda (who is himself under ICC indictment — see here –for Ituri-related war crimes). Nkunda was captured by Rwandan forces a couple of weeks later. And he’s been in Rwandan custody ever since. Soon after his incarceration, it appeared that Rwanda was engaging in serious discussions with DR Congo about extraditing him to face Congolese justice. But those talks seem to have petered out.

Critics claim that Rwanda is unwilling to hand Nkunda over to their former rivals and risk damaging revelations about its past close relationship with the accused war criminal. That perception seems to be corroborated by recent comments by Rwandan president Paul Kagame:

Responding to a question on the status of General Laurent Nkunda, President Kagame told members of the press that the former CNDP leader as an individual was not the main problem and that the current challenges being faced needed to be understood in a wider context of the root causes of conflict and instability in the region. He added that Rwanda and DRC are working closely together to appropriately resolve the issue of General Nkunda, and it should not derail the larger ongoing process of establishing peace, long-term stability and cooperation in development in the Great Lakes region.

Perhaps emboldened by such statements, Nkunda recently asked Kagame to free him (see here). And he claims that his erstwhile ally has neither informed him of the reasons for his arrest and detention nor allowed him to appear before a judge.

On top of all this, it would appear that, as mandated by Congolese law, the Nkunda indictment has not been “renewed” by a judge and has thus expired (and apparently, no arrest warrant was ever issued). Not only has Rwanda’s arrest and detention violated its own domestic law and international human rights obligations, it may not, in the end, even have authority to extradite.

So what now? If there is credible evidence that Nkunda is guilty of war crimes (and there appears to be a lot of it), DR Congo ought to renew or refile its indictment and issue an arrest warrant. If it fails to do so (or if it claims it cannot because its dysfunctional justice system lacks capacity), the ICC should step in and indict (pursuant either to Congolese self-referral, which has been the trend, or to a proprio motu investigation). Even in the absence of an indictment or arrest warrant, Rwanda may have a Geneva Convention duty to act under the principle of aut dedere aut judicare (Latin for extradite or prosecute), which obliges the custodial state to investigate and prosecute or extradite persons suspected of having committed grave breaches of the Geneva Conventions and Additional Protocol I, regardless of the nationality of the alleged perpetrator or place where the crime was committed.

On the other hand, Nkunda’s alleged crimes were seemingly committed as part of an internal armed conflict so it’s not clear if the grave breaches provisions would apply (then again, the conflict might be considered internationalized given the alleged involvement of Rwanda – the custodial state!). By the same token, it could be argued that aut dedere aut judicare is implicated when Common Article 3 is violated (regardless of whether it is considered part of the grave breaches regime – I think a violation of Common Article 3 is automatically tantamount to a grave breach – in contrast to the Bush administration’s specious attempt to import the notion of a “grave breach” of Common Article 3 into the Military Commissions Act of 2006). Still, it should be pointed out that the obligation to investigate or extradite persons suspected of grave breaches is one that has rarely been put into practice. Don’t count on Rwanda to buck the trend.

So Nkunda’s current Kafkaesque predicament will likely continue into the indefinite future. Yet another case of justice delayed (if not ultimately denied) in the nightmare that is DR Congo . . .

Brad Roth Demurs: ‘This is a fundamental mistake’, he says …

by Kenneth Anderson

Brad Roth, an old friend, and well known to many OJ readers as law and political science professor at Wayne State University, delivers a heck of a punch with his new paper, set to appear in Santa Clara Journal of International Law (2009), but up in draft at SSRN, “Coming to Terms with Ruthlessness: Sovereign Equality, Global Pluralism, and the Limits of International Justice.”

This article pulls no punches and must have caused a bit of a stir when it was presented at the Santa Clara conference and, as I think I remember hearing, at the ASIL meeting this past spring.  I tried to say something similar in an essay this year in the European Journal of International Law,, but I can’t say I said it with as much clarity and vigor as this extract from the article (emphasis added and footnotes deleted; some of the most interesting sentences are after the jump):

(I should also add, because we here at OJ are a polite bunch, Brad has told me he welcomes disagreement with this piece and comments should anyone want to make them, and I expect that many OJ readers do disagree.  But this might raise the old academic problem – how do you disagree with something in a couple of paragraphs where the disagreement seems to run much deeper than that?  I don’t know that it goes to fundamental world views – Brad is raising a set of concerns that I would express not so much as the division between idealists and realists, for example, but between one version of idealism and another that places greater weight on certain values and evaluations of circumstances than other versions would.  But as to how to answer the ‘ships passing in the night’ problem of commenting where the differences run very deep – I don’t know how to answer that question and never have been able to do it well.  But I do think that KJH, Gregory Gordon, and others around here would disagree with Brad, and for that matter, on quite different grounds, I think Eric Posner would disagree; I have some disagreements, too (as someone who does sign onto R2P at least sometimes), but they are much more disagreements of degree than kind.  But please feel free to … disagree away!)

International law represents – not exclusively, to be sure, but vitally – an accommodation among entities prone to conflict rooted, not only in competing interests, but also in systematic and profound disagreement about justice. Political conflict’s much-lamented intractability is largely owing to its moral component; contestants are least willing to back down from positions taken as a matter of principle. Although human beings rarely disagree about the most fundamental moral principles in the abstract (e.g., “murder is wrong”), they all too frequently disagree about the application of those moral principles to unmediated struggles over the terms of public order (e.g., “one person’s terrorist is another’s freedom fighter”). While the specific configurations of contemporary international conflict can be ascribed to historical contingencies of the “Westphalian” state system, the animating tendency toward moral disagreement is endemic to the human condition.

In the absence of commonalities of substantive moral principle, participants in the international community need to find common ground on a different plane. The imperative to honor agreements – and other forms of accommodation on which others are led to rely – is not reducible to a pragmatic concern of the “repeat player” to maintain a reputation that will enable her to obtain cooperation on subsequent “plays,” but is a duty, owed to the community, to maintain an expectation of compliance with established institutions. Moreover, “honor” itself is not without moral significance, as it reflects integrity and respect for the other. One honors agreements made with the unjust, mostly because it is irresponsible to do otherwise when morally important interests depend on maintaining one’s own and others’ ability to trade on the convention of agreement in similar future contexts, but also because treachery, even when employed against actors who are themselves immoral, incurs a moral taint. The point is not that considerations of extraordinary injustice, even unilaterally conceived, may never override the duty to honor one’s formal commitments. It is that positive obligations may be morally binding even where they demand forbearance from the single-minded pursuit of one’s unilateral moral ends. Whatever the exceptions, they do not swallow the rule.

Thus, however paradoxical it may seem, restraint on the pursuit of justice is not only central to the mission of existing international law, but also central to any sound theory of international political morality that pertains to the development of international legal institutions. Unilateral impositions, deriving from a particular, empowered conception of universal morality, are more likely to be the problem than the solution.

An “African Marshall Plan” for DR Congo

by Gregory Gordon

It’s the colossal human catastrophe that just won’t go away. And closing our eyes and wishing it were so is not going to work. There are new reports of fresh fighting, and widespread internal displacement and sexual violence in the Democratic Republic of Congo. According to UNHCR, some 56,000 people have been forced to flee renewed armed conflict between government forces and Rwandan Hutu rebels in the eastern portion of the country in the past couple of weeks. This brings the total number of civilians displaced in South Kivu since January to 536,000 and in the whole of eastern DR Congo, the number of displaced has reached over 1.8 million. Experts estimate that approximately 45,000 people die in the country every month. The hellish fate of one such individual is vividly chronicled in today’s Washington Post.

This recent round of maelstrom is the result of a renewed Congolese campaign to root out remaining pockets of extremist Hutu resistance (consisting of a group of rebels known collectively as the Democratic Forces for the Liberation of Rwanda or FDLR) and their local militia allies. The FDLR consists of Rwandan genocide perpetrators who crossed the border as the RPF swept to victory. They initially hoped to refortify, invade Rwanda and topple the current government but their ranks and resources have thinned over the course of Congo’s perpetual fighting (which has included raids by Rwandan and Congolese forces). Now the FDLR, hiding in the bush and linked with various armed groups, including Mai Mai militia, mostly exploit and abuse the local civilian population. In addition to subjecting IDPs to arbitrary arrests, kidnappings, extortion and forced taxation, there are recent accounts of widespread atrocities at the hands of the FDLR, including murder, rape and torture.

In the meantime, the so-called “positive forces” in the conflict have been preying on civilians as well. It was recently reported that four Congolese army officers (including a general) accused of rape (including the rape of children) are still in active military service. Another recent report reveals that members of the UN peacekeeping mission in DR Congo (known as MONUC) may also be engaged in the sexual abuse of Congolese women (over the years there have been other reported instances of sexual abuse by MONUC troops).

At the same time, in a report issued a little over a week ago, the human rights group Global Witness accused a number of multinational corporations of “turning a blind eye” to the source of Congolese minerals they purchase and then sell to manufacturers around the world. The report indicates that these corporations, such as Afrimex, Traxys, and Amalgamated Metal Corporation, are knowingly purchasing minerals (including gold and wolframite) mined through the exploitation of civilians controlled by both the Congolese military and rebel groups. According to the report:

The stakes are high, and those benefiting from the illicit exploitation of resources will not be willing to give up these riches easily. As evidence by patterns of the last 12 years, it is in the interests of all sides in the conflict, as well as unscrupulous businessmen, to prolong the anarchy, as it delivers financial benefits without accountability.

In an article recently published in the Fordham International Law Journal, I have called for the United States to launch an “African Marshall Plan” for DR Congo — a massive resource and assistance infusion to bring about wide-ranging, organic change and secure the benefits of DR Congo’s free elections and the recent Nairobi/Goma peace process. To date, U.S.-DR Congo policy has been formulated in dribs and drabs, limited in quantity relative to the enormity of the crisis, and without an overarching plan for promoting legal coherence and yielding long-term, systemic change. To be effective, I submit, U.S.-Congolese policy must be crafted and executed with a holistic approach– security, disarmament, infrastructure, food assistance, and health care must all undergird greater efforts to establish the rule of law (including efforts to curb corporate predations). And from a procedural perspective, U.S. policy should be better coordinated internally (rather than the current farrago of individual agency initiatives).  It was announced within the past couple of days that Hillary Clinton will be visiting DR Congo on her upcoming trip to Africa.  One would hope she will be thinking about these larger policy issues during her visit.

Of course, to be successful, any such effort would have to include the participation of, and coordination with, other major donors such as the EU (although, as I point out in my article, due to various bureaucratic and financial restraints, the EU seems limited in the extent of effective assistance it can provide). And I’m not suggesting that this would look anything like an exact replica of the original Marshall Plan. But I do think those two words conjure up the idea of large-scale, effective, coordinated assistance. That’s what’s needed.

Not only is it the right thing to do and the best policy from a humanitarian perspective, it is in the U.S. and global interest that a country the size of Western Europe, lying at the heart of the African continent, attain stability. As the New York Times has noted, “When Congo shakes, Africa trembles.”

Taking — and Winning! — the Bernstein Challenge

by Kevin Jon Heller

As part of his latest attack on Human Rights Watch, David Bernstein insists — again — that HRW “absolutely refuses to apologize or retract” when it is “wrong about Israel.”  He also claims that, “[t]hough challenged,” I have “yet to come up with another, legitimate example of HRW officially responded to legitimate criticisms from pro-Israel sources the way it responded to (somewhat dubious) criticism from extremist anti-Israel critics.”  Bernstein obviously can’t be bothered to examine HRW’s website himself, because it took me all of five minutes to find the following:

This report corrects two major and several minor inaccuracies from Human Rights Watch’s earlier report issued during the 2006 war (Fatal Strikes):

Further Human Rights Watch investigations into a deadly strike at Srifa established that an Israeli attack there killed 17 combatants and five civilians on July 19, not the 26 civilians claimed in Fatal Strikes.

In a second case, involving an Israeli air strike on the village of `Aitaroun that killed nine members of the `Awada family, further Human Rights Watch research established that Hezbollah had fired rockets from near the home a few hours before the deadly air strike, although there is no doubt that all of those killed in the air strike were civilians unconnected to Hezbollah.

Human Rights Watch regrets these two major inaccuracies in its Fatal Strikes report.  We have corrected several smaller errors relating to dates of strikes, ages and names of victims, and the previously unreported presence of an empty Hezbollah civilian office in a building targeted by an Israeli air strike in Bint Jbeil that killed two civilians. Wherever we have corrected errors from previous reports, the text or footnotes of this report clearly identify the information corrected.

To avoid any such mistakes in this report, we reexamined all of the cases included in Fatal Strikes and conducted additional interviews, site inspections, and visits to graveyards to establish whether victims were civilians or combatants. In addition, we investigated a further 71 cases in similar detail.

Note that these corrections are on HRW’s website, thus satisfying Bernstein’s (arbitrary) requirement. And look, there is even an apology!

I await Bernstein’s explanation of how HRW’s corrections and apology are not actually corrections and not actually an apology.  Even Gerald Steinberg, the head of NGO Monitor — which exists, by its own admission, solely “to end the practice used by certain self-declared ‘humanitarian NGOs’ of exploiting the label ‘universal human rights values’ to promote politically and ideologically motivated anti-Israel agendas” — grudgingly acknowledged the correction.

“The Waterboarding of America”

by Roger Alford

Um, somehow I don’t think the analogy works:

The nation – its economy and political body – has been strapped down, blindfolded and hosed. A new administration, empowered by control of both houses of Congress and the most liberal president in history, is immersing us all in a torrent of debt. While we gasp for breath and try to cry “Time out!” we continue to be flooded with staggering commitments neither we nor our children have approved or will be able to fulfill….

And now, while we’re strapped down by the Democrat-controlled Congress, gasping and gulping beneath a flood of strong-arm tactics, the “health reform” bill taking shape outlines a “minimum-benefits package” that will be universal – that is, required of every American’s insurance plan, whether provided by a private firm or by the government.

But we’re not helpless yet, folks. We’re drenched and near-drowned and gasping for breath, but there’s a growing coalition of staunch Republican and “blue dog” Democrats in both houses of Congress digging in their heels and saying, “Wait! This is all too much, too fast! We need time to read and digest and consider this torrent of legislation. Mr. President, hold off!”

And that gives us debt-soaked citizens a chance to rise up and gasp and spit and shout: “MR. PRESIDENT, AND YOU, TOO, CONGRESS! YOU WORK FOR US! NOT THE OTHER WAY AROUND! WE VOTED YOU IN! AND WE CAN TAKE YOU OUT! STOP THIS WATERBOARDING!!”