Archive for
September, 2009

Benjamin Wittes on Detention Policy

by Kenneth Anderson

Ben Wittes, who has guest-blogged with OJ in the past, has a blistering op-ed in yesterday’s Washington Post, criticizing, well, just about everyone for the failure to take the policy issues of detention to Congress to craft a formal structure for addressing them.  The piece has made the rounds in the blogosphere, so I won’t comment except to say that I agree.  A snippet:

President Obama’s decision not to go to Congress for help in establishing reasonable standards for the continued detention of Guantanamo detainees is a failure of leadership in the project of putting American law on a sound basis for a long-term confrontation with terrorism. It is bad for the country, for national security and for civil liberties. It represents a virtually wholesale adoption of the failed policies of his predecessor — who, with equal obtuseness, refused to root American detention practices in clear law approved by the legislature and similarly failed to learn from repeated Supreme Court rebukes to this unilateral approach. It violates Obama’s much-noted statement this spring that he would “work with Congress to develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution.” And it delegates a profound and difficult policymaking exercise to the judiciary and, ultimately, to a single man on the Supreme Court.

The only point in Obama’s defense is that few political actors have given him reason to think he would have responsible partners if he did the right thing. Human rights and civil liberties activists are so keen to avoid legitimizing detention in legislation that they have treated as a victory the president’s decision to adopt the very policy they have spent the past eight years denouncing.

Congress is not looking statesmanlike either. Republicans have been too busy making political hay out of Obama’s sputtering closure of Guantanamo to act as constructive participants in this important legislative project. Democrats, always afraid of their shadows on national security issues, have hidden behind civil liberties platitudes that most do not really believe. Members across the spectrum have acted boldly only when it comes to making sure that no Guantanamo detainees end up in their districts.

But it is Obama who is president, and presidents go to war with the Congress and civil society they have, not the Congress and civil society they wish they had.

Does Iran Have a Right to Develop Nuclear Technology?

by Julian Ku

I have to admit I really don’t know for sure, but this WSJ op-ed makes me think this issue is likely to be an important one as the crisis over Iran’s compliance with the Non-Proliferation Treaty comes to a head.  According to the author, the U.S./E.U. concession that Iran has a right to peaceful nuclear technology is both wrong as a matter of law (and wrong-headed as a matter of policy.)  I can see the policy argument, but I have no idea what the author’s legal argument is.  Basically, it appears to be that because Iran’s constitution commits it to develop comprehensive military weapon systems, the author argues that the NPT’s guarantee of a right to develop peaceful nuclear technology shouldn’t apply?

An Islamist state like Iran can by definition not be considered a bona fide signatory to the NPT. The mullahs, although opposed to the treaty’s overall purpose, never withdrew from the NPT to take advantage of the privileges the document grants its signatories.

Huh?  I don’t buy this one. Either they are in the treaty or they are not, and if they are in, they have to comply with the treaty’s inspection provisions while at the same time getting the treaty’s benefits.  Iran’s leaders may be corrupt, genocidal, lunatics of whom we should be very afraid, but I think they can still sign treaties. Can’t they?

Kosovo, South Ossetia, and the Rhetoric of Self-Determination

by Chris Borgen

I just wanted to note that I have posted to SSRN The Language of Law and the Practice of Politics: Great Powers and the Rhetoric of Self-Determination in the Cases of Kosovo and South Ossetia, which is part of the special issue of the Chicago Journal of International Law about great power politics to which Ken has referred a couple of times. Here’s the abstract:

This Article, written for a special issue of the Chicago Journal of International Law concerning great power politics, seeks to elucidate whether and how international law shapes modern diplomatic discourse and, in particular, how “great powers” use international legal arguments as part of their diplomatic strategies. I use one topic area — arguments over self-determination — and two cases — Kosovo and South Ossetia — to explore this relationship between the language of law and the practice of politics. I argue that international law serves as both a vocabulary and a grammar for diplomacy. International law is a vocabulary in that it defines the words that can or cannot be used in diplomatic discourse, the terminology that is or is not acceptable. Similarly, international law provides a grammar for international relations by setting the rules by which words fit together — essentially, how ideas can be expressed. For example, “we will use our right to attack you” does not easily fit into the grammar of international law or international politics (barring some questionable readings by the Bush Administration). By cabining what can be said in international relations, international law defines norms, shapes expectations, sets the boundaries of what can be legitimized and, ultimately, can make it more or less likely that certain state actions will be successful.

Section II of this Article briefly sets out the background of the Kosovar and South Ossetian conflicts. Section III is a quick primer on the evolution of the concept of self-determination and its at-times difficult coexistence with the concepts of sovereignty and territorial integrity. Section IV turns to the analysis of how legal argumentation was used by Russia, the US, and the EU in the cases of Kosovo and South Ossetia. Although I note the relative strengths and weaknesses of the arguments, I am less interested in who was right or wrong as opposed to what strategy was used (if any) in deploying the language of international law. I am especially interested in how Russia, in particular, has used the language of international law as a tool of public diplomacy in an attempt to spin the perceptions or “control the narratives” related to both Kosovo and South Ossetia. Finally, Section V considers how the rhetorical use of international legal argumentation goes beyond managing perceptions and can actually affect the evolution of the substance of international law.

On related news, this week the EU will release its much-anticipated report on responsibility for the Russia/Georgia conflict over South Ossetia. Also, the public hearings for the ICJ’s Advisory Proceedings on Kosovo have been scheduled to begin on 1 December.  Stay tuned…

Who’s Responsible for the Crisis in Darfur? The Jews, of Course!

by Kevin Jon Heller

Another classic by the Sudanese government:

Ismail also accused Israel of being behind aggravation and continuation of the Darfur crisis, saying “a group of Darfurians have recently admitted that they have provided the International Criminal Court (ICC) with false evidences, which support our assurances that there are Zionist trends behind aggravation of the Darfur crisis and undermining of the stability in the region.”

Yep, just another run-of-the-mill Israel/ICC plot to prevent the Sudanese government from bringing peace and prosperity to Darfur.  I don’t know why I didn’t think of that.

ADDENDUM: On a more serious note, it’s distressing to think that this is the government that Obama’s Darfur envoy, Scott Gration, has so effusively praised recently.  Make sure to read the Washington Post‘s shocking article today about Gration’s coddling of Bashir.  Here is a snippet:

Still, at the end of the visit, Gration maintained a strikingly different perspective. He had seen signs of goodwill from the government of President Omar Hassan al-Bashir, he said, and viewed many of the complaints as understandable yet knee-jerk reactions to a government he trusts is ready to change.

“We’ve got to think about giving out cookies,” said Gration, who was appointed in March. “Kids, countries — they react to gold stars, smiley faces, handshakes, agreements, talk, engagement.”


Gration said that in his view, the ruling party deserves credit lately for allowing some foreign aid groups to return after Bashir expelled others following his March indictment by the International Criminal Court on charges of war crimes in Darfur. Gration said economic sanctions, first imposed in 1997, have thwarted development that would help marginalized parts of Sudan.

Talk about setting the bar low!  In order to earn praise from Gration and the Obama administration, all a dictator has to do is create a humanitarian crisis and then take minor — and wholly inadequate — steps to alleviate it.

The best, however, has to be Gration’s line about the IDPs: “And many displaced Darfurians are dealing with ‘psychological stuff’ that is leading to unhelpful mistrust of the government, he said.”  How dare the Darfurians let their brutal treatment by the government get in the way of trusting the government!

What an embarrassment.

No Correction by the Jerusalem Post

by Kevin Jon Heller

When I wrote my critique of the Jerusalem Post editorial on the ICC, I also sent a short letter to the editor pointing out the editorial’s basic factual errors.  It was a very straightforward letter — no politics, just indisputably true facts such as that the ICTY and the ICC are different institutions.

It’s been more than a week, and the Jerusalem Post has yet to print the letter or correct the editorial.  If I didn’t know better, I’d think the newspaper is so desperate to defend Israel that it would rather mislead its readers than print the truth…

Ruth Wedgwood Defends Secretary-General Ban

by Kenneth Anderson

In this new piece, Ruth Wedgwood offers a defense of Ban, with particular pointedness to the US and what she fears will be a US reaction to undermine him and not allow him a second term – for not being sufficiently charismatic in the service of global governance:

Ban is a “spineless and charmless man,” wrote one Norwegian diplomat in a home-office memo almost designed to leak.

At least he wasn’t called a “monster.”

This game of whispers may amuse coffee-lounge diplomats, but any enthusiast of the sport of destroying U.N. secretaries-general should think again. It would be especially unworthy for the U.S. to add fuel to this no-alarm fire. The U.S. already has a bad record in this respect, and three cases might seem a trend.

I myself think the lack of charisma charge somewhere between silly and misconceived – thinking that an SG needs charisma in that way quite mistakes the office in what it can actually be …

Why the G-20 Benefits from Avoiding International Law

by Julian Ku

The essential irrelevance of  the United Nations to global economic policy was nicely illustrated this week by President Obama’s trip from New York to Pittsburgh, site of the G-20 summit.  Potentially important, even momentous decisions, on economic and financial policy were discussed and maybe even decided there, while the U.N. General Assembly meetings showcased its usual mix of wacky heads of state (Qadafi!) and unbelievably bad traffic patterns.

Still, what exactly is the G-20 and why do we have this weird formal/informal club of countries running things like how much bankers should get paid and banks’ capital reserve requirements? The answer is, I think, that formal international institutions are clunky and often tripped up by basic formalities of the treaty process that creates them.  Not so with clubs like the G-20.  I have to admit I don’t understand much of what this statement of the result of the summit means, but it sure reads a lot better than any Security Council or General Assembly resolution.

Obama, Hypocrisy, and Presidential Control Over Preventive Detention

by Julian Ku

The Washington Post has a blistering editorial on the Obama Administration’s quiet decision last week not to seek legislative authorization for the preventive detention for terrorist suspects. It is the, the Post declares, a “politically expedient and intellectually dishonest route.”

Like President George W. Bush, President Obama now asserts that the 2001 Authorization for the Use of Military Force gives him the right to hold some terrorism suspects indefinitely without trial. At Guantanamo, this is expected to affect 50 or so prisoners who, the administration has determined, can be tried neither in federal court nor before a military commission but are too dangerous to release.

The White House and its allies knowingly engage in a distortion. The question isn’t whether the president may indefinitely hold some detainees — the courts have ruled that he can under certain circumstances — but what process should be available to those subject to such detention. This is the debate that Mr. Obama now lacks the courage to engage.

The Post reserves its toughest criticism for the “civil liberties” community.

If the administration’s abdication is irresponsible, the reaction of the civil liberties community has been breathtakingly hypocritical. The American Civil Liberties Union has consistently opposed any indefinite detention regime and pushed for detainees to be charged in federal or military courts or released. So we wouldn’t expect them to join us in criticizing Mr. Obama for failing to seek a new legal regime. But it is odd that the same policy which, when pursued by the Bush administration, constituted “thumbing its nose at the Constitution” and putting a “stain on America’s name at home and abroad” now elicits nothing but a few measured tsk-tsks.

The (sort of) hypocritical position of the groups formerly critical of the Bush executive detention policy was foreshadowed by Deborah’s post here a few weeks ago.  I got a taste of it a few weeks ago at this Case Western Roundtable on preventive detention when I realized that folks at Human Rights First were actually opposing legislative action on detention policies.
Is it hypocritical of groups like Human Rights First to support the Administration’s reliance on one of the Bush Administration’s theories of executive detention?  Not as much as perhaps the Post thinks, but certainly it is a little odd.  Groups like the ACLU and Human Rights First denounced the idea of executive detention in some of the strongest terms during the Bush Administration.  The fact that there is judicial review now, thanks to Boumediene, doesn’t change the situation as much as people think.  Nothing in this Human Rights First report seems to contemplate indefinite detention without trial somewhere other than Guantanamo without specific and clear legislative authorization and guidance.  The President is still claiming the power to detain individuals (and the scope of his claim is still a little murky since it could very well apply to folks seized outside of Afghanistan) pursuant to a general use of military force authorization.  Somehow, I don’t think such groups would be so relaxed if President McCain had decided the same thing.  But maybe not. The Dean of Rutgers Law (Newark) seems to be leaning toward it.

Facebook and Territorial Disputes

by Chris Borgen

CNN has the story:

“Where do you live?”

Seems like a simple question, doesn’t it?

But the answer is not clear-cut for everyone. Take people who live in Srinagar, the capital of Kashmir, which is wedged between India, Pakistan and China. India and Pakistan have gone to war repeatedly over the disputed territory.

Technically, it’s “Indian-administered.”

But on Facebook, it’s simply in India.

 Questions like this have been causing Facebook and other social networking sites a headache, because in terms of reactions from current and potential customers, it is “damned if you do, damned if you don’t.” CNN explains:

Facebook recently changed its listing for the Golan Heights — which Israel captured from Syria in 1967 — so users there could choose to say whether they live in Israel or Syria.

It was responding to pressure from a pro-Israel group called HonestReporting — and from Facebook users who set up a group on the site itself called “Facebook, Golan Residents Live in Israel, not Syria.”

“It is not for Facebook to decide the national origin of Golan residents,” the group says on its page.

Facebook may have pleased pro-Israel users there by giving them the choice to say where they live, but not all Syrians were happy about the change.

“I think Facebook sort of shot itself in the foot to make it optional for the Golan to say this is part of Israel,” said Ammar Abdulhamid, a Syrian scholar based in the United States.

“This is against international law,” he said.

 It should come as no surprise to readers of this blog that…

The Onion Shows the UN How to Deal with Collective Action Problems

by Kenneth Anderson

So, on the lighter side, the Onion shows Secretary General Ban how to deal with collective action problems once and for all … bonus points for managing to bring up the Monterrey Consensus.

The United Nations, a highly organized governing body bent on world peace, has obtained a nuclear warhead and intends to use the dangerous device to pursue its radical human rights agenda, sources reported Monday.

ENLARGE IMAGEUN BuildingThe U.N. Headquarters in New York has flags from all over the world and enough uranium to wipe Israel off the map.

News of the nuclear weapon first surfaced late last week when the United Nation’s own watchdog group, the International Atomic Energy Agency, released startling new satellite photos of the uranium-based device. Shortly thereafter, U.N. Secretary-General Ban Ki-moon issued a short and brazen list of demands, calling on all nations to “bow down at once to social progress.”

“Tremble before the awesome might of this cooperative assembly of appointed representatives,” said Ban, boldly holding a stack of diplomatic resolutions in his hand. “At last, when the United Nations calls for the development of more sustainable agricultural practices, the world at large will listen.”

Added Ban, “We will no longer be ignored.”

Israel Threatens the Palestinian Authority over the ICC

by Kevin Jon Heller

Economic blackmail is a part of politics — but Israel’s latest ultimatum to the Palestinian Authority regarding the ICC is still unfortunate:

Israel has warned the Palestinian Authority that it would condition permission for a second cellular telephone provider to operate in the West Bank – an economic issue of critical importance to the PA leadership – on the Palestinians withdrawing their request at the International [Criminal] Court.

The issue of a second cellular provider is at the center of talks between the PA, the international Quartet, and Israel, and has been ongoing for some months. Currently the sole provider is Pal-Tel, and the PA prime minister, Salam Fayyad, considers the introduction of another carrier as an important step in improving the civilian infrastructure in the West Bank. The project is central to Watanya, the company that is set to serve as the second provider, and profits are expected to be substantial.

However, if the project is not approved by October 15, the PA will be forced to pay a penalty estimated at $300 million, the sum that has already been invested in licensing and infrastructure.


In Israel the argument is that the PA is being unfair, and that at the time of the operation in the Gaza Strip, last winter, its senior officials encouraged their Israeli counterparts to step up the pressure on Hamas, and even to attempt to bring its rule in the territory to the point of collapse. However, at a latter stage they joined those decrying Israel and its alleged actions in the Strip.

In light of this tension, the chief of staff conditioned his approval of a second cellular provider to the Palestinians’ withdrawing their appeal to the court.

“The PA has reached the point where it has to decide whether it is working with us or against us,” senior figures in the defense establishment have said. At the PA it is being said, in response to the Israeli demands, that Abbas and Fayyad will water down their appeal to the IC[C], though they will refuse to promise that it will rescinded entirely.

I have been critical of Moreno-Ocampo’s failure to immediately reject the Palestinian Authority’s attempt to accept the jurisdiction of the Court on an ad hoc basis.  The likelihood that the Appeals Chamber would ever approve such a move, however, is essentially zero.  So it would be very unfortunate if Israel dealt a serious economic blow to the PA — and to the Palestinians living in the West Bank — as punishment for an effort that has no chance of succeeding.

ICC Permits Limited Observations on Genocide Appeal

by Kevin Jon Heller

Last January, I blogged about a request by the Sudan Workers Trade Federation Union (SWTU) and the Sudan International Defence Group (SIDG) to submit a brief to the ICC opposing the warrant for Bashir’s arrest.  The Appeals Chamber recently granted the request, limiting the groups to commenting on the legal issue at the heart of the appeal — whether the Pre-Trial Chamber correctly interpreted Article 58’s “reasonable grounds” requirement for issuing an arrest warrant.

I think this is clearly the correct decision, and it is important to recognize that it represents — contrary to breathless headlines in the Sudan Tribune like “ICC judges allow pro-Sudan groups to rebut genocide appeal” — a major defeat for the SWFTU and SIDG.  As I pointed out in January, the brief focuses almost exclusively on arguing that the arrest warrant will undermine the prospects for peace in Darfur (though it’s clear that the brief is much less interested in peace than in shielding Bashir from accountability); it says very little about the (non-existent) legal merits of the PTC’s decision.  Here is what I wrote then:

I simply want to note that the request’s insistence that arresting Bashir would damage the peace process in Sudan is legally irrelevant to the OTP’s request for an arrest warrant.  Article 58 of the Rome Statute makes very clear that the Pre-Trial Chamber cannot consider issues of peace vs. justice when it decides whether to issue a warrant: “the Pre-Trial Chamber shall, on the application of the Prosecutor, issue a warrant of arrest of a person if, having examined the application and the evidence or other information submitted by the Prosecutor, it is satisfied that… [t]here are reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court.”  That’s it: if the reasonable grounds exist, the warrant must be issued.  End of story…

Cyborg Insects

by Kenneth Anderson

Technology marches on, and here we have a demonstration video, on YouTube and Wired’s Dangerroom, showing how a flying beetle can be implanted with miniaturized neural electrodes that allow the human operator to stimulate muscles that cause it to fly to the right or left.  The applications to the battlefield, counterterrorism, etc., are obvious.

These little cyborgs will eventually, I presume, be deployed, first for intelligence gathering at both the tactical level of, for example, urban battlefields.  Once a way is figured out to load them with a camera or, perhaps, utilizing their own visual inputs, they can be used to figure out who’s the bad guys in an apartment or building.  The possibilities for discriminating targeting go up  lot.  Later, someone might figure out a way to attach a little bomb, so fly up to target, have a human operator make a positive id and then boom.  There’s a strategic use of these cyborgs – to gather intelligence using thousands and thousands of these all processed through a central computer to help identify where terrorists are training or where bin Laden is located or many other surveillance tasks that cannot be accomplished now that everyone knows not to put things where they are visible from satellites.

Koh Implements Signing Statements That He Believes are Unconstitutional

by Julian Ku

Ed Whelan notes (in his typically colorful way) that State Department Legal Advisor Harold Koh has been implementing one of President Obama’s signing statements with respect to meeting with designated state sponsors of terrorism at U.N. meetings.  A federal law passed by Congress and signed by Obama prohibits such meetings, but Obama issued a signing statement saying the provision on meeting with “state sponsors of terrorism” at the U.N. is unconstitutional and he would ignore it.

Koh is on the record, very publicly, in support of the view that any such signing statement, which would allow the President to ignore a federal law is “contrary to the rule of law and our constitutional system of separation of powers…”.  But he obviously has an obligation to follow the policy set by the President.  I assume this is just one of those cases where you have to swallow your views, but its gotta hurt.  Or maybe signing statements aren’t such a big deal after all? After all, his ultimate boss has changed his mind about them!

Peggy Replies to Professor Paulsen

by Kenneth Anderson

I opened the latest SSRN Public International Law listings this morning and noted with pleasure Peggy’s response to Professor Michael Stokes Paulsen’s recent article on constitutional interpretation and international law.  Peggy’s reply is in the Yale Law Journal online edition.  As always Peggy makes fresh and lively arguments, and although I incline to Professor Paulsen’s views on this, I think anyone looking for a full statement of the issues and arguments needs to read them together.  Also, taken together, they an excellent example of what a good scholarly exchange should be.  Congratulations to Peggy!  From the abstract’s opening:

This essay reply to Professor Michael Stokes Paulsen, “The Constitutional Power to Interpret International Law,” 118 YALE L. J. 1774 (2009) argues that Paulsen’s static, formalist portrait of the foreign affairs Constitution stands in stark contrast to the dynamic realities of transnational lawmaking today.

Getting Going at DRL

by Deborah Pearlstein

Among many administration doings on the human rights front this week, the Senate this week voted to confirm Mike Posner as Assistant U.S. Secretary of State for Democracy, Human Rights and Labor. Mike had served as executive director at Human Rights First (formerly the Lawyers Committee for Human Rights) for decades since its founding, and is as steeped as anyone in the full breadth of current human rights challenges in the U.S. and abroad. (Full disclosure: he’s also my former boss.) For the record, here’s the email Human Rights First sent to its mailing list announcing the confirmation, from Elisa Massimino, the current executive director.

Well, it’s official. Last night the Senate voted to confirm Mike Posner as Assistant Secretary of State for Democracy, Human Rights, and Labor. Today, after 31 years at the helm of Human Rights First, Mike starts on a new journey, taking up the challenge that President Obama and Secretary Clinton have given him to guide U.S. human rights policy and restore U.S. leadership and commitment to the rule of law. I can’t think of anyone better suited to meet that challenge than Mike.

As Mike steps onto this broader stage, he knows we are right behind him—to encourage him, to support him, and to press the United States to live up to its ideals and commitments to respect human rights here at home and around the world. Someday, he may regret that he trained us all so well—but I have a feeling that will make him smile.

Last week, as the staff at Human Rights First toasted Mike in anticipation of his impending confirmation, Mike’s parting words underscored for all of us why he has been able to make such a difference in the world over so many years: “It’s about people.” That has made all the difference, both for those of us who have been privileged to work for him, and for the wider world. Mike never forgets why he is in this fight—to be a voice for the voiceless and to protect the vulnerable, whose lives are in the balance.

Mike takes that profound commitment, which has guided him throughout his career, into a new realm today. We are incredibly proud and excited for him as he takes up this new challenge. I hope you will join me in celebrating Mike’s accomplishments and wishing him the best for the challenges that lie ahead.

Chevron Strikes Back Against Ecuador

by Julian Ku

I’ve only been vaguely aware of the ongoing battle between Chevron and Ecuador.  Ecuador courts are currently entertaining an enormous lawsuit against Chevron, but Chevron has really taken the offensive by releasing videos suggesting that the Ecuadorian judge has been accepting bribes.  And in its latest salvo, Chevron has filed an investor-state claim under the United States- Ecuador Bilateral Investment Treaty (I think it is 1993 but the WSJ says there is a 1997 one).  In any event, it is a novel claim since it seeks to flip all liability for damages back to the government of Ecuador, and even seeks moral damages.

This could be a tremendous case, given its unusual facts. Offhand, it actually resembles Loewen, which challenged a domestic court proceeding (in the United States) as an effective expropriation and unfair and inequitable treatment.  It seems like a good move by Chevron, in any event, since it keeps Ecuador on the defensive.

Karadzic Prosecutors to Trial Chamber: “No, Thanks.” (Updated)

by Kevin Jon Heller

Seemingly more interested in placating victims groups than the judges who will determine Dr. Karadzic’s guilt or innocence, prosecutors have refused to trim their monstrous and completely unworkable indictment:

In written submissions released by the tribunal Tuesday, prosecutors say further cutting down their 11-count indictment against Karadzic to squeeze it into a year would prevent them presenting evidence encompassing all his alleged crimes.

“The prosecution cannot … complete its case within a calendar year without sacrificing a core component of its case,” prosecutors warned.


Earlier this month, the judge steering Karadzic’s case toward trial urged prosecutors to trim the indictment so they can present all their evidence in a year.

Judge O-Gon Kwon said the trial should last three years at the most once Karadzic had called defense witnesses and judges have considered verdicts.

Judges are under pressure from the United Nations to finish all trials as soon as possible and close down the court, which the Security Council set up in 1993.

But a logjam of cases in its three courtrooms means that Karadzic’s trial will likely sit for only three half days each week. There are 23 suspects on trial in eight different cases as well as six cases featuring 14 suspects at appeal.

Prosecutors said cutting their case “to offset scheduling constraints” would rein in their ability to present all three key elements of their case — the ethnic cleansing of Muslims and Croats from scores of towns and villages, the siege of Sarajevo and the 1995 murder of 8,000 Muslims in Srebrenica — Europe’s worst massacre since World War II.

“The only way the prosecution could effect such a dramatic reduction of its already streamlined case would be to allow critical allegations against Karadzic to remain unadjudicated,” they said.

Prosecutors already have trimmed back the number of crime sites included in the indictment, but said they still need more than 250 hours to present all their evidence and witnesses.

Frankly, as one Dr. Karadzic’s legal advisors, I’m delighted by this latest turn of events.  The Trial Chamber has already evidenced more than enough hostility toward Dr. Karadzic’s legal arguments; perhaps this will be the wake-up call the Chamber needs to realize that the prosecution has very little interest in providing Dr. Karadzic with a fair trial and does not particularly care about the significant constraints under which the Tribunal is currently operating.

UPDATE: Simon Jennings, an excellent reporter for IWPR, has a new article examining the “stand-off” — his words — between the prosecution and the judges.  It adds a great deal of additional detail to the article quoted above.  I was particularly struck by a comment made by Paul Troop, who has defended cases at the ICTY:  “Judges will not want to start this trial on what they see as a negative note in terms of the perspective of the victims.”  We should all hope he is wrong — the obligation of the judges is to ensure that Dr. Karadzic receives a fair trial and that the prosecution presents a case that is consistent with the Tribunal’s rapidly-dwindling time and resources.  Nothing more.  Representing the victims is the prosecution’s job.

Obama at the Security Council: “International law is not an empty promise….”

by Peggy McGuinness

It’s a great day to be teaching the powers of the Security Council to my international law class!  President Obama presided this morning over the Security Council meeting on non-proliferation, securing a 15-0 vote for UNSC resolution 1887, which aims to bolster the nuclear non-proliferation regime through strengthening the NPT, enforcing existing resolutions on North Korea and Iran, and reaffirming the role of IAEA in promoting peaceful nuclear programs and enforcing compliance with the NPT.  Here are some excerpts from AP of his address to the Council:

The full video of Obama’s intervention can be seen here.  The full text of his remarks is here.

The quote of the day:  “International law is not an empty promise, and treaties will be enforced.”

Yes, this is a public speech with a lot of political rhetoric and an aspirational tone.  But with each address to international audiences, Obama is forwarding his new policy ofreengagement with the UN and other multilateral institutions.  But it is not speech-making solely for the symbolic impact, but a way of putting the full force of his presidency behind new multilateral initiatives.  Yesterday’s speech before the GA laid out the broad outlines of this new approach, clearly demarcating the break from the Bush administration. (For one of the best analyses of the speech, read DavidRothkopf’s take over at Foreign Policy.) Today we saw the president engaging in multilateral law making.  It is a rare occasion when heads of state meet at the Council; even rarer when they pass a resolution (unanimously) that forwards an agenda item that is central to international security.  Perhaps it is not compelling viewing, but, much as C-Span coverage of congressional committee meetings shows how law is made at home, this is the stuff of international law.

The White House Press release summarizing res. 1887 is after the jump. I’ll post the full text of the resolution shortly.

China Invokes the “Public Morals” Defense!

by Julian Ku

I know you have all missed my blogging about international trade law.  So now that I’m back (at least for a while), let me highlight a neat legal issue raised by China in its appeal of a recent WTO decision against its restrictions on foreign media.  According to this WSJ report, China has raised the “public morals” defense contained in Article XIV of the General Agreement on Trade in Services to challenge a WTO panel report on Chinese restrictions on the distribution of foreign media within China.   The public morals defense is a delight to academics, but it has been analyzed only once by the WTO Dispute Settlement Body, when the U.S. invoked it to justify its restrictions on internet gambling.  This could be a fascinating case since it will probably necessitate a WTO panel considering distinctly non-liberal non-Western conceptions of public morals. Let a hundred law review articles bloom!

How is the UN Security Council Doing?

by Peggy McGuinness

On the eve of President Obama taking the chair at the Security Council, David Bosco takes on a few of the common assumptions about the Council over at Foreign Policy.  I largely agree with Bosco’s quick (and yes, Ken, “breezy” – it seems to be a quality FP is promoting these days!) take on the central themes: (1) the Council does a lot more and is a great deal busier than the average observer gives it credit for, and despite the demands of deliberation, moves much faster now than during the Cold War; (2) Obama may (or may not) rely on the Council more than Bush (this point is largely contingent on the success of Obama’s broader reengagement with the UN; (3) the question of “legal” powers of the Council to regulate the use of force is largely irrelevant; (4) the question of reforming the veto is also irrelevant since the veto is here to stay; and (5) expansion of Council membership will not necessarily increase its legitimacy.

Bosco is, of course, right about the effect that daily consultation and deliberation among the world powers has on maintaining peace and security.  This is a “talk is good”/constructivist view of the Council:

[P]lenty of the council’s frenetic efforts have required tortuous negotiation, but as it turns out, talk is an important aspect of what the council does. Achieving consensus among the council’s five veto-wielding permanent members — the United States, Britain, France, Russia, and China — is rarely easy. Each power has a unique set of interests and relationships that it seeks to protect. Even when the permanent five (P5) members can agree, they have to convince at least four of the elected council members in order to take formal action. Frustrating though it can be, that process — of the major powers talking to each other day after day — is one of the council’s principal contributions to international stability. Through sheer repetition, the Security Council has instilled a culture of great-power consultation and compromise that may be as important to international peace as any peacekeeping mission, sanctions regime, or war crimes investigation.

I was also struck by Bosco’s take on the question of legitimacy, legality and the politics of the use of force, which I have written about here and here:

Major powers (and plenty of minor ones) have taken military action again and again without the council’s approval. Plenty of these actions have been misguided, but others have been necessary. The United States itself used force without council approval under the Bill Clinton administration when it launched airstrikes in 1999 to force Serbia to relinquish the disputed province of Kosovo. Earlier this month, President Obama sent commandos into Somalia to hunt down suspected terrorists without stopping to ask for a council debate and resolution on the subject. Certain purists may insist that all these actions were illegal and illegitimate, but the actual practice of international relations matters more than legal doctrine. The Security Council is an important avenue to international legitimacy, but certainly not the only one. Regional organizations like NATO, the European Union, and the African Union will often be alternatives. The Kosovo operation, for example, was endorsed by NATO rather than by the Security Council.

I would add that the “actual practice of international relations” can become international law.  Bosco’s formulation of politics/international relations as separate from international law reflects, perhaps, some of the doctrinal walls that still exist between the two academic disciplines.  In the wake of these recent examples of non-UN-authorized operations, the struggle for both disciplines is finding an appropriate framework through which to reconcile “legitimacy” and “legality” of the use force.

Eric Posner’s “Think Again” Column on International Law, and the Effect of the US Security Guarantee

by Kenneth Anderson

Over at Foreign Policy magazine’s blog, Eric Posner has a brief, breezy column on differences, or not, between the Bush and Obama administrations on international law.  Fun, quick read, whether one agrees or not.  Events of the moment – the opening of the UN General Assembly, the UN confabs on things like climate change, the G-20 meetings, etc. – provide many opportunities to consider Eric’s assessment of how international law works, or doesn’t.

There are things on which I imagine the G-20 will finally manage to come to some reasonably wide agreement, and manage reasonably wide adherence – most important, capital adequacy standards for banks.  That’s different from saying that Basle III will turn out any better than Basle II, but I think this level of matters of shared standards will look much more like trading regimes than the track record of big political stuff, whether in climate change, security, or larger issues of the global economy.  Which is to say, on the Anderson view, the closer an issue gets to looking like political governance, the more likely it will receive grand diplomatic rhetoric and the less likely that it will actually happen.

The Wrong Trouble with International Law

by Julian Ku

University of Pennsylvania law professor Paul Robinson had a stinging, but somewhat confusing critique of the international law governing the use of force in yesterday’s WSJ.

Last week the United Nations issued a report painting the Israelis as major violators of international law in the three-week Gaza war that began in December 2008. While many find the conclusion a bit unsettling or even bizarre, the report’s conclusion may be largely correct.

This says more about international law, however, than it does about the propriety of Israel’s conduct. The rules of international law governing the use of force by victims of aggression are embarrassingly unjust and would never be tolerated by any domestic criminal law system. They give the advantage to unlawful aggressors and thereby undermine international justice, security and stability.

This is not actually a unique critique of jus ad bellum, the law governing when a nation may engage in the use of military force (as opposed to jus in bello) which is the law governing how that force is used.  I find Robinson’s critique of the rules of jus ad bellum persuasive as applied to countries in situations like Israel (or the United States). But I thought that the main critique of Israel’s actions recently by the UN was jus in bello, not jus ad bellum, e.g. that regardless of whether Israel had the right to strike back, when they did strike back they did so without adequately trying to minimize noncombatant casualties (see Goldstone’s NYT op-ed here).

Now I think there are problems with Goldstone’s analysis on this front as well.  Wasn’t there lots of evidence of Israeli attempts to minimize civilian casualties? And what does the law of war say about attacking combatants who are shielded by noncombatants?  But that is not the  critique Robinson offers.  Robinson’s argument, while persuasive on some levels, is simply not responsive and therefore does not really do much for Israel’s defenders.  As Kevin’s post suggests, Israeli defenders (while their heart is probably in the right place), are simply not making much headway if they offer sloppy or misdirected defenses of Israel’s actions.

First Ever(?) Teaching International Law Workshop

by Julian Ku

I break my self-imposed blog exile to shamelessly promote an event we are hosting at Hofstra this Friday: the first ever all day teaching workshop devoted solely to teaching international law. The event is sponsored by the American Society of International Law and the American Branch of the International Law Association with the support of Hofstra. (OK, I don’t actually know if it is the “first ever”, but I have never heard of one before but I’m sure one of my readers will correct.)  The full program can be found here.

I would have advertised for more participants, but so many folks have registered that I’m already nervous about whether I’ve reserved enough parking spots for everyone. Seriously, it should be an interesting day. The topics will range from macro (e.g. what exactly should we teach in “international law,” should it be a required course?) to micro (how to incorporate specific international law issues into teaching).  OJ’s own Chris Borgen will lend us his wisdom. With some help from my intrepid students, I hope to post some summaries and discussions of the day’s presentations here and on the Hofstra Law website.

The Worst Anti-ICC Editorial Ever

by Kevin Jon Heller

As part of the backlash against the Goldstone Commission’s recommendation that the Security Council refer the situation in Gaza to the ICC if Israel and Hamas do not conduct credible investigations of their crimes, the far-right Jerusalem Post published an editorial today entitled “Strange Justice: The ICC, Europe, and the World.”  The editorial was ostensibly written by a Researcher at Hebrew University of Jerusalem, but one wonders what, exactly, the author actually researches — the editorial contains more basic factual errors than any editorial I have ever read.  Normally, I would just laugh the editorial off and turn to more pressing writing matters.  But I think it’s important to make clear just how little the Jerusalem Post seems to care about the quality of its editorial pages — after all, the newspaper is likely the primary source of information about the ICC for many conservative Israelis.

Let slip the fisking!

The recent revelation that the gas-station-attendant-turned-Liberian-warlord Charles Taylor has converted to Judaism once again reminds us that he is in the International Criminal Court (ICC) prison in The Hague.

First sentence, first obvious error: Taylor is in the UN Detention Centre in The Hague, which is not run by the ICC.  (Although the ICC does have prisoners there.)  Moreover, Taylor is being tried not by the ICC, but by the Special Court for Sierra Leone.  (Lest the reader think my interpretation of the statement is uncharitable, keep reading.  The author has no idea that the international tribunals are separate institutions.)…

UN General Assembly Week 2009: What to Watch

by Peggy McGuinness

My sympathies are with those who have to drive anywhere in Manhattan this week as the General Assembly gets underway.  In past years I have experienced the privilege of being inside the security cordon and also the inconvenience of being outside it.  But now we can all experience being inside the main public events through the UN Webcast!  The link is here (real player installation needed).  If you are wondering what to watch for, Mark Leon Goldberg has a useful guide over at Foreign Policy.  His top five: The climate change meeting today; President Obama presiding over the Security Council’s Thursday meeting on non-proliferation (the U.S. holds the SC presidency this month); Obama’s address to the GA on Wednesday; Muammar Qaddafi’s appearance at the GA (for antics-watching value, but also to see how Qaddafi fills Libya’s seat on the Council this week); and Hu Jintao’s presence at — indeed, the ubiquity of China’s engagement in — all the events of the week.

President Obama will be watched particularly closely, as it is his first UN GA meeting and the first full roll out of the administration’s UN policy. The “scene-setter” from U.S. UN Ambassador Susan Rice outlining U.S. objectives for the week and the administration’s re-engagement with the UN is here.  Ban-Ki Moon can also expect to be watched closely by both his critics and supporters — particularly for any signs of success at the climate change meeting, an issue on which he has staked a great deal of his political capital.

As Churchill famously said, it is better to “jaw-jaw” than “war-war.”  And there will be plenty of jaw-jawing this week — from the climate meeting, to the GA plenary, to the many bilateral, trilateral and multilateral meetings on the “margins” of the GA, to the G-20 summit opening in Pittsburgh on September 24. One of the core strengths of the admittedly flawed institutional architecture of the UN is its role as the global diplomatic forum.  There is no place in the globe or a date on the calendar that offers the U.S. — or any other state —  the ability to engage more efficiently in the art of face-to-face, high-level diplomacy than the General Assembly week.

Would Moreno-Ocampo Actually Investigate Only an Israeli Officer?

by Kevin Jon Heller

According to Newsweek, the answer may well be yes:

As chief prosecutor of the International Criminal Court, Luis Moreno-Ocampo has so far steered clear of controversial cases. In doing so, he hoped to allay U.S. fears that the ICC would become a politicized tool for settling scores. Which is why it’s so surprising that Moreno-Ocampo is now considering an investigation into whether Reserve Lt. Col. David Benjamin, an officer in the Israeli military, authorized war crimes during the Gaza campaign earlier this year. Israel did not sign the treaty that created the ICC and thus is outside Moreno-Ocampo’s jurisdiction, but thanks to a bit of legal sleight of hand, the prosecutor told NEWSWEEK he believes he has all the authority he needs to launch an inquiry: Benjamin holds dual citizenship in both Israel and South Africa, and the latter has signed the ICC’s charter, bringing Benjamin into the court’s orbit.

The case itself may be hard to substantiate; Benjamin told NEWSWEEK he was out of the country during most of the Gaza operation and had no role in its planning. Still, the dual-citizenship issue could set a dangerous precedent for Israel and the United States, which also rejects ICC jurisdiction. If the court can investigate an Israeli with South African citizenship, why not an American with Mexican citizenship? “The implications for the U.S. are potentially very troubling,” says Michael Newton, an international-law professor at Vanderbilt University. But even more so for the fledgling court, which is still struggling to establish legitimacy.

I don’t see what is so troubling about the idea of prosecuting someone who has dual citizenship in a non-ICC state and an ICC state.  Given that nationality is one of the Court’s primary jurisdictional bases (along with territory), no “sleight of hand” would be involved in the the ICC investigating an American with Mexican citizenship.  (Law aside, it’s revealing that Newsweek‘s hypothetical defendant is described as an “American with Mexican citizenship,” instead of as a “Mexican with American citizenship.”  Only an American journalist could so unselfconsciously presume that American citizenship is at the core of all dual citizens’ identities.)

That said, investigating Lt. Col. Benjamin would be a terrible idea.  It is bad enough that Moreno-Ocampo did not immediately reject the Palestinian Authority’s attempt to accept the jurisdiction of the Court on an ad hoc basis, which directly contradicts the plain language of Article 12(3) of the Rome Statute: “a State which is not a Party to this Statute is required under paragraph 2… may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question” (emphasis added)…

Conference Prospectus — ICL as Cultural Hybrid

by Kevin Jon Heller

What follows is a conference announcement by my friend Mark Osiel.  He welcomes — indeed wants — feedback.  I hope to attend and discuss the ICC Pre-Trial Chamber’s indefensible dilution of Article 30’s default knowledge mens rea to include dolus eventualis.

Common Civility:  International Criminal Law as Cultural Hybrid

Here’s a prospectus for a conference I’m trying to organize with two other professors of international criminal law, Kai Ambos (Göttingen) and Elies van Sliedregt (Free Univ., Amsterdam).  The idea grew out of several conversations during the year I recently spent in The Hague, as a co-director of the T.M.C. Asser Institute.  We have some money from the Dutch government and Asser, but will need more.

If you pass any time around the international criminal tribunals, you quickly face the fact that the key disagreements about what approach this new field should take to myriad doctrinal questions tend to plays out as a conflict between lawyers from the “common law” and “civil law” world.  This is initially surprising, since one of the first thing one learns in law school is that this historical distinction is supposed to have broken down over time, to be grossly oversimplistic in ignoring the many overlaps and cross-influences across these two, once-insulated legal “traditions.”

So we wonder: What have been the respective contributions of civil law versus common law (and attorneys from each legal culture) to the recent development of international criminal law? We anticipate bringing together legal scholars from both sides of the pond to discuss such questions as:

Why have international criminal courts and drafters of the Rome Statute of the International Criminal Court chosen to adopt common law approaches to certain issues (e.g., direct witness examination) but civil law ones on other matters (e.g., acceptance of hearsay evidence)?  In each such instance, can the decision to follow one legal tradition’s approach rather than the other’s be ascribed to anything more rational than the fortuity of which lawyers from which cultural background happened to be assigned a given case?  “No” is the near-consensus answer among most people we know…

Bernard Kouchner Revives Call for Global Financial Transaction Tax

by Kenneth Anderson

French Foreign Minister Bernard Kouchner calls in the Financial Times for a tax on global financial transactions as a means of funding the currently moribund UN Millennium Development Goals.  It is an idea that has been floated repeatedly since the 1990s – sometimes with the emphasis on the tax itself as a means of deliberately slowing down and making more costly the movement of global capital (essentially a turnover tax on transactions) and other times with the emphasis on the uses of the funds, whether to fund the UN or development goals generally or global income transfer or, as in this case, the MDGs …

The Former CIA Directors’ Letter to President Obama

by Kenneth Anderson

In case you were curious about the text of the letter sent by former directors of the CIA to President Obama urging him to reverse the AG’s decision to appoint a prosecutor to investigate various CIA activities under the Bush administration, RCP has posted a pdf of the text.  It is short and, unsurprisingly, rests on the names of the signatories rather than anything especially said in its text.  Not being very clued into the day to day politics of these things, I don’t really know what effect this kind of thing has, if any.  However, here is the pdf.  (Update:  Here is the WaPo story from Saturday, September 19, 2009, reporting that the DOJ investigation is likely to be “narrow.”)

Women in International Law

by Duncan Hollis

IntLawGrrls has a new project going titled, Experts at Law.  Here’s how they describe it:

Organized by field of expertise, this series of posts aims to provide easily accessible information to conference organizers, media, and others who seek expert opinions on a variety of subjects while ensuring gender balance. The list below provides institutional affiliations for, as well as links to, the bios and publications of, and blog posts by, or about our Experts at Law, who are comprised of IntLawGrrls bloggers, guests, and alumnae and presented in alphabetical order.

Today’s inaugural post lists women scholars on war and conflict, including international criminal law and international humanitarian law.  It’s a great idea, although I’d hope these lists might eventually migrate to include women who have not yet associated themselves with IntLawGrrls but have clear expretise in one or more of these fields.  For example, I do think our own bloggers, Peggy McGuinness and Deborah Pearlstein warrant attention, not to mention some of the leading figures in the field, like Louise Doswald Beck or Ruth Wedgewood.  Still, on the whole, this project seems like a worthwhile endeavor, and I’m looking forward to seeing additional lists as they emerge.

Victims Groups Unhappy With Prospect of a (Reasonably) Manageable Karadzic Trial

by Kevin Jon Heller

The Trial Chamber in Karadzic has instructed the prosecution to reduce the scope of its indictment from monstrous and completely unworkable to somewhat less monstrous and somewhat less completely unworkable.  The result?  Victims groups burning judges and prosecutors (and my client) in effigy and threatening not to cooperate with the prosecution:

Several hundred members of victims’ associations have protested in front of the Hague Tribunal and Prosecution building in Sarajevo, setting photos of judges, prosecutors and indictees on fire.

The protest was organised by the Association of Detainees of Bosnia and Herzegovina, the Association of Mothers of Srebrenica and Zepa Enclaves, and the Women, Victims of War group.

Organisers said the protest was intended to express dissatisfaction with a proposal from the Trial Chamber, sitting in the case of Radovan Karadzic, that the Prosecution reduce the indictment against the former Bosnian Serb president and not present evidence pertaining to certain crimes.

Protestors burned photos of Patrick Robinson, the president of the International Criminal Tribunal for the former Yugoslavia, ICTY, Chief Prosecutor Serge Brammertz and O-Gon Kwon, the judge chairing the Trial Chamber that will hear the Karadzic case. They also set photos of Karadzic on fire.

Association representatives asked for an urgent meeting with senior Tribunal officials, saying that if the indictment is reduced they will refuse to cooperate with the ICTY. BIRN-Justice Report has learned that a group representing victims will travel to The Hague today.

“The victims will no longer appear as witnesses at trials. We will ignore them. We will not take part in the work of the Tribunal. They know they cannot go on without our help. So, they should then release Karadzic,” Munira Subasic from the Mothers of Srebrenica and Zepa Enclaves association told reporters.

I guess the victims groups would prefer a four-year circus in which the defendant drops dead before the verdict…

How the U.S. and Other Democratic States Can Fix the Human Rights Council

by Peggy McGuinness

Paula Schriefer of Freedom House makes a compelling argument about the central failings of the UN Human Rights Council and how they can be overcome in this piece over at Foreign Policy.  It is not, as many argue, the mere presence of bad actors on the Council or the ability of those states and their friends to run the place and deflect attention from their appalling human rights records that weakens the Council.  The core — and fixable — problem is the failure of the bloc of democratic states to stop this bad behavior in its tracks:

The council’s primary weakness is not that the world’s most repressive societies manage to get themselves elected and then run roughshod over the council’s other members, but rather that the majority of the world’s democracies let them do it. There are more democracies than dictatorships in the world today; yet curiously, it is the despots who focus their diplomatic energies on the council.


Despite the fact that democracies outnumber nondemocracies on the council by a ratio of nearly 2-to-1, only a handful of the council’s 47 members can be counted upon to vote consistently in accordance with human rights priorities. It will take enormous diplomatic effort to turn this around.

Schriefer argues that it will take a concerted effort by the U.S. to move the Council in the right direction, but it is well within the capacity of the U.S. to do so:

The Obama administration has already achieved one laudable success in helping to secure, in June at the last council session, passage of a resolution to continue examination of Sudan. The resolution passed, albeit just barely, because of significant behind-the-scenes U.S. lobbying that helped break down the council’s debilitating tradition of bloc voting by securing the yes votes (or in some cases the abstentions) of important African and Latin American democracies. Efforts like these require U.S. diplomats to travel to key capital cities and engage in genuine discussions with their counterparts, listening to concerns and making acceptable compromises or trade-offs.

Although the Sudan resolution marked a rare and unexpected success, it will require even greater effort to bring other council members around on fundamental human rights issues, such as protecting freedom of expression or censuring the world’s most egregious rights abusers, issues on which the council has so far failed miserably. In the coming year, the United States will have its work cut out for it in ensuring the continued mandates of special rapporteurs for countries like Somalia and Burma and in defeating the annual resolutions that attempt to criminalize speech critical of religions or religious practices.

I largely agree with her immediate “to do” list for the Obama administration:

(1) Get the Assistant Secretary for Democracy, Human Rights and Labor confirmed and in place; (2) appoint an ambassador to the Council, rather than have the Geneva representative (a slot that is also unfilled right now) cover the Council as part of a larger UN portfolio; (3) staff up both positions in Washington and Geneva so that the U.S. can do the diplomatic leg-work necessary to move the Council toward more effective oversight.

Update:  The Freedom House “The Human Rights Council Report Card: 2007-2009” can be accessed here.

ICTY Former Official Convicted

by Kenneth Anderson

The Crimes of War site has noted that Florence Hartmann has been convicted in the ICTY:

The International Criminal Tribunal for the Former Yugoslavia this week convicted a former official of contempt of court for disclosing the contents and effect of two confidential Appeals Chamber decisions. The Court found that Florence Hartmann, a French journalist and former spokesperson for the Prosecutor, had knowingly revealed in a book and an article that documents potentially implicating Serbia for the Bosnian genocide were granted protective measures so as to shield Serbia from responsibility before the International Court of Justice.

I’m sure KJH and others who follow the tribunal decisions carefully will have more to say, but I will say from my more outside vantage point that it all seems very strange to me.  Plus I will add one comment by an American official (current), okay to quote but not for attribution … “Don’t these people have better ways to spend their time and resources?”  I don’t regard myself as expert enough in the case to reach a definitive conclusion myself, but instead as perhaps indicative of a certain skepticism in some official circles.  Well, you can read about it at COW’s press release.

The Generals Dress Down Former VP Cheney

by Peggy McGuinness

Two former U.S. military commanders took on the former VP for his ongoing support of torture in this scathing op-ed in last week’s Miami Herald.  Generals Krulak and Hoar took this unusual step because they felt “duty-bound” to “repudiate his [Cheney’s] dangerous ideas.”  Hat tip to Tom Ricks, who calls it “the best article I read on the 8th anniversary of 9/11.   Here’s an excerpt:

What leaders say matters. So when it comes to light, as it did recently, that U.S. interrogators staged mock executions and held a whirling electric drill close to the body of a naked, hooded detainee, and the former vice president winks and nods, it matters.

The Bush administration had already degraded the rules of war by authorizing techniques that violated the Geneva Conventions and shocked the conscience of the world. Now Cheney has publicly condoned the abuse that went beyond even those weakened standards, leading us down a slippery slope of lawlessness. Rules about the humane treatment of prisoners exist precisely to deter those in the field from taking matters into their own hands. They protect our nation’s honor.

To argue that honorable conduct is only required against an honorable enemy degrades the Americans who must carry out the orders. As military professionals, we know that complex situational ethics cannot be applied during the stress of combat. The rules must be firm and absolute; if torture is broached as a possibility, it will become a reality. Moral equivocation about abuse at the top of the chain of command travels through the ranks at warp speed.

On Aug. 24, the United States took an important step toward moral clarity and the rule of law when a special task force recommended that in the future, the Army interrogation manual should be the single standard for all agencies of the U.S. government.

The unanimous decision represents an unusual consensus among the defense, intelligence, law enforcement and homeland security agencies. Members of the task force had access to every scrap of intelligence, yet they drew the opposite conclusion from Cheney’s. They concluded that far from making us safer, cruelty betrays American values and harms U.S. national security.

OLC on Congressional Attempts to Control Diplomacy Through Foreign Appropriations

by Peggy McGuinness

Charlie Savage has a piece in today’s NY Times on the OLC’s recent memo advising the State Department that it may ignore congressional constraints attached to the 2009 foreign appropriations bill that purport to prohibit U.S. diplomats from attending meetings led by officials from states designated as state sponsors of terrorism on the ground that such constraints unconstitutionally limit the president’s foreign affairs authority.  John Elwood discusses the memo over at Volokh here.   As several of the professors quoted by Savage note, this is not a new practice — nor was it new under President George W. Bush.  Administrations going back to Gerald Ford have pushed back on what they view as unconstitutional encroachments by Congress (typically through the foreign appropriations process) on the president’s foreign affairs authority. I am working on a longer article on this topic and will have a bit more to say in the coming weeks.  But it is worth noting that the change in administration has (rather unsurprisingly) not resulted in a change in legal advice about the core foreign affairs powers of the president.  (Julian discussed Obama’s early approach to foreign affairs signing statements here.)

The U.S. Rejoins the UN Human Rights Council

by Peggy McGuinness

An Interesting Understanding of the Security Council and the ICC (Updated)

by Kevin Jon Heller

I imagine there will be much gnashing of teeth over the Goldstone Commission’s report — the meme of the day seems to be that because the Commission was on a fact-finding mission, it wasn’t permitted to infer from those facts that war crimes or crimes against humanity were committed — but this attack deserves special mention:

Avi Bell, a professor of Law at Bar Ilan University, took exception to the report, disagreeing with its legal conclusions and pointing out, “They say they are a fact-finding mission. So how are they coming up with all these legal conclusions, especially wrong ones?”

The report is due to be presented to the U.N. Human Rights Council on Sept. 29 and the council will then decide whether to refer it to the Security Council. If it’s referred to the Security Council, that council will decide whether to adopt the recommendations.

According to Bell, if charges are referred to the International Criminal Court, the court will have no jurisdiction, since Israel isn’t a party to the court. “In order for the International Criminal Court to have jurisdiction, the accused has to be a citizen of a state that accepts the court’s jurisdiction,” he said.

To be sure, the likelihood that the Security Council will refer the situation in Gaza to the ICC is precisely zero, because the US would veto any such resolution.  But it is shocking that Bell believes that the Security Council doesn’t even have the authority to invoke Chapter VII (as required by Article 13 of the Rome Statute) and refer the situation.  Omar al-Bashir will be delighted to learn that.  As will Charles Taylor, given that Liberia is not a party to the agreement between the UN and Sierra Leone that created the SCSL.  As will all of the defendants convicted by the ICTR, which was created by the Security Council over the opposition of the Rwandan government.  (The US, by contrast, will be very surprised, as it supported creating the ICTR and SCSL and has vowed to veto any attempt to defer the ICC’s prosecution of Bashir.)

I have little doubt that the Goldstone Commission’s report will raise many difficult issues of international law.  Whether the Security Council has the authority in abstracto to refer the situation in Gaza to the ICC isn’t one of them.

UPDATE: Avi Bell has stated in the comments that the McClatchy reporter who wrote the story above misquoted him.  I believe him, and the Jerusalem Post article to which he links suggests as much.  Note, though, that Bell is quoted in the article as claiming (in the reporter’s words) that Justice Goldstone “played along” with “the original intention of the UN Human Rights Council” to “hurt Israel politically.”  That is precisely the kind of ad hominem attack that Bell claims in a later comment is Ken Roth’s primary technique for responding to his critics.

Goldstone Commission Report Released

by Kevin Jon Heller

You can find all 574 pages of it here.  From the press release:

The UN Fact-Finding Mission led by Justice Richard Goldstone on Tuesday released its long-awaited report on the Gaza conflict, in which it concluded there is evidence indicating serious violations of international human rights and humanitarian law were committed by Israel during the Gaza conflict, and that Israel committed actions amounting to war crimes, and possibly crimes against humanity.

The report also concludes there is also evidence that Palestinian armed groups committed war crimes, as well as possibly crimes against humanity, in their repeated launching of rockets and mortars into Southern Israel.

More after I’ve had time to look at the report.

The Inevitable Attack on the Goldstone Commission

by Kevin Jon Heller

Although often critical of Israel, I have always been sympathetic to Israeli claims that the UN Human Rights Council has deliberately appointed individuals to investigate conditions in the Palestinian territories who were either actually biased against Israel or who at least could not avoid the appearance of bias.  I was completely opposed, for example, to the HRC’s decision to appoint Richard Falk a Special Rapporteur on “the situation of human rights in the Palestinian territories occupied since 1967.”

The Goldstone Commission, however, is a different kettle of fish entirely.  Justice Goldstone is, to put it mildly, one of the most eminent international lawyers in the world — a judge for nine years on the Constitutional Court of South Africa; the first Chief Prosecutor of the ad hoc Tribunals; a member of the international panel appointed by Argentina to investigate Nazi activity in the country since 1938; the chairperson of the international inquiry into Kosovo; and so on.  He is also Jewish and a trustee of Hebrew University in Israel.  So it is difficult to plausibly maintain that he is biased against Israel — particularly given that one of his first acts after being appointed by the HRC to investigate Operation Cast Lead was to publicly announce that he would not abide by HRC Res. S-9/1‘s indefensible request to limit the fact-finding mission to Israel’s war crimes, but would investigate Hamas’s war crimes, as well.

Unfortunately, that hasn’t stopped the Israeli government and groups that reject any and all criticism of Israel from attacking the Goldstone Commission:

Some 50 British and Canadian lawyers have signed a public letter protesting the presence of London School of Economics professor Christine Chinkin on the commission. The letter said her participation “necessarily compromises the integrity of this inquiry and its report.”

Chinkin signed a public letter in January that called Israel’s actions “war crimes.” This disqualified her from participating in an international panel investigating whether Israel had, in fact, committed war crimes, the lawyers contended.

Goldstone has rejected calls for Chinkin to step down.

“The letter in question also condemned the firing of rockets by Hamas into Israel and suicide bombings, which it said were also war crimes,” he noted in an interview with The Jerusalem Post in July.


Beyond the question of Chinkin’s membership in the four-person panel, the Israeli government has said it views the commission as a fig leaf for an anti-Israel campaign in the Human Rights Council.

The commission’s conclusions were decided ahead of time and were intended to offer legal grounds for an international effort to sue Israeli officials in the International Criminal Court, officials have repeatedly complained in recent weeks.

These are tired and predictable attacks…

Welcome to the Blogosphere Adjudicating Europe

by Duncan Hollis

Adjudicating Europe, a new blog dedicated to EU law, has just launched.  Here’s how the editors describe it:

EU Law, despite its expansion and maturity, has not yet developed a comparable blogsphere of its own. Languages, the vastness of its scope, or a tendency to work and discuss inside national communities, have probably influenced this lack of blogging culture among EU lawyers.

Adjucating Europe is an initiative led by a group of academics and practitioners specialized in EU Law, with the aim of filling this gap in the current European landscape. Our aim is to stimulate discussion on issues of relevance for EU Law, with a particular attention to judicial developments. Our main focus will obviously rest on the European Court of Justice’s case law. However, EU Law is not only the product of European Institutions, but also of national authorities, and mostly national courts. We intend to follow and ignite interest in the decisions rendered by national courts with relevance for EU Law. When necessary, decisions of international courts or of non-member States will also be commented, but with our eyes always set on EU Law, its developments and challenges.

I like the concept although I’m not sure I agree that there’s no EU blogging out there (I’ve always enjoyed the EU Law Blog). The editors do promise “very opinionated comments” on the latest judicial developments relating to EU law, suggesting its going to be an enjoyable blog to read. That said, I’m not a fan of anonymous blogging, and Adjudicating Europe is noticeably silent as to how many or which “academics and practitioners” are running the site. Of course, I  understand that anonymity is viewed by some as one benefit of blogging (and maybe especially so for practitioners).  Still, to the extent blogs offer academic commentary, I’ve always preferred it when bloggers identify themselves.  

In any case, there’s certainly room for more EU-related blogging. On that front, I’m more than happy to welcome Adjudicating Europe to the blogosphere.

The Uncertain Foundations of Human Rights

by Roger Alford

1. All human beings are born free and equal in dignity and rights.They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

Universal Declaration of Human Rights (1948)

It is a curious feature of international human rights that we are reluctant to speak about foundations. As Jacques Maritain put it with respect to the UDHR, “the nations should and could reach practical agreement on basic principles of human rights without achieving a consensus on their foundations.” As discussed here, the early drafts of the UDHR included references to “endowed by nature” and that “all human beings are created in the image and likeness of God.” Had such language remained in the Universal Declaration it would have been in keeping with other great historical declarations, including the Declaration of Independence (1776) and the Declarations of the Rights of Man (1789). But such language was removed upon the recommendation of the Chinese delegate, P.C. Chang, who insisted that a truly universal declaration should not import ideals of the Christian West, any more than it should import Chinese ideals. So they bracketed the question in the UDHR and sixty years on we continue to bracket it.

This weekend I was in Princeton for a two-day colloquium on foundational questions of human rights norms. The colloquium is sponsored by the Princeton Center for Theological Inquiry, and includes an eclectic group of theologians (Robin Lovin, Esther Reed, David Gushee, William Storrar), legal philosophers (Jeremy Waldron, Amanda Perreau-Saussine), and international law scholars (Mary-Ellen O’Connell, Nick Grief, Roger Alford). One of the fundamental questions considered was whether modern notions of human dignity have their origins in Judeo-Christian understandings of imago Dei–the idea that all humans are made in the likeness and image of God.

On the one hand it is appealing to reach such a conclusion, particularly if one takes an historical approach to argue that the doctrine of human dignity has its roots in the Western Enlightenment tradition, including the Judeo-Christian tradition from which it was born. On the other hand, such an approach is problematic because one can legitimately object to making universal claims grounded on such particularized foundations.

Another approach is to suggest that the positive law is an alternative foundation for a universal norm such as human dignity, in that positive law reflects principles grounded in fundamental rights. Under this approach, one can determine what is foundational by examining what is uniformly reflected in ordered societies. The existing legal architecture is an image of the philosophical foundations.

A third approach, and one that I find particularly appealing at an abstract level, is what one participant described as the German theory of begründungsoffen, the idea that an ethical concept can be justified by different religious and intellectual traditions. No one perspective can claim to be the only or ultimate justification, but each foundation nonetheless provides a plausible justification. The Declaration of Independence, for example, divined the endowment of human rights in “Laws of Nature and of Nature’s God.” The Declaration of the Rights of Man articulated consequentialist arguments that “contempt of the rights of man are the sole cause of public calamities and of the corruption of governments.”

I left the discussion at Princeton convinced that there is a tremendous amount of philosophical, religious, and historical work that should be done to address these foundational questions. It is a feature of the current state of international scholarship that philosophers are not well versed in international law, and international law scholars are not comfortable addressing fundamental philosophical or religious meta-questions. We throw around terms like jus cogens, universal jurisdiction, and obligatio erga omnes without serious philosophical reflection. Meanwhile, legal philosophers imagine utopian societies without attempting to justify or even explain the international society in which they live.

Ohlin on the Torture Lawyers

by Kevin Jon Heller

My friend Jens Ohlin, who teaches at Cornell, has posted an important new essay on SSRN, “The Torture Lawyers.”  Here is the abstract of the essay, which is forthcoming in the Harvard International Law Journal:

One of the longest shadows cast by the Bush Administration’s War on Terror involves the fate of the torture lawyers who authored or signed memoranda approving the use of torture or enhanced interrogation techniques against detainees. Should they face professional sanction or even prosecution for their involvement? The following article suggests that their fate implicates some of the deepest questions of criminal law theory and that resolution of the debate requires a fundamental reorientation of the most important areas of justifications and excuses. First, the debate about torture has been overly focused on justifications for torture. This can be explained in part by a general confusion in U.S. law over the necessity defense. Second, this Article therefore argues that necessity, when properly understood, constitutes two separate defenses, one a justification and the other an excuse, each with its own standard. The necessity justification does not apply to government agents who tortured detainees, though necessity as an excuse might apply under certain conditions. However, excused necessity – like all excuses – does not generate a corresponding exculpation for accomplices, like the torture lawyers, who might be said to have aided and abetted the principal perpetrators. Third, the Article questions the usual assumption of lawyers that they are only liable as accomplices if they supported their client’s criminality through frivolous legal arguments, though even under this standard the torture lawyers might face accomplice liability for some of their arguments. Finally, commentators are wrong that such prosecutions would be unprecedented. The United States itself prosecuted Nazi officials at Nuremberg for their failure to properly advise the Reich that their conduct violated international law.

It’s always great to see a scholar focus on the theoretical issues involved in the torture debate, instead of on the politics.  And Jens is a gifted comparative criminal law scholar, to say the least.

As Larry Solum would say, highly recommended!

Domestic Political Coalitions and IL Compliance

by Duncan Hollis

Joel Trachtman, whose book with my colleague Jeff Dunoff on Ruling the World is just out, also has a new paper on the relationship of domestic political coalitions and compliance with international law.  Of course, compliance theory has taken a strong hold in international law (and international relations) scholarship of late.  For the most part, however, that work has had a constructivist foundation (and here I’m thinking of the Chayes’ New Sovereignty book along with work by Harold Koh as well as Derek Jinks and Ryan Goodman).  Trachtman, in contrast, takes on compliance within a rationalist framework.  Unlike recent rationalist work that focuses on unpacking reputation and asking if it’s the driver for state compliance with international law, however, Trachtman’s focus is different; he’s assessing compliance via domestic political decision-making.  Here’s the abstract:

The cause of compliance with international law is a domestic political decision to engage in the behavior that constitutes compliance. This article explains the importance of the interdependence between domestic politics and foreign politics in determining compliance. International legal commitments allow the formation of coalitions between those who will benefit by their own state’s compliance with the international legal rule in question, and those who will benefit from other states’ compliance with the international legal rule. This theory is based on established approaches to international relations in the political science literature, in particular two-level game theory associated with Robert Putnam and the “second image reversed” approach associated with Peter Gourevitch. The two extensions of this approach made in this article, (i) from international relations more broadly to international law, and (ii) from adherence to compliance, raise some questions, and bear some important fruit. These extensions help to illuminate the problem of compliance. The theory proposed here subsumes other theories of compliance and provides a highly plausible set of assumptions about the circumstances under which we may expect states to comply with international law.

Photo of the Day*

by Kevin Jon Heller

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* Ed Swaine pointed out to me that the photo I posted earlier might be a fake.  Thanks, Ed!

The ICC’s Preliminary Investigation in Afghanistan (Updated)

by Kevin Jon Heller

I don’t have any deeper insight into the situation than Ken, but there certainly has been pressure on the Prosecutor to investigate Afghanistan for some time — both because it’s not in Africa and because of US/NATO involvement in the armed conflict there.  It is important to stress, though, that the OTP has not formally opened an investigation; it is simply collecting information in order to determine whether a formal investigation is warranted — and has been since 2008.  Moreover, absent a referral from a State Party, the Pre-Trial Chamber would have to authorize the OTP to open a formal investigation.

In terms of substantive crimes, I agree with Ken that it is very unlikely the OTP would prosecute attacks that caused excessive collateral damage.  As I have explained in an essay that focuses on war crimes involving environmental damage but is equally applicable to civilian damage — it’s the same Article in the Rome Statute, Art. 8(2)(b)(iv) — a military commander is only responsible for an objectively excessive attack if he subjectively concluded, prior to the attack, that it would be clearly excessive.  (“In the knowledge that…”)  That is very unlikely, to say the least.

Note also that the other violations of IHL that Ken mentions — such as the failure to warn or the failure to distinguish in and of itself — are not war crimes under the Rome Statute.

What, then, would the OTP prosecute?  I imagine it would focus on the Taliban’s intentional crimes against civilians, which have been very well documented by those terrorist-loving NGOs Human Rights Watch and Amnesty International; similar crimes committed by Afghani government officials who used to be warlords; and — perhaps — the systematic torture committed by US and NATO soldiers at Bagram and elsewhere in Afghanistan.  Prosecutions in the final category would obviously be very politically charged, but they would also be richly deserved.

UPDATE: As I was researching my response to New Stream Dream’s questions, I realized that Afghanistan has a “bilateral immunity” agreement with the US.  If that agreement is valid, Article 98 of the Rome Statute would recognize Afghanistan’s right to not turn a US citizen over to the ICC.  Whether such agreements are valid, however, remains to be seen; many States — 24 of the 29 NATO countries, for example, including the UK, France, and Germany — believe that they are inconsistent with the object and purpose of the Rome Statute, at least insofar as they post-date a State’s ratification of the Rome Statute.  The issue is particularly difficult in the case of Afghanistan: although its Article 98 agreement was signed prior to ratification — agreement signed in September 2002; Rome Statute ratified in February 2003 — that agreement is an executive agreement, not a ratified treaty.  I am not an expert in such things, but I would think that the ICC would be somewhat less likely to recognize the former than the latter.  Readers?

UPDATE 2: Dapo Akande has a must-read post on US/NATO targeting of Afghan drug traffickers at EJIL: Talk!.

The Australian Research Council’s Puzzling Ranking of International Law Journals

by Kevin Jon Heller

My former colleague and current friend, John Ip, has an interesting post at Concurring Opinions discussing his reaction to the Australian Research Council’s ranking of law reviews.  As he notes, the original version of the list was both absurd and US-centric, awarding the Modern Law Review a B and the Cambridge Law Review a C, while giving the Connecticut Law Review an A* (along with, more justifiably, the Harvard Law Review and the Yale Law Journal).  The rankings provoked an immediate outcry from Australian legal scholars, leading the ARC to solicit academic input and revise the rankings.  The new rankings are definitely better, but they are still puzzling in terms of international law journals.  Here are the ones from A*-B:

A* Journals

  • AJIL
  • Harvard Journal of International Law
  • Michigan Journal of International Law
  • NYU Journal of International Law and Politics
  • Yale Journal of International Law

A Journals

  • Columbia Journal of Transnational Law
  • EJIL
  • Georgetown Journal of International Law
  • Leiden Journal of International Law
  • Nordic Journal of International Law
  • Stanford Journal of International Law
  • Virginia Journal of International Law
  • Wisconsin International Law Journal
  • Vanderbilt Journal of Transnational Law

B Journals

  • American University International Law Review
  • Berkeley Journal of International Law
  • Boston University International Law Journal
  • Case Western Reserve Journal of International Law
  • Chicago Journal of International Law
  • Chinese Journal of International Law
  • Cornell International Law Journal
  • Denver Journal of International Law and Policy
  • Fordham International Law Journal
  • George Washington International Law Review
  • Melbourne Journal of International Law
  • Duke Journal of Comparative and International Law
  • Emory International Law Review
  • Texas International Law Journal
  • UCLA Journal of International Law and Foreign Affairs
  • University of Pennsylvania Journal of International Law

No two international law scholars would rank journals in the same way, but there still seem to be a few obvious problems with this list…

ICC’s Ocampo Indicates Probe Underway into NATO Actions in Afghanistan

by Kenneth Anderson

The Wall Street Journal reports today that the prosecutor’s office of the International Criminal Court has begun opening investigations into allegations of war crimes and crimes against humanity by NATO forces, including US forces, in Afghanistan.  The report said that the prosecutor said that it was also probing alleged violations by the Taliban.  (Joe Lauria, “Court Orders Probe of Afghanistan Attacks,” WSJ, September 10, 2009.)

The prosecutor said forces of the North Atlantic Treaty Organization — which include U.S. servicemen — could potentially become the target of an ICC prosecution, as the alleged crimes would have been committed in Afghanistan, which has joined the war-crimes court. However, every nation has the right to try its own citizens for the alleged crimes, and the ICC can step in only after determining a national court was unable or unwilling to pursue the case.

Adam Smith Replies to My Post About the IMT

by Kevin Jon Heller

Adam has kindly allowed me to post his response — which first appeared at Making Sense of Darfur — to my criticism of his claim that domestic trials or a TRC would likely have been better than the IMT.  Here it is, in full:

Neither truth commissions nor domestic trials are as black and white as Professor Heller’s critique of my comments seems to argue.

First, Professor Heller is concerned that a post-war German truth commission would have meant that the architects of the Nazi period would have been absolved after “the Allies…simply asked them to admit their sins.” However, an examination of truth commissions established throughout the world attests that “truth commission” is not synonymous with “amnesty.” There are numerous potential models, with the South African TRC a leading example. The TRC had broad discretion to grant amnesties to those who appeared before it, but only if they offered a “full confession,” and the crimes about which they spoke were “politically motivated” and not a “gross violation of human rights.” And, of course, truth commissions can be run alongside trials — as in Sierra Leone, East Timor, and Argentina. There is no reason to think that a truth commission in conjunction with a judicial process would not have worked at Nuremberg. Transitional justice need not be either/or.

Professor Heller also argues that the focus of a post-World War II truth commission would necessarily have been on the top Nazis whose crimes were already documented in detail. Thus, he posits, the commission would “have accomplished precisely nothing,” because no truth would have been revealed. Truth commissions, however, have rarely been focused exclusively on leadership. Rather, commissions have usually taken testimony from those lower down in the state hierarchy or even outside the government — those co-workers and neighbors (“willing executioners,” if you will), whose crimes helped make larger crimes possible but whose own delicts may indeed be unknown. For victims and survivors, having these unknowns revealed is hardly “nothing”…

More on State Department Staffing

by Deborah Pearlstein

As usual, Laura Rozen (now at Politico) is on top of the latest international law news at Foggy Bottom. Columbia Law Professor Sarah Cleveland has been appointed Counselor on International Law in the office of State Department Legal Advisor Harold Koh. According to an email circulated by the school’s dean announcing the appointment, Cleveland will “help develop the State Department’s position in U.S. litigation involving international and foreign relations law issues, including human rights cases in U.S. courts,” and (critically) help State, DOJ, and the White House coordinate on these issues. Professor Cleveland’s 2006 piece in the Yale Journal of International Law, “Our International Constitution,” is still the most comprehensive work I’ve seen on how to think about the relevance of international and foreign law to U.S. constitutional analysis. As with Harold Koh, she is superbly well qualified to take on what remains an extremely full plate of issues. Great news all around.

NATO, Virtual Worlds, and Real World Problems

by Chris Borgen

At the risk of being told again that I am writing in “literary Klingon,” I want to return to the issue of virtual worlds and their real world implications. This time, a virtual world is being considered as a way to assist in the management of an international organization, namely NATO. According to Danger Room:

NATO’s got a new plan for training up employees and running the alliance’s day-to-day business: create a virtual world.

That’s right: The organization is after software models that would simulate its real-world headquarters …, as well as NATO’s North American command center, the Headquarters Supreme Allied Command Transformation in Norfolk, Va. The 3D programs would be used for training purposes and meetings, and NATO hopes they’ll improve staff communication and productivity, while circumventing “the inhibitions to collaboration posed by physical distance and time zones.”

See also this post at CTLab. It’s an interesting idea that a virtual headquarters in cyberspace could be used to ease the coordination problems of an international organization.  On the one hand, this sounds like a really fancy version of conference calling, but I think NATO is hoping for something much more elaborate. Consider the following from Danger Room (emphasis added):

This isn’t the first time NATO has toyed with virtual training programs. In February, they requested a computerized replica of Afghanistan, complete with data on Afghan economics, politics and culture, to be used by war planners in decision-making considerations. And two years ago, the Navy asked for the same thing, but with Iraq as the targeted 3D nation.

Of course, mapping an entire country is a much bigger challenge than replicating a few command stations, but NATO’s still got lofty goals for the new training program. They want a world that’s physically realistic and real-time, and continues to run even when users aren’t “in-world.” Plus, each staffer will be represented with an avatar.

I am more sanguine about the use of virtual worlds as a means to aid workflow in a multinational organization than as an effective tool in politico-economic planning. While the first is essentially a complex communications technology, the second is actually a political model, as dependent on assumptions and interpretations as any other political analysis. These two uses of virtual worlds are thus quite different, one is largely content-neutral, the other is all about the content. In the latter case, the virtual world is likely to only work as well as our understanding of the real one.

NSA Intercepts Used in UK Terror Conviction

by Kenneth Anderson

Orin Kerr has an interesting post at Volokh noting a story reporting that NSA intercepts were used in the just announced conviction in the UK of terrorists in the liquid-mixing-chemicals case.  Orin is right in saying the story deserves more notice than it will probably get.  I found it particularly interesting that apparently a reason why the NSA finally signed off on the the use of the intercepts in court was because, according to Britain’s Channel 4 (emphasis added)

the agency didn’t want to tip off an alleged accomplice in Pakistan named Rashid Rauf that his e-mail was being monitored. U.S. intelligence agents said Rauf was Al Qaeda’s director of European operations at the time and that the bomb plot was being directed by Rauf and others in Pakistan.

The NSA later changed its mind and allowed the evidence to be introduced in the second trial, which was crucial to getting the jury conviction. Channel 4 suggests the NSA’s change of mind occurred after Rauf, a Briton born of Pakistani parents, was said to be killed last year by a U.S. drone missile that struck a house where he was staying in northern Pakistan.

Bernstein Slurs Another Member of Human Rights Watch (Updated)

by Kevin Jon Heller

I have been ignoring the latest salvos in David Bernstein’s lonely war against Human Rights Watch, because they have not purported to be anything other than character assassination.  But his latest effort to discredit Marc Garlasco, HRW’s Senior Military Analyst, is so beyond the pale of acceptable discourse that something needs to be said.  Here are the relevant paragraphs of the post:

Is Human Rights Watch’s Marc Garlasco A Nazi-Obsessed Collector?

Well, yes. But if you’re going to hire pro-Palestinian activists to run your Middle East division, why not throw in an avid collector of Nazi memorabilia (he even wrote a book, see below) to be your military investigator for good measure?

Snark aside, I understand there are people who collect Nazi memorabilia for innocuous reasons, and in Garalasco’s case, his grandfather served seven years in the Nazi military. Perhaps there’s not much more to it than that. But it’s still, to say the least, a rather odd hobby for someone hired to be a human rights organization’s point man on Israel issues.

This is vintage Bernstein: acknowledge that there are “innocuous reasons” for collecting Nazi memorabilia, but imply, without any evidence whatsoever — cue the scary classical music — that there might be more here than meets the eye…  In which case, of course, we can’t take seriously anything Galasco says about military operations in the Middle East, despite his background:

Marc spent seven years in the Pentagon as a senior intelligence analyst covering Iraq. His last position there was chief of high-value targeting during the Iraq war in 2003. Marc was on the Operation Desert Fox (Iraq) Battle Damage Assessment team in 1998, led a Pentagon Battle Damage Assessment team to Kosovo in 1999, and recommended thousands of aimpoints on hundreds of targets during operations in Iraq and Serbia.

As part of my life-long fascination with World War II — fascination born of the fact that the Nazis killed significant numbers of my extended family — I have always collected images and originals of Nazi propaganda posters.  I guess that means not only that I don’t believe Israel has a right to exist, but that I’m a Nazi sympathizer, as well.

UPDATE: Bernstein has posted HRW’s response to the ridiculous attacks on Gerlasco.  Please read it — and read Anderson’s comment to this post, as well, in which he points out the absurdity of implying that there is something suspicious about Gerlasco wearing a sweatshirt with the Iron Cross, given that it has been the official symbol of the Bundeswehr since 1956.  (And note that the modifed version of the Iron Cross used by the German Armed Forces is the version on Gerlasco’s sweatshirt.)

ADDENDUM:Bernstein adds that he thinks “it’s a rather strange obsession for a human rights investigator who spends much of his time investigating Israel for HRW.  Strange because human rights activists aren’t typically obsessed with collecting momentoes of Nazi war achievements.”  It’s actually not strange at all for someone who is dedicated to defending human rights to be interested in — and collect memorabilia associated with — individuals who are responsible for massive human-rights violations.  After all, numerous high-profile African-American entertainers and scholars collect racist memorabilia: Bill Cosby, Oprah Winfrey, Henry Louis Gates Jr., Julian Bond and others.  I guess, by Bernstein’s lights, we should be wondering — if not actually suggesting — whether, in fact, they are actually white supremacists.

UPDATE 2: Bernstein is back again, accusing me of “shilling” for HRW and being unethical for having forgot to mention — which I have over and over again on this blog — that I consulted with HRW on the Saddam trial.  It only seems fair to mention, then, that Bernstein’s criticisms of HRW have long been, and no doubt will continue to be, based on deliberate misrepresentations of HRW’s work, as I have documented time and again.  At least he got my institution and profession right this time!

The Reasonableness of Asserting Personal Jurisdiction in Human Rights Cases

by Roger Alford

The Ninth Circuit last week argued that it did not have personal jurisdiction over DaimlerChrysler Corporation AG because it did not have continuous and systematic contacts with the forum. The case of Bauman v. DaimlerChrysler AG arose out of the alleged kidnapping, detention and torture of Argentinian citizens in Argentina by Argentinian state security forces acting at the direction of Mercedes Benz Argentina. The plaintiffs sued the parent company, DaimlerChrysler AG, and the Ninth Circuit concluded that it lacked personal jurisdiction. Given the facts, this is not particularly surprising.

But what was surprising was the dissent by Judge Reinhardt, arguing that promoting international human rights was a state interest that should factor into a finding of personal jurisdiction. Reinhardt first concluded that DaimlerChrysler AG had minimum contacts in the forum through its American subsidiary. He then examined whether it was reasonable to assert jurisdiction based on seven factors, including “the state’s interest in adjudicating the suit.” Here is the essence of Reinhardt’s conclusion:

[A]lthough the events at issue did not take place in California and although the plaintiffs are not California residents, the forum state does have a significant interest in adjudicating the suit. California partakes in “the shared interest of the several States in furthering fundamental substantive social policies….” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292 (1980). Here, as the claims are predicated upon the ATS and TVPA, that policy is providing a forum for redress of violations of international law by aliens outside our borders who have enough connections with the United States to be brought to trial on our shores “a small but important step in the fulfillment of the ageless dream to free all people from brutal violence.” Filartiga v. Pena-Irala, 630 F.2d 876, 890 (2d Cir.1980). American federal courts-be they in California or any other state-have a strong interest in adjudicating and redressing international human rights abuses. See, e.g., Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 106 (2d Cir.2000) (holding, in the context of forum non conveniens, that the TVPA “has … communicated a pol-icy that such suits should not be facilely dismissed on the assumption that the ostensibly foreign contro-versy is not our business.”). In light of that important interest, this factor weighs in favor of the reasonableness of exercising personal jurisdiction.

This seems to be an odd argument for the reasonableness of asserting personal jurisdiction. The cited cases, Filartiga and Wiwa, expressed the state interest in the context of forum non conveniens, where the court is determining whether a case is better suited for resolution in the United States or a foreign jurisdiction. Here, by contrast, the question is whether it is reasonable to assert personal jurisdiction over a defendant based, among other things, on the state’s interest. It seems attenuated to argue that this should be a factor in the balance of whether to assert personal jurisdiction. This is particularly so given that there is no other articulated state interest.

Reinhardt’s analysis stands in sharp contrast to the Supreme Court’s famous analysis of state interest in the foreign defendant case of Asahi v. Superior Court, where the Court held that

“[b]ecause the plaintiff is not a California resident, California’s legitimate interests in the dispute have considerably diminished. The Supreme Court of California argued that the State had an interest in ‘protecting its consumers by ensuring that foreign manufacturers comply with the state’s safety standards.’ The State Supreme Court’s definition of California’s interest, however, was overly broad.”

After concluding that there was a state interest in promoting international human rights, Reinhardt then goes on to analyze other factors, including “the most efficient judicial resolution of the dispute; the convenience and effectiveness of relief for the plaintiff; and the existence of an alternative forum.” Reinhardt analyzes alternative fora, particularly Germany and Argentina, and concludes that given the “substantial doubt as to the adequacy of either Germany or Argentina as an alternative forum, I would hold that on this record it is entirely reasonable and consistent with due process to exercise in personam jurisdiction over DCAG.”

Is it just me, or does his reasoning not sound like a dressed-up version of forum non conveniens in the guise of asserting personal jurisdiction?

Guest Post: Why the “Contextual Element” in All ICC Crimes?

by Kevin Jon Heller

The following post was written by my friend Mark Osiel (Iowa).  He hopes that readers will provide him feedback on the post, so don’t be shy!  Also make sure to check out Mark’s new book, “The End of Reciprocity: Terror, Torture, and the Law of War.”  It’s superb.

A curious feature of all the major international crimes is that, unlike domestic offenses, they’re defined to include a so-called “contextual” element.  It’s not entirely clear, though, what purpose the ICC drafters, in particular, intended this requirement to serve. Nor is it clear whether or not this purpose is essentially the same across the four offenses.

For war crimes, the defendant’s conduct must have some “nexus” to an armed conflict.  In crimes against humanity, his behavior must be part of “widespread or systematic” attack against a civilian population and reflect a “state or organizational policy.”  Until recent years, a nexus to armed conflict was also necessary. If accused of waging aggressive war, the defendant and his acts must be linked to a state’s policy and official acts of aggression. For genocide, the contextual element would be the defendant’s knowledge of, and/or contribution to similar acts of genocide in the relevant political environment.  (The ICTY’s suggestion to the contrary in Jelisić is poorly reasoned and widely rejected.)

There’s a common intuition that, for all these crimes, no defendant’s acts or intentions could be properly understood and hence legally assessed in isolation from those of other people acting in some relevant relation to him — often kindred spirits, engaged in similarly reprehensible conduct. (There’s an exception here for war crimes that can be conducted by a single person, after all, irrespective of others’ like actions or support. Still, there can be no war crimes without a war, i.e., a context in which much violence surrounding the crime becomes lawful.)

This explanation for the law’s requirement of context is not entirely convincing, however, because the same intuition about shared responsibility already finds ample expression in the doctrinal requirements for modes of participation, e.g., joint criminal enterprise, command responsibility, etc…

The G-20 Meetings, Summarized

by Kenneth Anderson

So what resulted from the past few days of G-20 meetings of finance ministers?  And, particularly given the long-term conversation here at OJ about transnational networks and global governance, do the meetings offer any data point in that discussion?  (Warning: this post goes on for a while …)

IWPR on Victims in the Lubanga Case

by Kevin Jon Heller

Rachel Irwin of IWPR has published a typically excellent article on the role of victims in Lubanga.  (The article quotes me liberally, though, so you shouldn’t take my word for that.)  A taste:

A total of 99 victims represented by seven lawyers are participating in the Lubanga trial at the International Criminal Court, ICC. The lawyers are present in the courtroom each day, where they are able to question witnesses and put their clients’ views.

It is the first time that victims have been able to present their views and concerns before an international court.

“The landscape of international criminal justice has changed perhaps forever, because of the role of the victims,” said Lorraine Smith, who monitors the ICC for the International Bar Association, IBA.

Victims can apply to participate in trials at the ICC if they are able to prove a link to the crimes in the indictment. Some are also witnesses for the prosecution.

Analysts say they have shaped the Lubanga trial – the first to take place at the ICC – in ways large and small.

However, their most significant contribution so far was the application by their lawyers to add charges of sexual slavery and cruel and inhumane treatment to the indictment, just as the prosecution prepared to close its case this spring.

Later in the article, Lorraine Smith, who follows the ICC for the International Bar Association, responds to my criticism of the “recharacterization” of the facts by arguing that — in Irwin’s words — “the victims are simply exercising the rights they have been given, which include presenting their views and concerns to the court.”  That is a misleading statement, at best: nothing in the text or history of the Rome Statute indicates that the victim-participation provisions in Article 68 give victims the right to force the OTP to prosecute charges it declined to bring initially.  Presenting “views and concerns” is one thing; undermining prosecutorial independence — to say nothing of the fair-trial rights of the defendant — is another.

CIA Asks Justice to Investigate Leaks

by Kenneth Anderson

It’s not unusual, I gather (never having worked in government), for the CIA to ask DOJ prosecutors to investigate leaks involving the agency.  However, in the circumstances surrounding the current AG Holder decision to appoint a prosecutor to investigate CIA activities, it’s perhaps worth noting that the CIA has asked for an investigation into what it apparently regards as a potentially criminal leaking of its much-discussed program from shortly after 9-11 to go after Al Qaeda with targeted killing teams.  This is what Eli Lake and Sara Carter reported in a Friday, September 4, 2009 story in the Washington Times.

Besieged by leaks of several closely held secrets, the CIA has asked the Justice Department to examine what it regards as the criminal disclosure of a secret program to kill foreign terrorist leaders abroad, The Washington Times has learned.

Two U.S. intelligence officials, who spoke on the condition that they not be named because of the sensitivity of the case, said the leak investigation involved a program that CIA Director Leon E. Panetta told Congress about in June and that surfaced in news reports just a month later.

Lake is a highly-regarded national security reporter in DC, for those who don’t know his work ….

More Public International Law Course Discussion

by Kenneth Anderson

Over at Volokh, Michael Scharf and Jonathan Adler each weigh in.  Plus, see the comments to the various posts here at OJ, as well as Peggy’s earlier post on this subject at Prawfslawsblog.  And Julian’s earlier Prawfslawblog post, too.  (Most of the discussion, though not all, is more narrowly focused on the question of 1L international law courses.)

The Utility of International Law Courses — A Response to Posner

by Duncan Hollis

As Ken noted, Eric Posner has responded to my question on whether 1Ls should take international law with an emphatic “No!”  In fact (and perhaps not surprisingly given his scholarly positions) Eric’s not very keen on law students taking international law courses at all; he advises them to take statistics instead.  Eric does concede that international law belongs in the law school curriculum, and that students may take it if they “think it might be interesting.”  On the whole, however, he observes that:

There is no reason to take international law in any year unless you want to work as a lawyer in the State Department or certain obscure precincts of the Justice Department, hope to work for an international organization such as the United Nations or an international NGO with a legal agenda such as Human Rights Watch, or have an academic or intellectual interest in international law and international relations. If you are in any of these categories, wait till your second year. For most law students, who aspire to work in regular law firms, or in prosecutor’s offices and other government agencies outside the State Department, the chance that you will encounter the type of issue taught in a public international law course over the course of your career is close to zero.

There’s a threshold question lurking in this critique, of course, on whether a course’s utility to an aspiring lawyer turns on whether that lawyer will encounter the relevant issues in later practice.  If that’s the standard, it begs the question of why law schools spend so much time on constitutional law (especially separation of powers and federalism questions) with which only a relatively few practicing lawyers get to engage (or, why we continue to emphasize common law doctrines in an administrative state).  It seems more likely that utility-to-actual-practice is only a standard for including a course in the curriculum, rather than the standard; in other cases, we want students exposed to certain courses because it provides a shared foundation about the law for all in the profession; hence, everyone gets the joy of learning battery, efficient breach, and servitudes whether or not their practice ever involves torts, contracts, or property.  Similarly, if we’re to advise lawyers to take non-legal courses like statistics that are undoubtedly attractive to certain future employers, does that mean we should encourage other courses like Spanish, which are also of undoubted benefit to other areas of legal practice?    

In any case, assuming a course’s utility is a function of subsequent practice in the material covered by the course, does international law really have as small a footprint as Eric suggests?  Now, my own resume fits two of the career choices Eric says favor a foundational course in international law (i.e., State Dept. lawyer, academic interest in international law and international relations). But I actually got my start in international law in private practice at Steptoe & Johnson, and was one of a dozen or so young associates there doing so.  And, when I was at the State Department, I tended to engage on international law questions mostly with the Solicitor General’s Office and the Office of Legal Counsel, which I’m pretty sure were not the “obscure precincts” of DOJ to which Eric referred.  But perhaps my experiences in practice or with DOJ were exceptional?  I’d like to open the comments for others to weigh in on whether international law was useful to their subsequent careers.  In particular, I’d be interested to hear from those who “work in regular law firms, or in prosecutor’s offices and other government agencies,” recognizing that we already have among our readers a fair number of folks in jobs Eric concedes would benefit from having had international law.   For those in more traditional domestic practices, did having international law matter at all?  Did it give you any theories, doctrines, or skills that came up again in practice? 

Separately, I’d be interested to hear from other academics on Eric’s suggestions about the relative place of international law in the law school curriculum.  Eric views it as a “poorly attended” course and recent efforts to demarginalize it as “marketing gimmicks.”

Another Joint Degree Program at Melbourne Law School

by Kevin Jon Heller

I blogged last week about new JD/JD and JD/LLM programs that Melbourne has established with NYU Law School.  I now want to mention another exciting new joint degree program, this time with Oxford University’s Faculty of Law.  Melbourne Law School students who enroll in the program will be able to earn both a JD from Melbourne and a BCL — Bachelor of Civil Law, akin to an LLM — from Oxford.  Students will spend 2 1/2 years at Melbourne and one year at Oxford, earning both degrees in 3 1/2 years, one semester less than the two programs would normally require.  It’s a fantastic opportunity for our students, given that Oxford generally accepts only those applicants who have already earned a JD.

Again, I have to plug the students at Melbourne.  I find them a joy to teach — and others obviously agree.  We had tea this morning with the Dean of Oxford’s Faculty of Law, and he told us that the BCL program this year admitted more students from Melbourne than from any other law school in the world.  That’s pretty cool.

Eric Posner’s New Book Is Out

by Kenneth Anderson

The Perils of Global Legalism (University of Chicago 2009) is just out, I see, and my copy just arrived via the magic of Amazon one-click.  I read an early ms. draft, but am looking forward to reading the final version. This is yet another book from Eric that promises to provoke lots of people in the international law community, but which I find to be full of insights. I strongly recommend it. Once I’ve actually had a chance to read the final version, I will come back and post some more about it and, who knows, perhaps OJ should have a mini-symposium or some such. (While I am noting Eric-related things, he has a new comment up at Volokh commenting on Duncan’s earlier question here at OJ about 1Ls taking public international law, and to which he says an emphatic ‘no’.)  Here is the book description from Amazon:

The first months of the Obama administration have led to expectations, both in the United States and abroad, that in the coming years America will increasingly promote the international rule of law—a position that many believe is both ethically necessary and in the nation’s best interests.

With The Perils of Global Legalism, Eric A. Posner explains that such views demonstrate a dangerously naive tendency toward legalism—an idealistic belief that law can be effective even in the absence of legitimate institutions of governance. After tracing the historical roots of the concept, Posner carefully lays out the many illusions—such as universalism, sovereign equality, and the possibility of disinterested judgment by politically unaccountable officials—on which the legalistic view is founded. Drawing on such examples as NATO’s invasion of Serbia, attempts to ban the use of land mines, and the free-trade provisions of the WTO, Posner demonstrates throughout that the weaknesses of international law confound legalist ambitions—and that whatever their professed commitments, all nations stand ready to dispense with international agreements when it suits their short- or long-term interests.

Provocative and sure to be controversial, The Perils of Global Legalism will serve as a wake-up call for those who view global legalism as a panacea—and a reminder that international relations in a brutal world allow no room for illusions.

In the Flooded Zone

by Deborah Pearlstein

I was all set to zone out this vacation when we happened to stroll passed an SUV featuring one bumper sticker (among others) announcing: “Waterboarding: Keep it safe, legal and rare.” Nothing like a little vacation motivation to make me peruse (at an admittedly slower pace) the wave of old OLC that came along with the 2004 CIA inspector general’s report and other CIA memos that documented in brutal detail exactly what we were doing to prisoners of that era.  While I haven’t come close to reading everything yet, I’d say the most remarkable memo I’ve encountered so far out of DOJ is one of far more recent vintage: a July 20, 2007 from then Principal Deputy Assistant Attorney General Steven Bradbury to John Rizzo, Acting CIA General Counsel.

Pat Buchanan: If Terrorists Take Over, It’s World War II’s Fault (UPDATED)

by Kevin Jon Heller

David Bernstein and I agree about one thing: Pat Buchanan is a very stupid man.

But if Hitler was out to conquer the world — Britain, Africa, the Middle East, the United States, Canada, South America, India, Asia, Australia — why did he spend three years building that hugely expensive Siegfried Line to protect Germany from France? Why did he start the war with no surface fleet, no troop transports and only 29 oceangoing submarines? How do you conquer the world with a navy that can’t get out of the Baltic Sea?

If Hitler wanted the world, why did he not build strategic bombers, instead of two-engine Dorniers and Heinkels that could not even reach Britain from Germany?

Why did he let the British army go at Dunkirk?

Why did he offer the British peace, twice, after Poland fell, and again after France fell?

Why, when Paris fell, did Hitler not demand the French fleet, as the Allies demanded and got the Kaiser’s fleet? Why did he not demand bases in French-controlled Syria to attack Suez? Why did he beg Benito Mussolini not to attack Greece?

Because Hitler wanted to end the war in 1940, almost two years before the trains began to roll to the camps.

Hitler had never wanted war with Poland, but an alliance with Poland such as he had with Francisco Franco’s Spain, Mussolini’s Italy, Miklos Horthy’s Hungary and Father Jozef Tiso’s Slovakia.

Indeed, why would he want war when, by 1939, he was surrounded by allied, friendly or neutral neighbors, save France. And he had written off Alsace, because reconquering Alsace meant war with France, and that meant war with Britain, whose empire he admired and whom he had always sought as an ally.

As of March 1939, Hitler did not even have a border with Russia. How then could he invade Russia?

Winston Churchill was right when he called it “The Unnecessary War” — the war that may yet prove the mortal blow to our civilization.

Get that?  The Holocaust is our fault, because we didn’t let Hitler have France.  Priceless.

Not a single commenter to David’s post at Volokh Conspiracy — yes, he’s David when I agree with him, Bernstein when I don’t — has defended Buchanan.  I agree with the first comment: “Long story short: it’s guys like this that give American conservatives a bad name.”

UPDATE: MSNBC has removed the editorial from its website.  Now if it would only remove Buchanan from its roster of pundits.  Why it believes a pro-Nazi anti-Semite like Buchanan deserves a national platform is beyond me.

How Not to Defend Transitional Justice Mechanisms

by Kevin Jon Heller

The blog Making Sense of Darfur has been hosting a symposium on Adam M. Smith’s book After Genocide: Bringing the Devil to Justice, in which the author argues — oversimplifying only slightly — that international criminal trials are always inferior to domestic trials and non-punitive accountability mechanisms.  I have neither the time nor the inclination to address the book’s claims at length; interested readers should take a look at the critiques offered by Sarah Nouwen, Sadia al Imam, and Bridget Conley-Zilkic.  I just want to highlight a claim that the author made about the IMT in his response to those critiques — a response that is illustrative of what happens when someone is so reflexively hostile to international criminal justice that he or she loses all perspective on complicated historical events:

I imagine that for many survivors and descendants of survivors, the “idea of Nuremberg” still provides this comfort, which is certainly a worthwhile outcome.  The question (again) is what could have been the outcome had a different process been chosen?  Perhaps domestic trials?  Perhaps a truth commission?  The same comfort may have been achieved, but at a lower cost and with a greater impact on the German people, and perhaps also on survivors and descendants of victims.

Domestic trials?  Presided over by whom?  By the one — yes, one — judge that refused to go along with the Nazis’ systematic persecution of Jews, Gypsies, Poles, etc?  Prosecuted by whom?  By the prosecutors of the Special and People’s Courts, the defendants in the Justice Case?  Perhaps the author should read Ingo Muller’s seminal book Hitler’s Justice before suggesting that domestic trials would have been better than the IMT and the subsequent trials. And then he should take a look at what happened when the Allies allowed Germany to hold domestic trials of war criminals after World War I, which was an unmitigated disaster.

As for a TRC — really?  It would have been much better if, instead of prosecuting and convicting Goering, Seyss-Inquart, Streicher, Frank, etc., the Allies had simply asked them to admit their sins in exchange for amnesty?  The Nazis relentlessly documented their atrocities, and they were not exactly shy when it came to discussing those atrocities under oath.  (Recall Eichmann boasting about sending 2,000,000 Jews to their deaths.)  So a TRC would have accomplished precisely nothing — other than to ensure that the architects of the Holocaust escaped accountability entirely.

This is the cult of transitional justice on full display.  One of the critics mentioned above claims that the author “romanticizes” domestic solutions.  That’s something of an understatement — “uncritically valorizes” them is more accurate.