Archive for
November, 2009

Lord Goldsmith told Blair Invading Iraq Was Illegal

by Kevin Jon Heller

Americans who defend the legality of the invasion of Iraq almost invariably point to the fact that Britain’s Attorney General, Lord Goldsmith, also approved the invasion.  That argument has always been questionable; rumours have long circulated that Lord Goldsmith did not believe that the invasion was legal, but was pressured by Downing Street into approving it anyway.

According to an explosive new report the by Daily Mail, hardly a lefty newspaper, that is exactly what happened.  And there’s even written proof that Lord Goldsmith told Blair that invading Iraq would be illegal:

The Mail on Sunday can disclose that Attorney General Lord Goldsmith wrote the letter to Mr Blair in July 2002 – a full eight months before the war – telling him that deposing Saddam Hussein was a blatant breach of international law.

It was intended to make Mr. Blair call off the invasion, but he ignored it.  Instead, a panicking Mr Blair issued instructions to gag Lord Goldsmith, banned him from attending cabinet meetings and ordered a cover-up to stop the public finding out.

He even concealed the bombshell information from his own Cabinet, fearing it would spark an anti-war revolt…

Council on Foreign Relations Publishes “Public Opinion on Global Issues”

by Peggy McGuinness

The just-released CFR web publication “Public Opinion on Global Issues” offers one-stop shopping for those looking for public opinion surveys across a range of transnational policy issues.  The overview explains how CFR and the Univ. of Maryland consolidated all publicly available opinion polls and provides a few significant findings:

The international community confronts a daunting array of transnational threats and challenges that no country can hope to resolve alone. As political leaders in the United States and abroad grapple with this global agenda and seek to forge international partnerships in addressing it, for a variety of reasons they must consider the opinions of those from whom they represent. But what, precisely, do citizens in the United States and abroad think about such matters?

To answer this question, the International Institutions and Global Governance program has produced Public Opinion on Global Issues, a comprehensive digest of existing polling data on U.S. and global public attitudes on the world’s most pressing challenges — and the institutions designed to address them. Developed in partnership with the Program on International Policy Attitudes at the University of Maryland, the digest consolidates global and U.S. public opinion across ten major issue areas: elements of world order, international institutions, violent conflict, terrorism, nuclear proliferation, climate change, energy security, the global economy, economic development, and human rights.

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What We Found

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Views on World Order: Publics around the world — including in the United States — are strongly internationalist in orientation. They believe that global challenges are simply too complex and daunting to be addressed by unilateral or even regional means. In every country polled, most people support a global system based on the rule of law, international treaties, and robust multilateral institutions. They believe their own government is obliged to abide by international law, even when doing so is at odds with its perceived national interest. Large majorities, including among Americans, reject a hegemonic role for the United States, but do want the United States to participate in multilateral efforts to address international issues.

The United Nations: Globally, national publics believe that the United Nations plays a positive international role, although they are often disappointed by the UN’s actual performance and support its reform. Majorities in most countries — including the United States — regard the UN Security Council as the premier institution for conferring legitimacy on the use of armed force. Publics around the world believe the UN Security Council has not only the right but also the responsibility to prevent or end gross human rights abuses such as genocide. Majorities or pluralities in all nations polled want the UN to actively promote human rights — and they reject the argument that this would be improper interference in sovereign affairs. There is strong popular support for adding new permanent members to the Security Council and (even among publics of most permanent members) for giving the Council the power to override a veto by a permanent member.

I have been a past user and fan of the U Maryland PIPA data sets, and this comprehensive digest is very useful indeed (and the kind of thing CFR should be doing more of to reach out to students and academics).  Click here, for example, to see a summary of global opinion on climate change, and here, to see U.S. public opinion on climate change.

Congratulations to Vicki Jackson on her Constitutional Comparativism Book

by Kenneth Anderson

Several times in the last couple of years I’ve had the privilege of appearing on panels with Georgetown law professor Vicki Jackson, talking about constitutional comparativism.  She is always a pleasure to listen to and engage with on this topic.  It’s been a hot topic in the last few years, and several OJ’ers have weighed in, including Roger and me.  So I am delighted to note that her new book, Constitutional Engagement in a Transnational Era (Oxford) is just out, and I look forward to reading it.  There is a discussion and reception for the book tomorrow, December 1, and I take it that through some email list glitches, numbers of people (including me) did not get alerted.  Although, alas, I have to teach last week of classes during the event tomorrow, I don’t think Vicki would mind my announcing the event – there’s a rsvp email at the bottom:

Tuesday, December 1, starting at 3:30, on the 12th floor of the Gewirz center on the Georgetown Law campus, 600 New Jersey Ave., N.W., Washington D.C.

The book party will have short comments on the book by three speakers: Dean Alex Aleinikoff, Professor Carlos Vazquez, both of Georgetown, and Professor David Fontana, of GW.  I will then respond briefly to their comments, and then there will be a reception.

RSVP and queries, Erin Donovan, GT Special Events.

Copenhagen and Collective Action

by Kenneth Anderson

Let me leave aside for the moment all the leaked memos and stuff.  I have a question about Copenhagen that predates all of that.  I’m not being snarky – taking on assumption all the climate problems as they have been stated, I do not understand how this exercise manages to overcome the collective action failure problems that have been encountered in Kyoto and every other exercise in this area.  Extremely diffuse damage from a multitude of players, now and into the future; diffuse set of actors who must act in a coordinated way; individual states being tasked to take sacrificial actions that in the short and medium term at least are bad for their individual economies and their voting citizens; consistent record of failures not just in the nature of the promises made, but in their non-fulfillment even as they stand … on what grounds does anyone plausibly think that Copenhagen might produce a different outcome?

I’m not asking about climate science here, I’m asking about collective action problems in international law and policy.  How is this exercise different from previous failures?  Even if new states are persuaded to say yes on paper, on what grounds does anyone think that these commitments will be fulfilled this time, particularly given the record of Kyoto?  The article linked here from the AP talks about “momentum building” and “legally binding agreements.” What does that mean and how?  Legally binding to prevent defection down the road, how?  This is not an attempt to get snarky, but complete puzzlement on my part.  How is this different from earlier attempts?

The one thing that might be different, so far as I can tell, is that the meeting might make moves toward the global fund for the developing world.  Which would suggest, however, that the world has largely accepted that it won’t really do anything about the problem on the front end, but might do things to address concrete damage in the developing world.  Or perhaps will simply hand out the money as a sort of buy-off and global welfare transfer payment.  That seems to me to be the most likely outcome of Copenhagen, at most, and maybe or maybe not an agreement that, on the basis of past experience, will be invoked in op-ed pages and law review articles and politely sidelined as discussions get underway for the next round of agreements.

But there are lots of very smart people working on this issue in international law who, obviously, have thought long and hard about these problems.  How are the collective action problems believed to be overcome in this round?

(Update: And one of those very smart people responds!  Noah Sachs puts up a note responding to the VC version, over at Prawfsblawg.  Thanks Noah!)

Registry Restores Funding to Defence Team

by Kevin Jon Heller

I criticize the Registry regularly, so it’s important to acknowledge when it does something right.  I blogged a couple of weeks ago about the Registry’s indefensible position that Dr. Karadzic’s trial had not started, so the defence team was not entitled to any funding until the trial “began” in March.  The Registry has now reversed its decision and approved 250 hours per month of funding for the defence team during the hiatus.  The defence team has thus abandoned its boycott and is again working on Dr. Karadzic’s behalf.

Where Is the United States on the Ottawa Landmines Ban Convention?

by Kenneth Anderson

Where is the Obama administration on the Ottawa Landmines Ban Convention?  After some clarifications, it appears that the US is conducting a “broad” review of antipersonnel landmine policy and the Ottawa Convention, while maintaining the previous Bush administration stance on an “interim” basis.  This Reuter’s story, in the Washington Post, gives some of the ins and outs.  Meanwhile, the Cartagena review conference on the Ottawa Convention opens; GenevaLunch blog has details.  From the WP story:

A review of U.S. landmines policy is ongoing and will take awhile to complete, a State Department spokesman said on Wednesday, clarifying an earlier comment that the Obama administration had concluded it needed the weapons.

“The administration is committed to a comprehensive review of its landmines policy. That review is still ongoing,” spokesman Ian Kelly said in a statement.

Speaking ahead of a review conference next weekend in Cartagena, Colombia, on the 10-year-old international Mine Ban Treaty, Kelly said the U.S. policy review was “going to take some time” and while it continued the current policy of declining to join the accord would remain in force.

This clarification followed an earlier briefing in which the Obama administration indicated that its review had concluded, to the contrary, that the US needed the weapons.  Following criticism by Senator Leahy, the new statement was issued:

Kelly had told a briefing on Tuesday the “administration undertook a policy review and we decided that our land mine policy remains in effect.”

“We determined that we would not be able to meet our national defense needs nor our security commitments to our friends and allies if we signed this convention,” he said.

Those comments had drawn fire from Senator Patrick Leahy, a Democrat who is a longtime advocate of the treaty, and expressions of concerns from anti-mine campaigners.

A U.S. official, speaking on condition of anonymity, said on Wednesday said the administration had conducted an interim review in light of the upcoming summit in Cartagena, and decided the old policy should remain in force so long as the broader review continued.

One of the interesting questions for international legal academics is what, in any direction, one should make of the fact that known landmine casualties worldwide a dozen or so years ago were on the order of 20,000 a year (I haven’t gone back to pull up the estimates, but these are in the general order, and good enough for this point; usual data source is Landmine Monitor).  Whereas last year, known casualties were listed as 5,197, according the International Campaign to Ban Landmines.  I would say that the decline is likely attributable to the reduced use of landmines and the stigma surrounding their use, on account of the treaty.  But one might question that, I suppose, and instead look to a general decline in warfare of the kind in which indiscriminate use of landmines is found (for various reasons, I don’t think that is causally right, but I won’t try to explain that here).

Much more importantly, however, even at 20,000 casualties a year, well, the US drunk driving fatality rate is somewhere around 40,000 a year.  In a world of 6,800,000,000 people, 5,197 is not even a tremor.  What would one say if one were to apply cost benefit analysis of, for example, the kind that John Mueller applies to terrorism risks (likelihood of being killed in a terrorism attack versus lightning strike, e.g.), to the money, time, efforts, etc., put into the landmines ban campaign?  Should it instead have gone into malaria or AIDS reduction?

I think the Mueller comparisons on terrorism are an unsophisticated-at-best way of approaching risk analysis and cost benefit analysis – the alternatives under comparison have to be genuine alternatives, not merely hypotheticals.  (I tried to explain this, and not very successfully, I’m afraid, in this paper on the assumptions underlying CBA in war on terror discussions.)  But if this method is tendentious in landmines analysis of whether the effort to ban mines was “worth it” for 5,000 or so casualties (casualities, note, not necessarily lives), and I agree it is, it is tendentious for the same reasons that it is in the case of terrorism-lightning comparisons.

(Update:  Liz raises an important issue in the comments – landmines on the Korean peninsula.  I’ll try to get back to this re Cartagena, but as a general matter, I talk about this in an article from a few years ago on the US military and the laws of war.)

(I have some other things to say re the Cartagena review conference, but I’ll hold them for another post.)

Regional Changes in World GDP

by Kenneth Anderson

Mark Perry has an interesting post, with a super-interesting graph, at his blog Carpe Diem, of long-run changes in regional share of global GDP, using historical data sets from Economic Research Service of the US Department of Agriculture.

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As Perry explains:

What might be surprising is that the U.S. share of world GDP has been relatively constant for the last 40 years, and is actually slightly higher in 2009 (26.7%) that it was in 1975 (26.3%). It’s also interesting that the EU15’s share of world GDP has declined from about 36% of world output in 1969 to only 27% in 2009.

He notes that this historical data set captures only about 91% of world GDP, particularly leaving out Canada.  And he adds:

World GDP (real) doubled between 1969 and 1990, and has increased by another 60% since then, so that world output in 2009 is more than three times greater than in 1969. We might mistakenly assume that the significant economic growth over the last 40 years in China, India and Brazil has somehow come “at the expense of economic growth in the U.S.” (based on the “fixed pie fallacy”) but the data suggest otherwise. Because of advances in technology, innovation, and significant improvements in U.S. productivity, America’s share of total world output has remained remarkably constant at a little more than 25%, despite the significant increases in output around the world, especially in Asia.

More on the Denial of Certification to Appeal (Updated)

by Kevin Jon Heller

According to news reports, the Trial Chamber justifies its refusal to certify appeal on the ground that it “considers the indictee’s motion to be unclear, because it is not clear which aspects of the decision he wants to appeal.”  In case you haven’t read our motion for yourself, here is what it says in para. 9, specifically citing to Seselj:

Dr. Karadzic cannot help but note that the Trial Chamber’s decision is flawed in several respects, including failing to support its conclusion, seemingly picked out of thin air, that a 3 1/2 month period would be adequate time for stand-by counsel to be prepared for trial in a case of this magnitude and complexity, and in its failure to direct the Registrar to provide him with the Rule 44 list from which he can select the standby counsel as required by Appeals Chamber jurisprudence.

Yep, that’s very unclear.

Even more ridiculous is the Trial Chamber’s claim that Dr. Karadzic “wrongly described the issue as ‘imposing’ or ‘assigning’ a counsel… however, in the case, the Chamber has still not imposed a counsel.”  Apparently, the Trial Chamber believes that the defence team doesn’t understand the difference between assigning stand-by counsel and appointing actual counsel.  That idea seems to be based on the title of Dr. Karadzic’s motion, “Application for certification to appeal decision on appointment of counsel and order on further trial proceedings” — after all, para. 9 of the motion clearly indicates that Dr. Karadzic is challenging the procedure used by the Registry to appoint “standby counsel.”  And why does the title of the motion refer to “appointment of counsel” instead of “appointment of stand-by counsel”?  Perhaps it’s because the Trial Chamber’s decision instructing the Registry to appoint stand-by counsel is entitled “Decision on Appointment of Counsel and Order on Further Trial Proceedings,” or because the Tribunal has entitled the Registry’s decision appointing Harvey as stand-by counsel “Decision by Registrar [re appointment of counsel].”  I guess that means the Trial Chamber doesn’t understand the difference between assigning stand-by counsel and appointing actual counsel either!

The appealed Trial Chamber decision did two things, and two things only: it instructed the Registry to appoint stand-by counsel, and it adjourned the trial until 1 March 2010 to allow stand-by counsel time to prepare.  Dr. Karadzic filed a motion requesting certification to appeal the Trial Chamber’s “decision on appointment of counsel and order on further trial proceedings” in which he argued (para. 9) that the Trial Chamber’s instruction to the Registry was inconsistent with binding Appeals Chamber jurisprudence and that the Trial Chamber did not adequately explain its choice of a 1 March 2010 trial date.  And now the Trial Chamber has the audacity to claim it cannot figure out what Dr. Karadzic is trying to appeal.

To say that the Trial Chamber has misread the request for certification to appeal is an understatement.  And people accuse Dr. Karadzic of being obtuse!

UPDATED: The Tribunal has now made the decision publicly available.  You can find it here.  It’s revealing that the Trial Chamber claims not to know what Dr. Karadzic wants to appeal, yet has no problem dismissing — almost completely without explanation, as I note in the comments below regarding the Rule 44 issue — the two conclusions that Dr. Karadzic challenged.

Blackwater Assassins Posing as Aid Workers

by Kevin Jon Heller

The Nation has just published an extensive article documenting the “secret war” Blackwater employees have been conducting in Pakistan.  The opening grafs:

At a covert forward operating base run by the US Joint Special Operations Command (JSOC) in the Pakistani port city of Karachi, members of an elite division of Blackwater are at the center of a secret program in which they plan targeted assassinations of suspected Taliban and Al Qaeda operatives, “snatch and grabs” of high-value targets and other sensitive action inside and outside Pakistan, an investigation by The Nation has found. The Blackwater operatives also assist in gathering intelligence and help run a secret US military drone bombing campaign that runs parallel to the well-documented CIA predator strikes, according to a well-placed source within the US military intelligence apparatus.

The source, who has worked on covert US military programs for years, including in Afghanistan and Pakistan, has direct knowledge of Blackwater’s involvement. He spoke to The Nation on condition of anonymity because the program is classified. The source said that the program is so “compartmentalized” that senior figures within the Obama administration and the US military chain of command may not be aware of its existence.

The entire article is disturbing, but I was particularly struck by the article’s claim that Blackwater assassins have been posing as aid workers in order to maximize their effectiveness:

According to the source, Blackwater has effectively marketed itself as a company whose operatives have “conducted lethal direct action missions and now, for a price, you can have your own planning cell. JSOC just ate that up,” he said, adding, “They have a sizable force in Pakistan–not for any nefarious purpose if you really want to look at it that way–but to support a legitimate contract that’s classified for JSOC.” Blackwater’s Pakistan JSOC contracts are secret and are therefore shielded from public oversight, he said. The source is not sure when the arrangement with JSOC began, but he says that a spin-off of Blackwater SELECT “was issued a no-bid contract for support to shooters for a JSOC Task Force and they kept extending it.” Some of the Blackwater personnel, he said, work undercover as aid workers. “Nobody even gives them a second thought.”

If this is true, the Blackwater employees are almost certainly engaged in acts of perfidy, defined by Article 37 of the First Additional Protocol as “inviting the confidence of an adversary to lead him to believe that he is entitled to, or is obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence.”  Feigning civilian status is a prototypical example of perfidy.

Blackwater’s pefidious acts could qualify as two different war crimes, depending on where, when, and against whom the assassinations were committed…

Welcome to the Blogosphere, War and Peace!

by Kevin Jon Heller

As I note in my post above, Change.org has launched an ambitious new blog, War and Peace.  A sampling of recent posts, to give readers a taste of what the blog — which obviously has a broad mandate! — covers: “IRA Splinter Faction Nostalgic for the Old Belfast”; “Hey, Russian Media, There Is No ‘Number War’ in Bosnia-Herzegovina”; “Is the Afghan Government Serious About Fighting Corruption? Are We?”

The blog is co-authored by Daniel J. Gerstle and Una Vera.  I don’t know Daniel, but I’ve been reading Una’s work for a long time.  She is, without question, one of the most knowledgeable and interesting bloggers I know, particularly when it comes to the Balkans and Afghanistan.

Read War and Peace!

Trial Chamber Denies Certification to Appeal Stand-By Counsel

by Kevin Jon Heller

Give the Trial Chamber credit, it has at least has stopped pretending that its decisions make any legal sense whatsoever:

It said on Monday that Karadzic’s appeal request was too vague and premature because at the time of his application, no counsel had been appointed to him.

“Granting the application now, and then potentially again on 1 March, 2010 … would hinder, rather than materially advance the proceedings,” the court said.

It’s true, stand-by counsel has not been appointed to actually represent Dr. Karadzic.  But that has absolutely nothing to do with Dr. Karadzic’s request for certification to appeal, which concerns the Registry’s failure to follow binding Appeals Chamber precedent for selecting stand-by counsel in the first place.  That request is neither vague nor premature — Seselj is clear on the relevant procedure, so unless the Appeals Chamber overrules that decision, new stand-by counsel must be appointed now.  Indeed, it would be in all of the parties’ interest to have new stand-by counsel appointed now, not in March, so that he or she could begin preparing for trial.

It is patently obvious what the Trial Chamber is trying to do.  By refusing, however unjustifiably, to deal with the Registry’s failure to follow Seselj, the Trial Chamber puts the Appeals Chamber in the unenviable position in March of either (1) granting Dr. Karadzic’s appeal and appointing new stand-by counsel whose need to prepare will delay the start of trial even further, or (2) overruling Seselj for no reason other than that it has become inconvenient. I think we all know which choice the Appeals Chamber would make.

Apparently, the Trial Chamber has adopted a new meta-rule for the Karadzic case: no legal argument by the defendant can succeed, no matter how meritorious, if it might hinder the trial. Could it be any clearer that the Completion Strategy is now the Trial Chamber’s only relevant concern?

Criminal Prosecutions and Another Kind of Precedent

by Tommy Crocker

Friday saw the former Attorney General, John Ashcroft, who helped orchestrate placing the supposed “worst of the worst” at Guantanamo, repeat the same two arguments others have made against federal trials of terrorism suspects:  they pose a risk of revealing key intelligence and they increase the risk of another terrorism attack.  The first argument has little traction in light of past experience in prosecuting terror trials, prosecutorial discretion in presenting evidence, and judicial administration of the trial.  The trial of Ahmed Khalfan Ghailani is instructive.  An increased risk of attack has also been repeated as an argument against terrorist detentions in the United States.  How would detaining or prosecuting terrorism suspects in the United States somehow increase the terror threat?  Is there any evidence of this?  Is the alternative to keep the detainees in Guantanamo, with the hope that terrorist groups might ignore the fact that they are detained by the United States?  Such a claim seems wildly implausible.  To the extent that U.S. detention practices are widely known, there seems to be no reason to think that  detentions and prosecutions at Guantanamo versus detentions in Illinois, for example, alter the risk that terrorists would target the U.S.  If the overall desire and capabilities of terrorists to strike U.S. targets would not change merely because of the location of detentions or prosecutions, perhaps it would alter the targeting of a potential attack.  This form of NIMBYism seems based on a highly speculative premise (and a dubious moral claim).  No doubt, fear is easily manipulated to motivate officials into avoiding even a speculative, and at best marginal, increased risk of attack.  But this kind of fear-mongering fails to present a good reason not to prosecute terrorist suspects in U.S. courts. 

If the arguments lack merit, why the orchestrated effort to repeat them? 

Continue Reading…

Ruth Wedgwood on Former Diplomats with Financial (Conflicts of?) Interest

by Kenneth Anderson

Ruth Wedgwood’s new column at Forbes.com takes up the uncomfortable question of Peter Galbraith and his financial dealings with regard to Kurdish autonomy, oilfields, and Galbraith’s consulting deal with a Norwegian company that could conceivably pay him somewhere up to $100 million.  That discussion is very important and fraught with issues – Galbraith has not been a US diplomat for many years, yet it is obvious that his importance to the transaction is not just that he once was a diplomat but that his credibility today straddles some weird line of public/private.  James Galbraith takes up his brother Peter’s defense in the comments.

There is unlikely to be any American statute or conflict rule that covers this situation, since it has been years since he was employed as a U.S. diplomat. He may become a wealthy man unlikely to slow down in his adventures abroad.

Yet there is a gnawing sense that by choosing to stake a private financial claim of this magnitude — in a triple play where he was publicly working for the Kurds, and yet privately working for the DNO oil company and himself — this savvy former diplomat could prejudice America’s role as a credible broker in diplomacy and reconstruction.

In this post, however, I want to point to the last third of the column, which shifts from Galbraith to the broader question and, in particular, the question of conflicts of interest involving former UN actors.

When Playing Call of Duty 4, Don’t Forget to Consult the Laws of War

by Julian Ku

I don’t know what I think about this report by two Switzerland-based NGOs analyzing a number of popular video games for their consistency with rules of international humanitarian law (h/t kotaku).  Apparently, many video games encourage blatant and unrepentant violations of the laws of war.

In the scenes, there seems to be no assessment of proportionality in the attacks realised in civilian areas and we do not know whether precautionary measures were taken to minimize civilian casualties and damage to civilian objects. However, in a real life situation, one is often confronted with similar circumstances: regular armed forces and irregular armed groups are very unlikely to give any information about the planning of the preparation of military operations to international organisations or human rights bodies. Without such information, it is difficult to establish that a military operation was not proportional, in particular whether the attacker took all the precautionary measures necessary to avoid, and in any event to minimize incidental loss or civilian life, injury to civilians and damage to civilian objects.

In addition to the extensive destruction, some of the scenes portray the members of “Bad Company” taking gold and “treasures” found in the civilian houses they have just destroyed. Upon obtaining them, the players get points. These actions amount to pillage, which is strictly prohibited under IHL and thus have also been labelled as “strong”. This illegal action is confirmed in one of the scenes where you can hear a member saying that “Pillaging is an old war tradition.” Pillage is considered as a war crime both in international and non- international armed conflicts.

There is something to this. Check out this photo from Call of Duty 4. Looks like a war crime to me. Do we need international law requiring video game makers to follow international law in their video games?  Sure, as long as this resulted in lucrative consulting gigs for law professors….

Bodansky on International Environmental Law

by Kevin Jon Heller

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My former colleague, current friend, and somewhat-regular OJ contributor Dan Bodansky has published The Art and Craft of International Environmental Law.  Here is Harvard University Press’s description of the book:

More on the Selection of Stand-By Counsel

by Kevin Jon Heller

It is becoming increasingly clear that the Registry made no attempt to comply with the Appeals Chamber’s decision in Seselj.  I have now learned that the Registry arranged for Dr. Karadzic to meet with five defence barristers, including Mr. Harvey.  Dr. Karadzic was then given a deadline to choose one.  Instead, citing Seselj, Dr. Karadzic asked for a copy of the Rule 44 list so that he could have a wider selection.  In particular, he wanted the opportunity to choose a barrister who was from Bosnia or Serbia — someone whom he could trust and who would more familiar with the events at issue in the trial.  The Registry refused and appointed Mr. Harvey.

I don’t think it would be appropriate for me to identify the four other defence barristers, even if they did agree to serve as stand-by counsel.  I note, though, that three of the four have — like Mr. Harvey — defended members of the KLA; one of the four used to be a prosecutor at the ICTY; and one of the four has defended a Bosnian Muslim.  Indeed, only two of the four have ever defended a Serb and only one of the four has exclusively defended Serbs.  (Why the Registry chose Mr. Harvey over the barrister on the list who has never defended a member of the KLA and who has exclusively defended Serbs is beyond me.  Both are non-Serbian, and their credentials are not substantially different.)

Let me be very clear: the fact that four of the five barristers have previously defended members of the KLA does not mean that they would be biased against Dr. Karadzic.  On the contrary, all four of the barristers have unimpeachable credentials.  And again, there is absolutely nothing wrong with a defence barrister representing individuals from different sides of a conflict.  In fact, I think that the willingness to do so is a mark of a barrister’s professionalism.  All that is irrelevant, however, to whether a barrister appointed as stand-by counsel will be able to build trust with his client.  From a pragmatic standpoint, it doesn’t matter why a defendant doesn’t trust stand-by counsel; all that matters is that, rightly or wrongly, he doesn’t.

The best solution, then, would have been the one endorsed by the Appeals Chamber in Seselj: allowing Dr. Karadzic to choose his own stand-by counsel.  The Registry obviously did not give him that opportunity.  Even worse, the Registry clearly did not even attempt to put together a list of defence barristers whom Dr. Karadzic might be inclined to trust.  Doing so would not have been difficult, given that the Rule 44 list includes more than 150 barristers, many of whom are Serbian or have represented only Serbian defendants.  Indeed, it is more than a little suspicious that four of the five barristers on the Registry’s hand-selected list have defended members of the KLA — after all, only eight of the 161 defendants at the ICTY, less than 5%, are Kosovar.

Coincidence?  You be the judge.

A Defense of Holder’s Decision to Try KSM in New York

by Julian Ku

James Comey and Jack Goldsmith provide here the best (although not completely convincing) defense of the decision to try KSM in New York.  I agree that the most defensible explanation is that military commissions remain constitutionally vulnerable, hence it makes sense to use the civilian courts for your most important cases. I don’t quite buy this, but I think this is the most sensible explanation of what seems otherwise a totally baffling decision.

A (Partially) Dissenting View on the US “Observing” the ICC Review Conference

by Kevin Jon Heller

When I critique the US’s refusal to join the ICC in my international criminal law class, I make sure to emphasize not only that the US has traditionally played a very positive role in ICL — from Nuremberg to the SCSL — but also that the Rome Statute would be considerably worse but for the input of the American representatives at PrepCom and the Rome Conference.  Like many others, therefore, I am encouraged by the US’s recent decision to observe the Review Conference in 2010.  I don’t expect the US to join the ICC in the near future (if ever).  But increased US engagement with the Court can have significant benefits for both parties.

That said, it is important to emphasize that the US’s new “Observer” status is not without its drawbacks.  The US has not abandoned its basic objections to the ICC — the independent prosecutor, automatic jurisdiction over crimes committed on the territory of a State Party, no formal Security Council control over the ICC’s docket, etc. — despite the fact that they are non-starters for the Assembly of States Parties (ASP). Insofar as it renews its objections at the Review Conference, therefore, US participation threatens to delay, and perhaps actually impede, negotiations.

Indeed, the US is already up to its old tricks.  Consider what Stephen Rapp, the US Ambassador at Large for War Crimes Issues, had to say about the crime of aggression in his recent address to the ASP — his only substantive comment…

World Cup Football Creates a Diplomatic Crisis

by Julian Ku

OK, so France wins on a bad call by a referee.  And people in Ireland are mad.  And the Irish Prime Minister even brought it up with French President Sarkozy at a recent EU meeting.  But nothing quite captures the importance of soccer and the World Cup then riots, clashes, and the recall of ambassadors after Egypt defeated Algeria in a World Cup qualifier.  Maybe it’s a good thing that Americans could care less about the World Cup.

Cairo, Egypt (CNN) — Hundreds of angry demonstrators in Egypt’s capital fought with police near the Algerian Embassy early Friday, the Interior Ministry said.

The clashes in Cairo stem from tensions over Algeria’s victory over Egypt in a World Cup qualifier soccer match and earlier fights between soccer fans in the North African countries.

The ministry said 39 security forces were wounded in the clashes, and cars and stores were damaged in Zamalek, an island in Cairo on the Nile River. At present, there is a strong security presence in the area with truckloads of riot police and more than 1,000 security forces.

A series of clashes between Egyptian and Algerian soccer fans also has led to a diplomatic row between the two North African countries, with Egypt recalling its ambassador to Algiers on Thursday.

Husam Zaki, a spokesman for Egypt’s Foreign Ministry, said Cairo has asked its envoy to return from Algeria “for consultations” after a week of tensions over qualifying matches for the FIFA World Cup.

Stand-By Counsel Appointed in the Karadzic Case (Updated)

by Kevin Jon Heller

The ICTY has appointed Richard Harvey, a barrister with Garden Court Chambers in London, to serve as Dr. Karadzic’s stand-by counsel.  There is no question that Mr. Harvey is more than qualified for the position: in addition to defending a number of individuals accused of terrorism-related offences in the UK, Mr. Harvey has served as the lead counsel in one ICTY case (Lahi Brahimaj), as co-counsel in one ICTY case (Haradin Bala), and as co-counsel in one ICTR case (Juvenal Kajelijeli).

That said, there are numerous problems with the appointment.  First, there is now little more than thirteen weeks before the trial is due to resume.  That is simply not enough time for Mr. Harvey to prepare for trial, particularly without Dr. Karadzic’s assistance — which he has already indicated he will not provide.  I can only hope that Mr. Harvey’s first act as stand-by counsel will be to demand more time to prepare, although I imagine that the Tribunal conditioned his appointment on him not doing so.  I sincerely hope I’m wrong about that, because demanding more time would send a strong signal to the Trial Chamber and the prosecution that Mr. Harvey intends to protect Dr. Karadzic’s right to a fair trial, not promote the Tribunal’s interest in convicting Dr. Karadzic as quickly and cheaply as possible.

Second, although Mr. Harvey’s desire to begin preparing for trial as soon as possible is understandable, I think it was a serious mistake for him to accept appointment while Dr. Karadzic’s request for certification to appeal the Trial Chamber’s decision to appoint stand-by counsel is still pending.  As Dr. Karadzic points out in that motion, the Appeals Chamber has specifically held that the defendant, not the Trial Chamber, is entitled to select stand-by counsel.  Here is the relevant paragraph (para. 28) from the Appeals Chamber’s 8 Dec. 2006 decision in Seselj:

[T]he Trial Chamber is instructed not to appoint stand-by counsel unless Seselj exhibits obstructionist behavior fully satisfying the Trial Chamber that, in order to ensure a fair and expeditious trial, Seselj requires the assistance of stand-by counsel. Should a time come when the Trial Chamber feels justified to make such a decision, the Rule 44 list of counsel should be provided to Seselj and he should be permitted to select stand-by counsel from that list.

That obviously did not take place here.  Instead, the Trial Chamber simply arrogated to itself the right to choose who would serve as stand-by counsel for Dr. Karadzic.  That was a bad move, one that not only directly contradicts Appeals Chamber precedent, but also — and perhaps equally importantly — fatally undermines Mr. Harvey’s independence. Why should Dr. Karadzic have any faith in stand-by counsel that the Trial Chamber has selected for him?

Third, and finally, I would be remiss if I didn’t question the wisdom of appointing stand-by counsel who has previously defended two high-ranking members of the Kosovo Liberation Army (Brahimaj and Bala)…

What Is It With France and Bad Officiating?

by Kevin Jon Heller

I haven’t irritated OJ purists by blogging about (international) sports for a while, so I think it’s only appropriate to point out that, for the second time in two years, the French have stayed alive in a World Cup only by the grace of pathetic officiating.  The most recent outrage comes courtesy of soccer (being American, I refuse to call it football), where France defeated Ireland and advanced to the 2011 World Cup because four referees missed French striker Thierry Henry’s blatant use of his hands not once but twice on the pass that led to France’s go-ahead goal.  Ireland is in mourning and — rightly — calling for a replay of the match, which would have gone to a penalty shootout had all four referees not chosen an opportune time to stop watching the match.

It’s bad enough that the Irish, with their lovely accents, are deprived of a chance to go to the World Cup.  Even worse, referees also handed the French a victory over my beloved All Blacks, New Zealand’s national rugby team, during the 2007 World Cup.  The All Blacks lost to France 20-18 because the referee, Wayne Barnes, refused to call a ridiculously obvious forward pass on the game-winning try.  So hated is Barnes in New Zealand that his name has entered the Kiwi lexicon as a way to describe being unfairly screwed over: “you’ve been Barnsed.”

Camille Paglia once wrote that we should ignore France’s views on international affairs until it proves it can win a war without anyone’s help.  I think that’s more than a little unfair, but the corollary certainly holds true: we shouldn’t take France’s international teams seriously until they prove they can win without the help of bad referees.

The Responsibility of International Organizations: The Controversy Over Countermeasures

by Kristen Boon

To continue with our earlier postings on issues of interest in the Draft Articles on the Responsibility of International Organizations – a subject of current debate involves countermeasures. Countermeasures can be defined as actions (reprisals) taken to respond to a prior negative action that would violate international law but for the prior wrong. Countermeasures are to be distinguished from sanctions which are per se lawful. The draft articles do not define countermeasures, although draft Article 50(2) notes that “countermeasures are limited to the non-performance for the time being of international obligations of the State or international organization taking the measures towards the responsible international organization.” The draft articles start from the premise that an injured international organization or state may take countermeasures against a responsible international organization. (The Articles on the Responsibility of States similarly provide that states may take countermeasures against responsible states.) Draft Article 21 also suggests that an international organization may take countermeasures against a responsible state, although there is some support for including a separate draft article to address this situation.

Why are countermeasures controversial? The absence of centralized general enforcement institutions in international law means that countermeasures are a form of self-help. As such, there is controversy surrounding their inclusion in any type of responsibility regime for the simple reason that they may excuse acts by a victim that judges an act as wrongful, and responds directly. In other words, some fear that the inclusion of countermeasures will encourage coercion, retaliatory measures, subjectivity, ultimately resulting in interrupted functioning of international organizations. Moreover, states and international organizations are split over whether countermeasures should be applicable in the context of International Organizations at all. Some believe they are irrelevant given the notable lack of practice to date. Others hold that it is wiser to acknowledge, but regulate and limit countermeasures by including them in the draft articles. This last option was the position ultimately adopted in the Draft Articles on State Responsibility, and appears likely to prevail here as well.

Nonetheless, the level of discontent with countermeasures can be seen in China’s recent comments to the 6th committee of the General Assembly: “There has been considerable controversy on whether to introduce the concept of countermeasure into the regime of responsibility of international organizations. Taking into account the important difference between international organizations and states, that is, international organizations symbolize a certain degree of centralization of the international community and represent a certain degree of organization and cohesion in the decentralized international community in which States are the main actors, we insist that the introduction of the concept of countermeasures into the regime of responsibility of international organizations would run counter to the abovementioned function assumed by international organizations. We propose the Commission to tackle this issue in a more cautious manner.”

The provisions on Countermeasures are found in Article 21, and in Part IV of the current draft.

Draft Article 21 provides that:

1. Subject to paragraph 2, the wrongfulness of an act of an international organization
not in conformity with an international obligation towards a State or another international
organization is precluded if and to the extent that the act constitutes a countermeasure
taken in accordance with the substantive and procedural conditions required by
international law, including those set forth in Chapter II of Part IV for countermeasures
taken against another international organization.

2. An international organization may not take countermeasures against a responsible
member State or international organization under the conditions referred to in paragraph 1
unless:
(a) The countermeasures are not inconsistent with the rules of the organization;
and
(b) No appropriate means are available for otherwise inducing compliance with the
obligations of the responsible State or international organization concerning cessation of
the breach and reparation.

Chapter II of Part IV sets out the Countermeasures regime, providing in Arts. 53 – 55 in particular, that countermeasures must be (i) proportional; (ii) the target entity must be given notice and an opportunity to negotiate, and (iii) countermeasures may not be taken if the situation is pending before a dispute resolution body with jurisdiction over the situation. An important difference between the responsibility of states and international organizations is reflected by Article 50(4), which provides that countermeasures shall be taken in such a way as to limit their effect on the exercise by the responsible international organization of its functions. This provision reflects the limited mandate and function of IOs as a general matter.

A particularly thorny question in recent discussions revolved around what should happen where organizations do not have internal dispute resolution mechanisms, or where the internal rules of the organization are silent on the use of countermeasures. Where internal rules exist, the lex specialis rule provides that they will govern the use of countermeasures. Where the internal rules do not address countermeasures however, as is often the case, the draft articles will take on special significance as they will form default rules. This may, of course, spur IOs to create their own rules, but it indicates how unregulated and unexplored the notion of countermeasures is in the context of IOs at present. A final area of debate worth flagging is whether non-injured states or organizations can bring countermeasures against an IO, on the basis, for example, of an erga omnes obligation. The issue is not clearly addressed by the draft articles, although draft Article 56 states that the chapter is “without prejudice” to the right of any State or IO to invoke responsibility. This suggests that the right to respond may exist on the basis of Art. 48 paragraphs 1, 2 & 3, which make reference to obligations owed to groups and the international community.

Much food for thought.

Harold Koh and the Filing of Statements of Interest

by Roger Alford

One of the remarkable differences between the Obama Administration and the Bush Administration in terms of international litigation is the utter silence of this State Department in filing amicus briefs and/or statements of interest. I know that Harold Koh has only been Legal Adviser since June and Sarah Cleveland has only been Counselor on International Law since September, but I frankly am quite surprised by the passivity of this State Department on matters of international litigation. John Bellinger filed at least two dozen statements of interest and/or amicus briefs in Bush’s second term. Beyond responding to the Supreme Court’s invitation to file a government brief in Abbott v. Abbott, Koh has filed only one amicus brief, opposing a pro se prisoner’s claim before the Third Circuit in McPherson v. United States that the plaintiff had an individual right to challenge a violation of the VCCR.

What gives?

The Constitutional Rights of Public Enemies in Armed Conflict

by John C. Dehn

[Major John C. Dehn is an Assistant Professor in the Department of Law, US Military Academy, West Point, NY. He currently teaches International Law and Constitutional and Military Law, and is also a former prosecutor. He is writing in his personal capacity and his views do not necessarily represent the views of the Department of Defense, the US Army, or the US Military Academy.]

I write to take advantage of a generous invitation to guest blog here at Opinio Juris. I do so because the decision to try individuals such as KSM in federal court has generated concern that the Bill of Rights must now be observed to some vague extent in any such trials, and through logical extension, potentially in future military operations. Based on my current research for an article (in partial draft), I doubt that this is constitutionally required as a matter of relevant Supreme Court precedent. Let me first briefly address John Yoo’s recent WSJ comments.

Yoo’s mistake is in making a pragmatic argument about the availability of constitutional rights that can be attacked as has been done below. That said, Yoo’s pragmatic argument is a valid concern. Only an extremely limited understanding of combat operations would lead one to believe that law enforcement-like compliance with the Bill of Rights should be expected or required during armed conflict. There is no need for Yoo’s pragmatic argument, however, because precedent in this area appears to provide a different answer.

Public enemies of the United States have never been afforded the protections of the Bill of Rights. This is not based on their nationality or territorial location. A close reading of Supreme Court precedent clarifies that the political branches exercise war powers in a manner exclusive from the Bill of Rights (except with regard to U.S. domestic populations – where the relationship is less clear). Properly read and placed in context, neither Boumediene nor Milligan conflict with this. Quirin and Yamashita (and many, many other cases) support it. All are completely reconcilable under a proper analysis of relevant precedent, in my humble opinion.

Military law commentators expressed this conceptual framework in different ways. According to Francis Lieber, war suspended the civil laws between opposing armed forces. Therefore, their conduct and interactions (called “belligerent intercourse” by Henry Halleck) were governed only by the laws governing war, or any relevant and specifically applicable domestic law. The powers to conduct the nation’s wars are primarily shared by the political branches. This has historically included the trial and punishment of those violating international laws governing war (both enemy and friendly). These trials were not “jurisdictional gap-fillers” as Deborah frequently suggests, they were lawful measures of imposing punishment under the laws governing war. Indeed, the Supreme Court has separately held that neither military commissions nor courts-martial punishing strictly military offenses by U.S. service members exercise Article III judicial power. The court-martial system we know today, complete with military appellate and Supreme Court review, was not created until after World War II. It was then a policy decision, not a constitutional requirement.

We can debate the applicability of the laws of war to some terrorist conduct, such as pre-9/11 activities unrelated to the attacks of that day. However, if we accept that the law of war paradigm is appropriate both on and after that date, as the Court did in Hamdi, then relevant federal statutes and international laws governing war (meaning international humanitarian law and any relevant international human rights law clearly supplementing it) are the laws that govern the trial of such enemies.

This explains why military commissions, at their origins, had very loose procedural and evidentiary rules. Lieber implied that such trials need only be fair. There were no other requirements under the international or domestic law of that era according to Winthrop. For these reasons, Winthrop further states, the rules applicable at courts-martial were applied to commissions only by analogy, and a failure to follow them to the letter did not invalidate a conviction. The Supreme Court did not even review procedural matters on the rare occasions when it had jurisdiction to review certain military commissions, limiting its review only to matters of temporal (to determine whether convened during an armed conflict or occupation), personal and subject matter jurisdiction (see e.g. Yamashita). (This limited scope of review by civil courts originally also pertained to courts-martial. See Grafton v. U.S., 206 U.S. 333 (1907). In other words, neither appear to be within Hart and Wechsler’s Article I adjunct tribunals to Article III courts.)

The fact that some of these cases are being tried in Article III courts does not necessarily require them to observe constitutionally based rules of evidence, such as Fourth or Fifth Amendment case law. When the federal courts administered prize cases, which were both admiralty and law of war cases, they used certain evidentiary and procedural rules that had developed internationally. In other words, the courts applied only specifically relevant domestic and international rules, and in some cases developed others to fill lacunae. Some rules applied were different from those that would have governed a standard U.S. trial.

For me, the inescapable conclusion from a thorough analysis of Supreme Court precedent, supported by historical practice, is that the procedural and substantive rights to which KSM and others are entitled are only those required by federal statute or by international laws governing armed conflict. They do not stem from the Bill of Rights because those protections simply do not apply. It is impossible to reconcile the view that they do with a vast body of relevant Supreme Court precedent. Fortunately, these international laws are now much more robust than they were in Winthrop’s era. Additionally, as the Court found in Hamdan, Congress had – before the Military Commissions Act – tightened the reins of permissible procedural and evidentiary rules in Article 36 of the Uniform Code of Military Justice. (The MCA removed the requirements of Article 36 for its commissions.)

It is an odd argument which posits that adherence to the rule of law requires a different view of the status and effect of that law than the view that has historically existed in the branch of government constitutionally empowered “to declare what the law is.” While I strongly disagree with Yoo’s unilateralist interpretation of the separation of war powers between the executive and legislative branches (as a matter of text, original meaning, and over 200 years of precedent), those views have no readily apparent relationship to his views regarding the potentially misguided extension of the Bill of Rights to public enemies in armed conflict. One can only hope that the courts will properly read and apply precedent, and thereby avoid the seemingly ideologically-based arguments of those unfamiliar with it. One also hopes that the administration will recognize the perils of adopting any litigation position that does not seek to maintain this line of precedent.

Corruption in My Own Backyard

by Roger Alford

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This story from the New York Times about the corruption of Teodoro Obiang certainly hits close to home. His $35 million dollar estate in Malibu is just down the hill from Pepperdine.

Several times a year, Teodoro Nguema Obiang arrives at the doorstep of the United States from his home in Equatorial Guinea, on his way to his $35 million estate in Malibu, Calif., his fleet of luxury cars, his speedboats and private jet. And he is always let into the country. The nation’s doors are open to Mr. Obiang, the forest and agriculture minister of Equatorial Guinea and the son of its president, even though federal law enforcement officials believe that “most if not all” of his wealth comes from corruption related to the extensive oil and gas reserves discovered more than a decade and a half ago off the coast of his tiny West African country. And they are open despite a federal law and a presidential proclamation that prohibit corrupt foreign officials and their families from receiving American visas. The measures require only credible evidence of corruption, not a conviction of it.

Transparency International ranks Equatorial Guinea as one of the most corrupt countries in the world, with only seven countries ranking below it in the 2009 Corruption Perception Index. According to my friend Professor Robert Williams, the resident expert on Obiang’s corruption, Equatorial Guinea also has one of widest gaps in the world between GDP and HDI. With its wealth of natural resources, Equatorial Guinea has one of the highest GDP’s in the world, ranked 29th, just above the United Kingdom, Germany, Japan, and France. But the country is ranked well below the median on the Human Development Index, 118 out of 182 countries. As discussed here, it also is ranked extremely low on the poverty index, the gender disparity index, the life mortality index, among many other issues.

In short, the average citizen of Equatorial Guinea has a miserable life compared to what he or she could have with the country’s bounty of natural resources. Meanwhile, if the tabloids are correct, my neighbor Teodoro Obiang is hanging out in Malibu at his multi-million dollar hilltop estate overlooking the Pacific Ocean, driving Bentleys and Lamborghinis, and jetting off in his $34 million dollar Gulfstream V to his other homes in Cape Town, Buenos Aires and Paris.

My question is what could be done to address Obiang’s corruption? Go after corporate corruption with Equatorial Guinea under the FCPA and the OECD Convention? Pursue Obiang through litigation as the plaintiffs did with Ferdinand Marcos? Pressure the Obama Administration to take human rights seriously and revoke Obiang’s visa? Other ideas?

The Milošević Trial: An Autopsy

by Roger Alford

I am forwarding this call for papers from Tim Waters at Indiana to be presented at a forthcoming conference on the Milosevic trial. Looks like a great event.

The Indiana University Maurer School of Law, Russian and East European Institute and Center for West European Studies announce a major conference in Bloomington, Indiana on February 18-21, 2010. The conference will analyze the trial of Slobodan Milošević – the longest and most important war crimes trial of the modern era. The trial’s significance and legacy are strongly contested; the conference will examine both the causes of the trial’s termination and its implications for post-conflict justice.

Drawing on major trial participants, experts on the former Yugoslavia, and international criminal law scholars who have written on the trial, the conference will address issues such as: the proper role of historical truth-telling in war crimes trials; measuring the impact of trials; prosecutorial and judicial strategy in designing trials; and access to trial archives. Confirmed participants include

Dejan Anastasijević (Vreme, Belgrade)
Florian Bieber (University of Kent; Visiting Professor, Cornell University)
Bruce Broomhall (University of Quebec)
Robert Donia (Visiting Professor, University of Michigan)
Florence Hartmann (former spokeswoman for the OTP)
Robert Hayden (University of Pittsburgh)
Marco Prelec (International Crisis group, former member of OTP)
Yuval Shany (Hebrew University; Visiting Professor, Columbia University)
Zdenko Tomanović (Milošević’s legal advisor)
Tibor Várady (Central European University, Visiting Prof., Emory University)
Timothy Waters (Indiana University, former member of OTP) and
Clint Williamson (former US war crimes ambassador and member of OTP)

We are seeking a small number of additional papers directly addressing the themes of the conference from scholars of international criminal law, transitional justice, or the former Yugoslavia. If sufficient papers of high quality are received, we may add an additional panel. Papers must be closely related to the conference themes, meaning they either analyze aspects of the Milošević trial or the trial’s impact on the former Yugoslavia, international criminal law, or transitional justice and post-conflict reconciliation. Papers on general issues of international criminal law (without a specific focus on the Milošević trial) are unlikely to be accepted. Abstracts (500 words, plus 200 word bio) and CVs are due by 6 December 2009. For those papers that are accepted, final drafts will be due in late January. Send proposals to Tim Waters here.

Alternatively, individuals with a strong background in the relevant fields may also indicate their interest in serving as discussants. At the conference, discussants will present authors’ papers and give a short (five-page) review and critique. Individuals interested in being discussants should send a short (300 word maximum) note indicating the areas they are most competent to comment upon and their CV by 6 December 2009.

The conference will provide meals to invited participants, and make rooms available at a discounted conference rate. Should additional funding become available, the conference will provide partial or full support for lodging and travel. More information is available here.

Does Anyone Deserve Constitutional Rights?

by Tommy Crocker

A decision to try Khalid Sheikh Mohammed (KSM) and four others in federal court in New York has sparked a new round of debate over detention policy.  The Administration is on course to maintain a three-tiered system:  criminal prosecutions for some detainees in U.S. federal courts, prosecutions of others before a revamped Military Commission, and indefinite detention for still others who can neither be tried nor released.  There are problems with this ad hoc framework, some of which are derived from the need for a comprehensive policy to replace the failed and flawed executive unilateralism under which it was developed.  Congress and courts have put their belated mark on some aspects of the policy, but we continue to operate broadly within its confines. 

One of the contributing authors of the failed executive unilateralism criticizes the Obama Adminstration’s decision to prosecute KSM in New York because “The treatment of the 9/11 attacks as a criminal matter rather than as an act of war will cripple American efforts to fight terrorism.”  Criminal trials must be very harmful activities if they will “cripple” U.S. anti-terrorism efforts.  How will they do that?  Writing in the WSJ, John Yoo argues:  “Prosecutors will be forced to reveal U.S. intelligence on KSM, the methods and sources for acquiring its information, and his relationships to fellow al Qaeda operatives. The information will enable al Qaeda to drop plans and personnel whose cover is blown.”  The openness required by criminal trials is the purported harm.  Why would this prosecution be any more harmful that the prosecution of Jose Padilla or Zacharias Moussaoui, for example, or Ahmad Omar Abu Ali for that matter?  The criticism repeats as its primary evidence of harm an unsubstantiated claim regarding intelligence losses that occurred because of the prosecution of Sheikh Omar Abdel Rahman for the 1993 World Trade Center bombing.  No doubt, care will have to be taken in how the U.S. prosecutes its case, but the alarmist claim that anti-terrorism will be “crippled” belies credibility.  This issue, however, is not the only one Yoo raises, and not the one that primarily interests me. 

He further claims:  “Even more harmful to our national security will be the effect a civilian trial of KSM will have on the future conduct of intelligence officers and military personnel. Will they have to read al Qaeda terrorists their Miranda rights?”  He then asks a series of additional questions about pre-trial procedure in a “war zone.”  As bad as revealing U.S. intelligence sources may be, “even more harmful” would be the requirement that U.S. officials recognize that terrorism suspects have rights, such as the right to be free from coerced (tortured) confession.  Focusing on Miranda is telling, since Yoo was instrumental in providing the legal authorization for U.S. torture practices.  Here we get at the heart of the “war versus crime” dichotomy motivating critics like Yoo:  “KSM and his co-defendants will enjoy the benefits and rights that the Constitution accords to citizens and resident aliens. …”  Or, any person within the jurisdiction of the U.S., an important point Yoo still fails to recognize.   The “war on terror” was said by Alberto Gonzales to be a “new kind of war” rendering “quaint” some of the rights afforded by the Geneva conventions.  This temperament carries over to hostility to granting terrorism suspects constitutional rights in criminal trials, but fails to articulate how adherence to constitutional and human rights norms can themselves be “even more harmful to our national security.”  How is it even remotely plausible to claim that if U.S. personnel must conduct themselves in rough conformity to constitutional (and by implication, human rights) norms, even greater harm to our national security will occur?  In making this claim, Yoo reveals that one motivation for the “new kind of war” model is the attempt to free U.S. officials from certain constitutional and human rights constraints.  Freedom from legal constraint may have its pragmatic advantages, at least in the short run.  This mistaken view is one reason executive unilateralism has led in the long run to an ad hoc detention policy, repaired in part only after the Supreme Court held that detainees were in fact protected by Geneva and were in fact entitled to U.S. court jurisdiction. 

Untethered from an institutionally unrealizable executive unilateralism, there does not seem to be much purpose in reasserting a need for officials to act free from constitutional and human rights constraints.  So why do we see this view reappear as a reason why criminal trials of terrorists cause “even more harm” to national security?  

Continue Reading…

Non-self-executing Treaties and Reverse Preemption

by Roger Alford

The Fifth Circuit earlier this month issued a highly unusual decision addressing whether state law could “reverse preempt” the New York Convention. As any student of international arbitration knows, state law occasionally attempts to limit the enforceability of arbitration agreements. Such a policy is preempted by the New York Convention as implemented by the Federal Arbitration Act. But there is one narrow category of insurance disputes governed by the McCarran-Ferguson Act that is subject to a federal requirement of “reverse preemption.”

In Safety National Casualty Corp. v. Certain Underwriters at Lloyd’s, London, the Fifth Circuit concluded that a non-self-executing treaty, as implemented by federal statute, was not reverse preempted by state law. A Louisiana statute prohibits the arbitration of insurance disputes, domestic or international. Normally that prohibition would be preempted by provisions of the Federal Arbitration Act implementing the New York Convention. But another federal statute, the McCarran-Ferguson Act, provides that “No Act of Congress shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the business of insurance, unless such Act specifically relates to the business of insurance.” Thus, federal law requires that state insurance law reverse preempt acts of Congress.

The Fifth Circuit concluded that an “Act of Congress” within the meaning of McCarran-Ferguson did not cover treaties, including non-self-executing treaties implemented by federal statute:

The fact that a treaty is implemented by Congress does not mean that it ceases to be a treaty and becomes an “Act of Congress.”… We do not consider it reasonable to construe the term “Act of Congress” in the McCarran-Ferguson Act as an indication of congressional intent to permit state law to preempt implemented, non-self-executing treaty provisions but not to preempt self-executing treaty provisions…. Because here the Convention, an implemented treaty, rather than the Convention Act, supersedes state law, the McCarran-Ferguson Act’s provision that “no Act of Congress” shall be construed to supersede state law regulating the business of insurance is inapplicable…. We find no indication from the text of the McCarran-Ferguson Act that Congress intended to signal a distinction between self-executing and non-self-executing-but-implemented treaties in the McCarran-Ferguson’s reverse-preemption clause.

In other words, it is not the FAA, but the New York Convention as implemented by the FAA, that is doing the preempting, and therefore McCarran-Ferguson does not authorize state law to reverse preempt the federal mandate requiring international insurance disputes subject to an arbitration agreement to be submitted to arbitration.

Of course, what the Fifth Circuit did was carve out arbitration of international insurance disputes as a special category from domestic insurance disputes. Following Safety National Casualty, only international insurance agreements can be submitted to arbitration; domestic insurance disputes are non-arbitral by virtue of the reverse preemption of Louisiana law.

Responsibility of International Organizations – The Problem of Attribution

by Gregory H. Fox

I’d like to thank the folks at Opinio Juris for inviting me to reflect on the emerging body of rules addressing the responsibility of international organizations. My post will address the question of attribution and will continue Kristen Boone’s prior discussion of particularly controversial aspects of IO responsibility.

The question of whether internationally wrongful acts are attributable to an international organization is central to the International Law Commission’s (ILC) Project on the Responsibility of International Organizations (IOs). In fact, one might say attribution is the defining issue. On the one hand, many believe IOs act only when their member states cause them to act. From such a Realist perspective IOs have virtually no autonomous agency. Can we really say, for example that “the United Nations” failed to prevent the 1994 genocide in Rwanda when the United States and Belgium – the two states with the most influence over the peacekeeping force then in the country – were adamant against intervention? Or that the World Bank was primarily responsible for the lending conditionalities favored by the Washington Consensus? Was not Washington itself actually responsible? On the other hand, states create IOs precisely in order to shift responsibility for actions they are unable or unwilling to take on themselves. On this view, to pierce the IOs’ veil regularly might well cause states to cut back on or even cease their support for the organizations. Whichever one of these viewpoints one accepts, the question of attribution drives the claim.

Perhaps the most immediate reason attribution has become a hot topic is that it lies at the heart of the European Court of Human Rights’ controversial decision in the Behrami and Saramati cases. There, the ECHR found that acts by UNMIK and KFOR troops in Kosovo were attributable to the United Nations and not the troop contributing states. The criticism of the ECHR’s decision has been so vehement (Marko Milanovic and Tatjana Papic entitle their scathing article “As Bad as it Gets”), that when the ILC added commentary to its draft articles this past summer it made clear the ECHR had misapplied its principles and included a long footnote citing to the critical literature (including the Milavoic and Papic piece (p. 67 n. 102)). Since the ECHR will continue to hear cases involving UN peace operations, the ILC clearly hoped this negative feedback loop will cause the Court to revisit its misguided approach to attribution. But if it does not, one of the major regional courts will have diverged from an approach the ILC believes is well-grounded in customary law.

The ILC addresses attribution in Chapter II of its draft articles. Articles 5-7 are the crucial ones:

Article 5
General rule on attribution of conduct to an international organization

1. The conduct of an organ or agent of an international organization in the performance of functions of that organ or agent shall be considered as an act of that organization under international law whatever position the organ or agent holds in respect of the organization.
2. Rules of the organization shall apply to the determination of the functions of its organs and agents.

Article 6
Conduct of organs or agents placed at the disposal of an international organization by a State or another international organization

The conduct of an organ of a State or an organ or agent of an international organization that is placed at the disposal of another international organization shall be considered under international law an act of the latter organization if the organization exercises effective control over that conduct.

Article 7
Excess of authority or contravention of instructions

The conduct of an organ or an agent of an international organization shall be considered an act of that organization under international law if the organ or agent acts in that capacity, even though the conduct exceeds the authority of that organ or agent or contravenes instructions.

These articles raise several interesting questions. The first is how far they diverge from the troublesome Behrami and Saramati decision. That case involved claims that acts by states contributing troops to the two UN-authorized Kosovo missions violated the European Convention on Human Rights. While the Court cited the “effective control” test in ILC Article 6, it ultimately rested its holding on the UN having retained “ultimate authority” over the two missions by virtue of a Chapter VII resolution. While the Council had delegated operational authority over the missions to NATO, the European Court reasoned that the Council need not have delegated actual control and could have retained operational control itself (paras. 135-6).

The obvious problem with this approach is that even non-delegated “ultimate authority” may not at all translate into actual control on the ground. Even where a formal chain of command runs directly from UN headquarters to peacekeepers in the field, the “phone home syndrome” – where blue helmet commanders clear each UN order with their national capitals – may leave the UN with little actual authority over its personnel. The Court may have borrowed the “overall control” test from its line of decisions on whether the European Convention constrains member states who occupy territories of non-member states. But as Kjetil Larsen notes in his perceptive critique of the decision, the occupation decisions were premised on the understanding “that the occupying power controls the authorities in the occupied territory.” Indeed, the very definition of occupation in Article 42 of the 1907 Hague Regulations – and customary law for many years — requires actual effective control. In short, the Behrami and Saramati test may well attribute acts to IOs who do not have the capacity on the ground to avoid human rights violations for which they may be held responsible.

As noted earlier, whether the European Court is understood to have rejected the “effective control” test altogether or simply mangled it, the ILC seems to have struck back in its commentary by emphatically rejecting the ECHR’s approach. But whether the ILC can maintain its view of the law is uncertain. The Behrami and Saramati decision was clearly the preferred outcome for European troop-contributing states, which had little interest in adverse human rights judgments being added to the burden of their involvement in peacekeeping missions. The political pressure they likely exerted on the Court will surely reappear when the General Assembly’s Sixth Committee reacts to the Draft Articles. Thus it is not at all clear whether Article 6 will survive in its current form.

Second, the principle in Article 5(2) that an IO’s “internal rules” determine the functions of its organs and agents is borrowed from the ILC’s widely praised Articles on State Responsibility. But a distinction between internal and external law for IOs is quite unlike the the national/international law division used for the state responsibility rules. What is the “internal” law of an IO but another species of international law? IO internal law usually derives from its constitutive treaty. The meaning, status and viability of those treaties, like all treaties, is a matter of international law. Most importantly, a treaty may be overridden by a hierarchically superior norm – usually a jus cogens norm or a Chapter VII resolution of the UN Security Council (via Article 103 of the Charter). Regarding IO “internal law” as an entirely separate set of norms seems a misplaced borrowing from the State Responsibility articles.

Finally, would the “effective control” test prevent an international organization from intentionally shielding itself from responsibility when it enters into agreements with outside parties? In domestic legal systems parties frequently create “independent contractor” arrangements that deliberately aim to avoid creating principal-agent relationships and, in so doing, shield would-be principals from responsibility for the acts of their would-be agents. One can think of many situations in which IOs would seek the same arrangement.

But under ILC Article 6 attribution of state acts to an IO would not be affected by such a legal characterization of the relationship. The question would instead be a purely factual one. Indeed, although citing a different rationale, the ILC makes a point of noting that agreements between the UN and troop-contributing states could not conclusively determine the attribution question (the Commission reasons that the rights of individuals such as those in the Behrami and Saramati cases could not be determined by agreements to which they are not parties). Are IOs therefore destined to face the following dilemma whenever they enter into relationships with state organs: either exercise little control over the state actors in order to avoid ultimate responsibility or assume operational control and with it responsibility for the state’s wrongful acts? The former would certainly avoid liability but would also prevent IO from issuing direct commands to the state actors, presumably necessary to get its work done. The latter would allow the IO to achieve the results it seeks from the relationship with the state, but it also makes liability much more likely. The independent contractor device would avoid this trade-off between effectiveness and liability. But the ILC would seem to have made it unavailable.

The bright spot in these difficulties is that attribution is one of the few areas of IO responsibility with considerable support in state practice and decisional law. These will continue and perhaps evolve in the future, and perhaps the dilemmas will work themselves out in the process.

Hey, Mr. President, You Bow to No One!

by Julian Ku

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I’m fascinated by the mini-kerfuffle (on the Right at least) over President Obama’s propensity to bow when meeting foreign heads of state who are also royalty (see his super-bow to the Emperor of Japan to the right).  In the old days, this type of stuff was really important.  Students of Chinese history may recall that one of the first British emissaries to the Chinese emperor refused to “kowtow”(叩頭)as a matter of principle since it symbolized submission to the authority of the foreign sovereign.  These days, it is just amusing blogfodder.   I don’t know why the President feels a need to bow to royalty, since as this link shows, no one else who meets with the Japanese Emperor feels a need to do so. I guess he’s just overly polite.  But he’s the U.S. President. He bows to no one!

Guest Post: Bidding for Justice

by Kevin Jon Heller

The following is a guest post by Lt. Col. Chris Jenks, the Chief of the International Law Branch in the Office of the Judge Advocate General. Lt. Col. Jenks is posting in his personal capacity.

A Canadian Court recently sentenced Désiré Munyaneza, a former Rwandan Army officer, to life imprisonment with eligibility for parole following his conviction in May for genocide, crimes against humanity, and war crimes he committed in Rwanda in 1994.  The prosecution was Canada’s first under its Crimes Against Humanity and War Crimes Act, which Canada enacted in 2000 to implement its obligations under the Rome Statute of the International Criminal Court.  Under the Act, a person who commits genocide, war crimes, and/or crimes against humanity, whether the offenses occur in or outside Canada, may be prosecuted.  There are temporal qualifiers to the Act’s grant of jurisdiction, one of which, and the basis for jurisdiction against Munyaneza, is that after the offenses are alleged to have been committed, the person is present in Canada.  Canada was the first states party to the Rome Statute to modify its domestic law and some, in Canada and the international community, are pointing to the prosecution as proof of a derivative benefit from the ICC and indicative of international criminal justice to come.  Certainly accountability and punishment for the heinous crimes Munyaneza both orchestrated and participated in is welcome and long overdue.  Yet the Munyaneza trial may be more cautionary than complimentary in augering the future of international criminal justice.  The trial lasted two years, required hearings in five countries, and estimates of its cost to date range up to $4 million, which does not include the cost of the appellate process or of incarceration, and Munyaneza reportedly will serve 21 years in confinement before being eligible for parole.  Some may respond that by ICTY or ICTR standards the Munyaneza trial was relatively quick and economical.  But that misses the point, implicit in the seemingly inexorable drive towards universal jurisdiction is the role of individual state action and responsibility.  But how much responsibility and thus cost should any one state assume?  Similarly, what are the implications of, and for, a state which assumes too much?…

Holder Speaks

by Deborah Pearlstein

Cross-posted at Balkinization

Nothing like Friday afternoon with the President overseas for a little news: The men accused of conspiring to commit the 9/11 attacks will be tried in federal court in New York City. Five other men, including a man accused of involvement in the USS Cole bombing in 2000, will face trial before new and improved (if not perfect) military commissions. White House Counsel Greg Craig resigns, over many, rightly disputed accusations that he should have resolved the 8-years-in-the-making Gitmo mess in his first 365 days.

In case those stories don’t give you enough to digest, you might have also done well to catch a series of administration officials (among others) talking about military commissions and the like on panels yesterday and today at the ABA’s Annual Review of the Field of National Security Law in Washington, D.C. (Full disclosure: I did a military commissions panel with Robin Jacobsohn, Deputy General Counsel at DOD; Col. Mary Perry, Director of the Operations and Int’l Law Division at the Air Force TJAG’s office; Scott Silliman of Duke and Jonathan Hafetz of the ACLU. ) You should also probably read yesterday’s white paper from the Center for American Progress think tank (CAP) in D.C. arguing, inter alia, that the remaining Gitmo detainees who may lawfully continue to be held under the AUMF and laws of war should be transferred for continued detention to Bagram Air Base in Afghanistan. And that if you want to know how the Afghans are doing in preparation for taking over detention and trial operations themselves one of these days, two new Human Rights First reports on U.S. detention operations in Afghanistan are certainly worth reading, available here and here. Hint: Not so well.

For the moment, I’ll stick with today’s blockbuster prosecutions announcement. The decision to pursue the highest profile prosecutions of the 9/11 co-conspirators like Khalid Sheik Mohammed in federal criminal court in New York is wise, welcome and long overdue. We have prosecuted the likes of KSM in federal court before, we can do it again. The decision to use military commissions – improved though they may be – is, as I’ve written here before, a greater gamble.

As the Supreme Court has consistently recognized, our constitutional structure reflects a strong preference that determinations of guilt and innocence be carried out by independent courts created under Article III. In keeping with this constitutional presumption, the extent to which the Court has approved the use of Article I military courts, even with congressional authorization, has been strictly limited. As the Hamdan Court itself noted, military commissions are courts of necessity, whose use must be incident to the conduct of a particular war. So in each case to come before the commissions, we must ask (1) What is the necessity that makes this forum appropriate? What jurisdictional gap exists that would foreclose prosecution of Al Nashiri (the accused USS Cole bomber) in federal criminal courts? What relevant principle distinguishes his crime (accused of attacking a military target) from KSMs (accused of attacking civilians)? And (2) To what armed conflict are these offenses incident? In this respect KSM’s case is easier; the Administration is hardly alone in viewing the attacks of 9/11 as the initiation of a war against the United States. But as far as one can tell from government allegations to date, Al Nashiri is accused of involvement in a conspiracy dating to 1998. See, e.g., here (scroll down). Whether or not one can make the case under international humanitarian law (IHL) that there was a de facto non-international armed conflict already under way between the United States and Al Qaeda in the 1990’s (and the case under IHL is far from clear), our own Congress didn’t pass the Authorization for the Use of Military Force against Al Qaeda until after September 11, 2001.

There may be an available legal theory that explains the decision making here. But I didn’t quite get an answer to any of this from my thoughtful co-panelists from the Administration today. In all events, for these, among many other reasons, the Administration will have a long road ahead of it as it pursues commissions.

A Fair-minded Critique of the Goldstone Report

by Julian Ku

Richard Goldstone is getting lots of flak for his recent report on the conflict in Gaza.  Much of this flak is either undeserved or way over the top.  But the unreasonableness of some of his critics does not mean his report was actually good and wise and fair.   The basic problem, as I see it, was that Goldstone and his team was unable to determine crucial but contested facts with an even minimally acceptable level of reliability.  Yet the Report (and Goldstone should have known this) made a variety of official sounding “findings of fact” which are going to be used by anti-Israel propagandists for decades.  A fuller description of this critique is developed in great detail here by Trevor Norwitz, a partner at the well-known U.S. law firm of Wachtell, Lipton, Rosen, and Katz.  It seems like a sensible critique and one that folks like Goldstone should take to heart next time they are offered an impossible fact-finding mission.

Obama Prepares to Reverse His Guantanamo Promise

by Julian Ku

Unless something rather dramatic happens, the Obama Administration is going to give up on its self-imposed January 22, 2010 deadline for closing prison facilities at Guantanamo Bay. The Center for American Progress, a reliable barometer of the Administration’s thinking, has also advised against meeting the deadline.

As a legal matter, it is not obvious that closing Gitmo would have made much of a difference.  In fact, current conditions at Gitmo are almost certainly better than the average U.S. prison. And it seems likely that Gitmo detainees will get almost all the same legal rights that they would have if held in the U.S. and probably more than if they were held in Afghanistan.  While such detentions may violate international law, these detentions would equally be problematic in the U.S. or in Afghanistan.

So closing Gitmo was almost a purely symbolic act and it is really hard to figure out how to close it effectively.  Obama knew or should have known this when he signed the closure order.  But he obviously screwed up, which is why he has apparently fired the  architect of this deadline, White House Counsel Gregory Craig. I guess someone has to take the blame.

Call for Submissions – GW Int’l Law Review

by Deborah Pearlstein

From our friends at George Washington Law School:

The George Washington University International Law Review is now accepting submissions of book reviews for publication in Volumes 41 and 42. Book reviews should be written on a recent or forthcoming book discussing a timely issue in international law. Word count should not exceed 9000 words. Submissions must be in Microsoft Word (.doc) format and include a copy of the book-review author’s curriculum vitae. Please send submissions and any inquiries to Dana Parsons at dparsons [at] law [dot] gwu [dot] edu.

ICC Panel Discussion at SAIS

by Kenneth Anderson

For those around DC this upcoming Monday afternoon, there is a very interesting panel discussion organized jointly by the ABA International Section, ASIL, and SAIS on the ICC.  It will feature a screening of an excerpt from the documentary The Reckoning, and then a panel discussion that will have Gary Solis, Jane Stromseth, John Bellinger, and me, and moderated by Ruth Wedgwood.  At SAIS, Rome Auditorium, 1619 Mass Ave, NW.  Film excerpt from 4:30-5:00, and then the panel discussion from 5:00 to 6:00.  RSVP at this link.

I imagine one of the important issues for the panel discussion will be the US and the ICC – join, cooperate, what exactly?  This was the topic of an ASIL initiative that Chris was involved with a few months ago, as well as a Brookings initiative as well.  The Brookings initiative has turned into a hardback book authored by Lee Feinstein (currently US ambassador to Poland) and the Hoover Institution’s Tod Lindberg, editor of Policy Review.  I was part of the advisory group that Brookings convened on this, and read early drafts of the manuscript.  It’s a terrific discussion, and builds an impressive case that centrists across the divide could build on to support the ICC in some fashion.

My own views were much closer to the views of the book until a few months ago; they have gradually shifted since then. I find myself much less favorably disposed to the US getting closer to the ICC than in 2008, at least if that means actually joining.  The reasons are two:  one is that the ICC prosecutor has been sufficiently erratic that I don’t think the ICC itself has sufficient stability that the US could believe that it has a clear understanding of what it would be getting itself into by actually joining.  The ICC prosecutor has turned the office in the forseeable future into something that carries too many uncertainties for the US, in my view.  The second is that the Obama administration seems to me unlikely to be sufficiently protective of US interests, at least as I see them, in setting the terms of a US getting closer to the ICC for this to be a good thing.  That is in what I would regard as the extraordinarily unlikely event that the Obama administration, at least anytime before its last months in office, decided to pursue joining.  But of course this is explicitly predicated on my view of what the US interest is.  But it is hard for me to imagine that the Obama administration thinks that it could seriously consider joining an organization with some ability to go after it on legal grounds for its targeting decisions in Afghanistan and Pakistan and other places.

Much of this is moot, however, because at bottom I don’t think the ICC leading actors – states, the prosecutor, others – particularly want the US to join.  It introduces a new layer of uncertainties for it that I do not think it wants or needs at this point.  So I think there are ways in which the US could cooperate with the ICC in ways that don’t touch on, for example, Afghanistan or targeted killing or other things.  There are many common interests, or at least would be, if there were any reason to think that the US is interested in international criminal justice issues related to such places as Sudan.  Is there?

Christians Under Attack in South Carolina

by Tommy Crocker

Yes, it’s true, according to the Lieutenant Governor of South Carolina, Andre Bauer.  A U.S. District Court held this week that a State-sponsored vehicle license plate featuring a cross superimposed over a stained glass window with the words “I Believe” violates the First Amendment’s Establishment Clause.  As reported by The State newspaper, the Lt. Governor declared in response that the ruling was “another attack on Christianity.”  (BBC coverage here with a picture of the plate). 

Who knew that in South Carolina Christians were under attack?  Perhaps the U.N. should open an investigation into religious oppression in South Carolina by the Special Rapporteur on Freedom of Religion or Belief?  I jest, though as we have seen, the U.N. doesn’t always investigate the most obvious places.

The “I Believe” license plate originated with the Lt. Governor, whose role was highlighted in the court’s opinion.  In public comments, he claimed:  “So we have become a silent majority quite frankly, folks. When a secular group can get a license plate and nobody challenges it, but Christians can’t, there’s a problem in the system.”  Such persecution rhetoric does lend itself to a particular kind of resentment—the Lt. Governor is in the majority, but cannot enact his preferred agenda.  Of course, there is an important reason why he cannot do so, other than the oppression of a “silent majority”:  constitutional constraint in the form of the Establishment Clause.  The Lt. Governor’s rhetorical strategy highlights how constitutional discourse migrates and transforms as it is applied in new circumstances.  Equality discourse, usually deployed on behalf of those occupying a minority status, is redeployed here to assert claims by a majority against others.  Thus, the Lt. Governor can gin up outrage that Christians, who are an overwhelming majority, are not being treated equally in the public sphere.  Equality arguments have worked in other contexts to support inclusion of Christian viewpoints in state-sponsored fora.  Though, the problem here is that the Christian viewpoint is one the State of South Carolina adopted itself, rendering the Lt. Governor’s position clearly untenable.  As creative as the equality argument may be, we see that constitutional rhetoric is not always closely aligned with commitment to particular forms of constitutional constraint. 

Conference on The Role of Ethics in International Law

by Roger Alford

On Friday, November 13, the International Legal Theory Interest Group of the ASIL will sponsor a scintillating event on the role of ethics in international law. The event will be held in Washington D.C. at the Tillar House and the Cosmos Club. Details here.

Here’s the breakdown of the panel discussion:

Panel 1: Ethics in Public International Law (9:15) (Tillar House)
Moderator: Brian Lepard (Nebraska)
Roger Alford (Pepperdine): Moral Reasoning in International Law
Oona Hathaway (Yale): Why Do States Comply with International Law?
Ed Swaine (GWU): Breaching

Panel 2: Ethics in Private International Law (11:15) (Tillar House)
Moderator: Trey Childress (Pepperdine)
Lea Brilmayer (Yale): The Ethical Problem in Private International Law
Perry Dane (Rutgers): The Natural Law Challenge to Choice of Law
Symeon Symeonides (Willamette): The Quest for Multistate Justice

Panel 3: Normative and Theoretical Perspectives (2:00) (Cosmos Club)
Moderator: Tim Sellers (Baltimore)
Samantha Besson (Duke/Fribourg): The Nature of Human Rights Theory
H. Patrick Glenn (McGill): The Ethic of International Law
Mary Ellen O’Connell (Notre Dame): Finding Jus Cogens: Preemptory Norms and Natural Law Process

Having reviewed the abstracts, I can promise that it will be a great event. If you are in or near Washington D.C. on Friday, come join us.

Responsibility of International Organizations II: Where is the internationally wrongful act?

by Kristen Boon

The Draft Articles on the Responsibility of International Organizations (“RIO”) provide that for an internationally wrongful act to occur, (i) the conduct must be attributable to the IO under international law, and (ii) constitute a breach of an international obligation of that IO. Greg Fox will be blogging on the important question of attribution later this week. I would like to comment on the second issue of what constitutes a breach of an international obligation by an IO.

Like the articles on State responsibility, the RIO articles differentiate between primary and secondary rules in that they do not define the source obligations that create international responsibility. Instead, “primary” determinations are left to other bodies of law like treaties, custom, and, somewhat controversially, the rules of the organization. See draft Art. 2(b) & 9. The purpose of the draft articles is to develop the “secondary” rules, that is to say, the legal consequences of a failure to fulfill the primary rules.

As noted in my last blog, one persistent criticism of the draft RIO articles is that a material body of practice with regards to international organizations is lacking. Indeed, many States and IOs have noted that it is difficult to comment on the proposed articles because so many of the questions they raise are abstract. James Crawford’s lucid comment that “there is lots of customary law on State responsibility, and the action of international organizations is by definition linked to the actions or omissions of States” reminds us that State responsibility fills some of the gaps. Nonetheless, a serious question remains: what value do secondary rules have if there is little consensus on the primary rules of what constitutes an internationally wrongful act by an international organization?

Even the most vocal critics of the RIO draft articles concede that a valuable contribution of the current project is to prohibit states from creating or authorizing IOs to circumvent their own obligations under the law of State responsibility. In other words, states cannot “outsource” their responsibility to IOs. See e.g. the widely supported draft Arts. 16 & 60. In addition, the draft articles prohibit states from aiding or assisting, and coercing an IO in the commission of an internationally wrongful act. In this area, the ILC can draw on established practice in European courts, including the Bosphorus case, the Waite and Kennedy v. Germany case, and the Application of M. v. Germany case before the ECHR.

In my view, two other key benefits are apparent, and I’d be interested in readers’ reactions. First, increasingly international organizations, rather than states, are becoming the relevant international actor. Nonetheless, the proliferation of IOs on the international scene and the intensification of multilateral endeavors has not been met with corresponding accountability and responsibility mechanisms. The development of secondary rules on responsibility is not only an important step in addressing part of the accountability deficit; the RIO articles will also harmonize the practical development and application of new rules including primary rules on responsibility. The outcrop of new cases challenging international organizations directly and indirectly, (see e.g. the Kadi cases before the ECJ on Security Council Resolution 1267, and the much criticized admissibility decision by the ECHR in Behrami & Saramati) suggests that we are on an upward trend with regards to demands for redress against IOs, and that these secondary rules can and will encourage consistency amongst courts in their approach.

Second, as Professor Giorgio Gaja, Special Rapporteur on the Responsibility of International Organizations notes in his important first report to the ILC, a number of the most controversial questions affecting IO responsibility were raised but left aside during the development of the draft articles for State responsibility.   The RIO articles take the State responsibility articles as their point of departure, but the interconnectedness between IOs and states mean that an important void still needs to be addressed.   Art. 63, which recognizes variations in IO regimes and responsibilities through its provision on Lex Specialis, provides that special rules will displace the general articles in appropriate situations. Although this provision may prove problematic if the exceptions swallow the rule, at present it recognizes the evolutionary process in play and accounts in part for the lack of practice to date.

When Is a Trial Not a Trial? When the Registry Says So

by Kevin Jon Heller

Another day, another attempt by the Registry to undermine the fairness of Dr. Karadzic’s trial. Rule 3.3 of the Registry’s Remuneration Scheme for Persons Assisting Indigent Self-Represented Accused provides that a self-representing defendant’s legal team is entitled to be paid for “a maximum of 150 out-of-court preparation hours… per month for the duration of the trial.”  Dr. Karadzic’s legal team thus expects to be paid for the approximately 600 hours it will spend on trial preparation between October 27, when the trial began, and March 1.  After all, it’s obvious that trial has begun: the prosecution has given its opening statement; both the Trial Chamber and the prosecution have announced that trial has commenced; and the Registrar himself has directed that all new pleadings be labeled “T” (for “trial”) instead of “PT” (for “pre-trial”).  No problem, right?

Wrong.  The Registry’s Office of Legal Aid and Detention has unilaterally determined that, despite the above, the trial has not actually started and thus Dr. Karadzic’s defence team is not entitled to be paid for the 600 hours.  And it has also refused to pay for a significant portion of the defence team’s pre-trial work — nearly half — which means that the 600 hours cannot be paid as pre-trial work, either.  The upshot: according to the Registry, the defence team is expected to work for free between now and March 1.

This decision is, quite simply, a joke.  Recall that, because the Registry insists that highly-qualified legal associates cannot be paid more than support staff such as translators and secretaries, Dr. Karadzic’s legal associates are paid a maximum of 25 euros/hour.  So we are talking literally 15,000 euros in fees.  That money means nothing to the Tribunal, which has happily accepted billions of dollars in funding from the UN, but it is obviously of critical importance to the defence team’s ability to help Dr. Karadzic prepare for trial.

I’ll say it again: the Registry could not care less about whether Dr. Karadzic receives a fair trial.  If it can help the prosecution secure a conviction by crippling Dr. Karadzic’s defence team, it is more than happy to do so.

Andrew Sullivan’s Dear President Bush

by Tommy Crocker

I owe many thanks to Kevin, and the Opinio Juris community, for inviting me to join the conversation.

Although it has been in circulation for over a month now, I find myself still mulling Andrew Sullivan’s provocative open letter, Dear President Bush, in October issue of the Atlantic. It is a unique and thoughtful approach to the problem of torture and responsibility.

Sullivan’s letter unflinchingly describes official practices and acts during the Bush years as torture.

“The point of this letter, Mr. President, is to beg you to finally take responsibility for this stain on American honor and this burden on a war we must win. It is to plead with you to own what happened under your command, and to reject categorically the phony legalisms, criminal destruction of crucial evidence, and retrospective rationalizations used to pretend that none of this happened. It happened. You once said, “I’m worried about a culture that says . . . ‘If you’ve got a problem . . . blame somebody else.’” I am asking you to stop blaming others for the consequences of decisions you made.”

Why must President Bush take responsibility? For one, Sullivan claims that “[N]o previous American president has imported the tools of torture into the very heart of the American system of government as you did.” Moreover, “[B]y condoning torture, by allowing it to take place, and by your vice president’s continuing defense and championing of torture as compatible with American traditions, you have done enormous damage to America’s role as a beacon of freedom and to the rule of law.” Finally, regarding the policies and actions taken in violation of the Geneva Conventions and other laws, Sullivan writes: “The responsibility for all of this is yours—before the American people and before the court of history. And you need finally to own these decisions, to take full responsibility for them, to account for them, to explain them, and yes, to apologize for their scope and brutality.”

Why not hold all official actors who authorized, justified, and perpetrated torture accountable? Why President Bush alone? Sullivan believes ignoring the evidence of torture and war crimes is not an option, but neither is seeking to prosecute high officials such as President Bush or his vice president, because to do so would be even more damaging to the polity. Prosecuting lower officials would be to persist in scapegoating under a “few bad apples” theory. Thus, Sullivan arrives at a model he attributes to Ronald Reagan: “Only you can move this country forward by taking full responsibility for the past and supporting the current president in his abolition of torture and abuse.” Citing Reagan’s 1987 speech in which he took responsibility for trading arms for hostages in Iran, Sullivan continues:

“You may not have intended to torture people, but you did; you may have acted to protect the country within the law, but that admirable desire too easily slid into your approval of actions that are indefensible, illegal, and deeply damaging to America’s reputation and honor. You were let down, as Reagan was. He took responsibility. You need to as well.”

Sullivan’s approach is unique. It is a direct appeal, using direct address. I have a number of questions, however. If President Bush were to take responsibility as Sullivan eloquently requests, would that really “help restore this country’s reputation.”? Is restoring our reputation the main objective? What is the objective of any call for accountability? Sullivan’s call sounds in the language of reconciliation, language he explicitly deploys in his letter. But is reconciliation the right discourse? One view regarding the relation between torture and responsibility, is that where it might seem an viable response to conditions of necessity ex ante, any official who succumbs to the temptation to torture must be held to account ex post (I discuss this more here). The process of holding officials responsible is one where other governing bodies, as well as the sovereign people, get to pass judgment on actions taken in their name. By contrast, Sullivan’s approach seems to accept at least one premise of executive unilateralism by focusing on the unilateral responsibility of the executive. Continue Reading…

Yale Journal of International Law Launches Online Edition

by Julian Ku

The Yale Journal of International Law (YJIL) has announced the launch of its new website, http://www.yjil.org, featuring unique online content for the first time in its thirty-five year history. YJIL Online provides authors a forum for short analytical essays relevant to the furtherance of both scholarship and practice. The first issue includes a co-authored piece by State Department Legal Adviser Harold Hongju Koh and Aaron Zelinsky, and a piece by Yale Professor W. Michael Reisman and Brad Tennis. The third feature essay highlights the international Anti-Counterfeiting Trade Agreement by practitioners Eddan Katz and Gwen Hinze of the Electronic Frontier Foundation. The new website also has information about the 35th Anniversary YJIL Conference (Government Lawyering and International Law) and subscriptions to the Journal.

I Wasn’t Paying Attention When the Wall Came Down

by Kenneth Anderson

I’m sorry I wasn’t and I don’t quite know what happened.  I knew that big things were happening, but unlike Peggy’s experience, it all seemed very gradual to me and finally anti-climactic.  It seemed like something that was gradually sliding into place.

I credit that to two things.  One was that I was working in a Manhattan law firm, and completely buried in learning international tax.  The other was that I had spent the previous several years putting in large amounts of time with Human Rights Watch, both its Americas division and its Helsinki division.  I had done many missions in Yugoslavia, and I think the sense that the Soviet Union was falling apart happened while watching Yugoslavia fall apart very much upclose, at the village level, and watching it lead to war, affected how I saw the Soviet Union.  I had a huge anxiety that war would break out in the Warsaw Pact; or that it would be a repeat of 1968, or something that I didn’t know, but bad, would happen.

I was also perhaps lulled into a sense of passivity that was somewhat Bush senior’s approach – looking backwards, it had important advantages by treating it as a matter of course – but for me, at least, it felt a little like events were unfolding, not so much as Frank Fukuyama would later say, but more as people like Adam Michnik and the Eastern Europeans intellectuals I knew said it would, if only the US and Western Europe would stay the course.  In Yugoslavia, it was a very different sense; the intellectual elites of Yugoslavia understood very well that the end of the Cold War undercut the existential position of Yugoslavia and so it did.  I had a sense of trepidation, not of liberation and freedom. The profound sense of liberation came later for me, when I finally believed that it was permanent and not a temporary blip.

Not very Reaganite, but then I wasn’t a Reaganite or a con or a neocon then.  I had a deep fear that if one looked at it too closely, someone, the Red Army, someone, somewhere would take it all away again.  It was very hard for me to believe that this was actually real and tangible, and not something so fragile that a little puff could bring the house of cards down.  (I’m not sure if Philip Alston remembers, but we had a conversation on almost exactly those lines, at a human rights conference organized by Philip and Henry Steiner, with me as administrative assistant, on Crete earlier that summer, sitting out on the beach of a Cretan monastery and positively slathered with sunblock.)

So I wish I had been more attentive to events, and wish that I could blame it merely on working such long hours in the law firm – but rather, it felt to me like something happening in slow motion across many years and November 11 was weirdly not so special for me, because I had been involved for so many years, since the early 1980s, with HRW and watching events unfold at the level of civil society activists.  A close friend of mine was there when it happened, though, David, a gay man with AIDS.  I was astounded when he stopped by to see me in New York with photos of himself chipping away at the Wall.  Possibly a little bit cheated – since when was David off partying in Berlin and not me?  He had never been “political” in any sense, not gay rights, not really anything, and I told him I was pretty sure he couldn’t find Bratislava on a map – until AIDS caught him and he became deeply involved in ACTUP.  Since when did he deserve to go celebrate the end of Communism and the Wall?

But David saw in some deep way as AIDS closed in on him, however, that being at the fall of the Wall was as an act of liberation even for people otherwise altogether uninvolved in the politics of the Cold War, or the politics of Europe, or any of that.  It was just freedom, and maybe David actually captured its pure spirit – dissociated from politics.  If that is possible, and  I don’t know that it is; actually, I am pretty certain it is not.  But David died just a month later, AIDS caught up with him for good, in the hospice of the San Francisco Zen Center; the Lord bless him and keep him, he was a good man, and so were the monks of the Zen Center who watched over him.

And so, for better and worse, that’s how I remember the fall of the Wall.  Photos of David that I no longer have, pre-digital, gaunt and his long hair swinging round, laughing and singing, wearing some kind of weird poncho that he never would have worn in 80s LA (but of course I might), standing on top of a big pile of cement.  There isn’t any big moral here about freedom and liberty – there is all of that, for me as for others, but in my case it wasn’t associated with the actual moment.  The comprehension of liberation and freedom came later.

Constitutional Comparativism and Juvenile Life Without Parole

by Roger Alford

As I reported here, the two cases of Sullivan v. Florida and Graham v. Florida present the best opportunity for constitutional comparativism since Roper v. Simmons. We apparently are an international outlier and the Convention on the Rights of the Child, with 190 parties, categorically prohibits JLWOP for everyone under the age of eighteen. But from reading the transcripts in today’s oral arguments (see here and here), you would never guess it.

None of the usual suspects raised the issue, despite the fact that the parties and numerous amici raised it in their briefs. Justices Sotomayor and Ginsburg were active interlocutors, but neither broached the topic. Justices Kennedy, Stevens, and Breyer were remarkably quiet, and the conservatives–particularly Chief Justice Roberts–led the charge for a case-by-case proportional approach the would eschew any categorical rule.

Of course, oral arguments are poor predictors of the result or reasoning of the Court. But based on almost two hours of oral argument, I seriously doubt the issue of international law or foreign practice will merit any discussion by the Court.

As I have written elsewhere, the constitutional comparativism revolution may be fading. It’s been over six years since Justice Breyer waxed poetically about the “bliss was it in that dawn to be alive” in this new age of constitutional comparativism. We’ve heard nary a peep from the Court on this issue since March 2005.

Responsibility of International Organizations

by Kristen Boon

The 6th Committee of the GA recently finished its first reading of the 66 draft Articles on the Responsibility of International Organizations (“RIO”). The draft articles create rules on when international organizations can be held responsible for internationally wrongful acts under international law. In other words, when can international organizations (“IOs”) sue or be sued? The ICJ’s 1949 Reparation for Injuries case set the ball in motion, when it found that the United Nations has legal personality, and hence the right to bring a claim. Since then, the spectacular collapse of the International Tin Council in the 1980s, the dramatic expansion of multilateral activities by IOs generally, and the 2007 Behrami & Saramati cases before the ECHR have made IO responsibility a question of concrete importance.
The ILC’s efforts to develop draft articles on the Responsibility of International Organizations have been the subject of much critical commentary. See for example the 2006 speech by Jose Alvarez before the Canadian Council on International Law.
Although the draft articles on RIO are modeled on the state responsibility articles, it is nonetheless clear that IOs are more complicated. IOs are not unitary actors like states, instead they are created by states to perform a wide range of functions. Moreover, unlike the field of state responsibility where there was a great deal of practice to draw on, there is very little practice with regards to IOs. Responsibility requires a determination as to whether and in which circumstances the organization can be held responsible, and whose acts qualify as wrongful acts of the organization. Moreover, it presents sensitive questions about joint liability between states and IOs. The ILC’s helpful analytical guide containing the development of the RIO articles, and commentary by states and IOs can be found here.
Let me start today with a threshold matter. What is an international organization? Art. 2 of the draft articles defines “international organization” as “an organization established by treaty or other instrument governed by international law and possessing its own international legal personality. International organizations may include as members, in addition to States, other entities.” This definition is broad, in comparison with Art. 2 of the Vienna Convention of 1986 on the Law of Treaties between States and International Organizations, which defines an international organization simply as “an intergovernmental organization.”
Some IOs have near universal membership, others have only a regional focus. Some IOs have state members, others have members that are non-state entities. Some IOs have powerful members that exercise considerable clout on that IO’s decision making, others do not. Finally, some IOs, like the EU are granted broad reaching constitutional powers, other IOs, in accordance with their constitutive instruments, have a much narrower range of functions. Given the range of international organizations in existence, is it possible to create a regime that applies to all IOs? The ILC clearly thinks so, and recent debates indicate that states are coming around to this position, although many IOs may not be. Nonetheless, the wide variations in types of IOs will continue to be problematic in particular debates on attribution, counter measures, and what constitutes an agent or organ of the IO.
Greg Fox from Wayne State and I will post commentaries on key areas of the debate this week.

Remembering the Other 9/11: Nov. 11, 1989 and “Walls Come Tumbling Down”

by Peggy McGuinness

Like many of you over a certain age, I have been thinking a lot about where I was when the Berlin Wall fell:  driving with a friend from Montreal to my parents house in New Jersey, listening to dispatches from Berlin over the radio.  My father was glued to the television set when we finally pulled in sometime in the late evening.  It seemed so surreal at that moment to see history unfolding live.  The feeling that is hard to replicate, with 20/20 hindsight, is how unlikely it had seemed to me — to us all, really — in early 1989 that the Cold War would end in my lifetime. And here we are, twenty years later.

Only two years before the wall fell, I had taken a study trip to Berlin and done all the requisite American student exploration of the wall and East Berlin: transiting through Checkpoint Charlie, trying in vain to spend the East German marks that we had been required to exchange (and finally succeeding at the Communist Party bookshop on Friedrichstrasse where we picked up copies of Das Kapital and the writings of Lenin in German), chatting with the VoPo officers in front of the Soviet embassy on Unter den Linden, taking pictures in front of the Marx statute at the Volkspalast, and having one of the world’s worst lunches (with service to match) in a depressing East Berlin coffee shop. Little did I know that day that in 24 months the wall would be gone and just seven years later I would be serving as a U.S. diplomat in a reunited Berlin and Germany.

My friends and I capped off that day in 1987 spray painting some “profound” words on the west side of the wall, a quote from one of our favorite bands of the time, Style Council (hey, I still like Paul Weller):

You see things can change –
Yes an’ walls can come tumbling down!

Governments crack and systems fall
’cause unity is powerful –
Lights go out – walls come tumbling down!

Full video of the song here. Boy, does it bring back the 80s and memories of the twilight of the Cold War.  For those of you celebrating in Berlin tonight, enjoy!

Tommy Crocker Guest-Blogging

by Kevin Jon Heller

Tommy Crocker, who teaches constitutional law and criminal procedure at the University of South Carolina School of Law, will be guest-blogging with us for the next two weeks.  Tommy writes on a variety of issues, including torture and the First Amendment.  His work has appeared the UCLA Law Review, the Texas Law Review, Fordham Law Review, and the peer-reviewed Law & Literature.  He is currently working on a book project in constitutional theory that is provisionally entitled, The Constitution as Ethical Life.

I have no idea what Tommy intends to blog about — but I know that, whatever it is, it will be interesting.  On behalf of all of us at OJ, welcome, Tommy!

Do ICJ Judges Need Their Own Law Clerks?

by Julian Ku

Following up on Ken’s post (whose views I totally endorse, by the way), I wanted to flag one UN budgetary issue of particular interest to our readers. As the NYT article details, UN budget negotiators will battle over whether each of the ICJ’s 15 judges should have a law clerk. They currently share nine.  Former ICJ President Roslyn Higgins made an argument for law clerks back in 2006 here.  As a budget item, this is not exactly a huge amount of money. So I can’t imagine the cost of six extra law clerks a year making a big difference, so why not spring for it? There are worse things the UN could spend its money on (like, say, $23 million murals).

But as an institutional matter, it is an interesting question.  Is judging on the ICJ, especially at a rate of four or five cases a year, a job that really requires law clerks?  Does it need full time clerks?  I am no ICJ expert, so I welcome thoughts from our readers on this question.

UN Budget Battles

by Kenneth Anderson

The New York Times reports on budget season at the UN and various battles hotting up.  It’s a good piece by Neil MacFarquhar, dated November 7, 2009.  As the article says, that fact that

it costs the United Nations an average of $2,473 per page to create every single document in its six official languages, while outside contractors complete the same work for around $450, prompts diplomats to accuse the organization of running amok during a global financial crisis.

That’s the opening.  It is followed by an excellent discussion, sourced with a lot of conversations with participants in this year’s budget negotiations, of the tugs and pulls of the UN budget, the issues of add-ons from the Secretariat, what the appropriate budgetary contribution of the BRICs should be in relation to developed but much smaller economies (China versus Canada, for example), and the moral hazard problem of small non-paying nations willing to impose larger contributions on the minority of paying states.  Other things too.  It’s one of the best news pieces in the English language press on this issue in the last couple of years; short, well researched and sourced, highly recommended. (I put up a longer and more opinionated version of this at Volokh – I think Julian refers to it above.)

The Ethics of Serving as Appointed Counsel (Updated)

by Kevin Jon Heller

Both Martin Holterman and Sasha Greenawalt have questioned my repeated — and quite deliberate — insistence that “no competent barrister will accept appointment as stand-by counsel under these circumstances,” and that any barrister who does accept the appointment will thus “be interested in one thing and one thing only: the free publicity that comes with it.”  Martin’s comment is the most specific, so I will repeat it here:

I have to say I am a little troubled by your pre-emptive strikes against the appointed counsel. This seems well beyond the bounds of fair play among jurists, not to mention entirely uncalled for. Whoever the Tribunal will appoint is not the bad guy, in fact, he/she will be one of your guys, and does not deserve this kind of abuse.

Four months is far from ideal, but it is enough for counsel to function well enough to safeguard the accused’s right to a fair trial. How well counsel ultimately ends up functioning depends to a large extent on your client’s cooperation. Regardless, there’s absolutely no excuse for calling this person a hack just for taking on the job.

This is a very fair position to take, but I disagree with it.  The “easy” case, for me, is the one that we are presented with in Dr. Karadzic’s case: a barrister who accepts appointment knowing that he will have less than four months to prepare for trial.  Others might disagree, but I simply do not believe that four months is anywhere near sufficient preparation.  This is an enormously complicated case, involving 11 counts, four separate JCEs, and issues of command responsibility.  The prosecution intends to call hundreds of witnesses to testify concerning dozens of municipalities, and its evidence consists of more than 1.2 million pages of documents.  And that is just the prosecution’s case — the defense will also likely call hundreds of witnesses and make use of hundreds of thousands of pages of documents.  So I simply refuse to believe that even the most skilled barrister could be ready for trial by 1 March 2010 — in which case it would be fundamentally unethical for a barrister to accept the appointment under the terms set by the Trial Chamber.

That is particularly true given the likelihood that Dr. Karadzic will refuse to cooperate with stand-by counsel, much less stand-by counsel who has become appointed counsel.  Martin is absolutely right that “[h]ow well counsel ultimately ends up functioning depends to a large extent on [Dr. Karadzic’s] cooperation.”  But that is beside the point in terms of whether it is ethical for a barrister to accept the appointment…

MarineTraffic.com

by Kenneth Anderson

I’m slightly embarrassed to interrupt the flow of the serious academic discussion underway, but I found this a fascinating site.  MarineTraffic.com, with a live GoogleEarth map of marine shipping worldwide.  This distracted me for half an hour when I was supposed to be re-writing a chapter called … The Non-Falsifiable United Nations.  (I now know way more than I should about shipping leaving the West Coast and Hawaii.  And of course it will all be outdated in a few hours.)

A Response to Katherine Stone

by Alvaro Santos

I would like to thank Kathy Stone for commenting on my Article and agreeing to participate in this symposium. She has sharply characterized the main arguments of my paper and made two very helpful criticisms. Both of these are great prods for future work. Let me respond to each of these suggestions in turn.

Stone is right that I devoted most of my attention analyzing Doing Business’ main agenda, which I called substantive flexibility: increasing employers’ ability to fire, hire, and set working conditions, thereby decreasing employers overall labor costs. But let me clarify that I do not think labor flexibility can be reduced to an argument about labor costs. Indeed, my typology aimed to situate the DB project in the broader spectrum of what labor flexibility may include and to show just how narrow the DB objectives are.

DB claims that more flexibility (for the employer) leads to an adaptable firm. But I argue that this concept of adaptability has little to do with organizational flexibility, related to firms’ ability to respond to market conditions by changing their mode of production and innovating in their business model. One can imagine an employer who enjoys considerable flexibility in the employment relationship, such as a maquiladora plant, and nevertheless operates under a rigid production process of command-and-control, where workers repeatedly deploy a very limited set of skills.

I argued in the paper that overall labor-cost reductions are not necessarily conducive to organizational flexibility. In my visits to firms and factories in Mexico, I observed that it was generally the big, leading firms (which fully participate in the global economy) that had experimented with newer models of business organization like total quality management. They often enjoyed more functional flexibility, as their employees were trained and able to perform multiple tasks. Interestingly, these firms remain in what I called the employee-friendly labor regime, where enforcement rates and labor costs are higher than in the de facto deregulated employer-friendly regime….

Bodansky: Update from Barcelona Climate Change Negotiations

by Daniel Bodansky

[Daniel Bodansky, University of Georgia School of Law and OJ guest blogger, sends this second dispatch on the state of the Climate Change talks leading up to the Copenhagen Conference. Professor Bodansky will also be blogging from Copenhagen here at Opinio Juris in December.]

This week, the chair of the negotiations and the executive secretary of the UN climate change secretariat both confirmed what had been obvious to most knowledgeable observers for some time: the Copenhagen Conference in December will not be able to adopt a new climate change treaty. Instead, they suggested, as a goal, adopting a series of COP (conference of the parties) decisions, which would be “politically” but not legally “binding” and would form the basis for a treaty to be negotiated post-Copenhagen.

Although a political outcome in Copenhagen should be easier to achieve than a legal agreement, it will still be difficult and will require significant compromises by all sides. The basic elements of the Copenhagen outcome could include:

• A long-term goal, expressed as a limit to global temperature increase (e.g., 2 degrees), greenhouse gas concentrations (e.g., 450 parts per million) and/or long-term emission reductions (e.g., emission reductions of 50% by 2050) .
• Mid-term emission reduction targets for developed countries, expressed either as an absolute number (e.g., reductions of 20% by 2020) or as a range (e.g., 16-23%).
• Policies and measures by major developing countries such as China, India, Brazil, Indonesia and South Africa.
• Financial commitments/pledges by Western countries to assist mitigation and adaptation actions by developing countries.
• Decisions addressing adaptation, technology transfer, REDD (reductions in emissions from deforestation and degradation), mechanisms (possibly including new rules for the CDM and for land-use change), and capacity-building.

Given the current state of the negotiations (which remain bogged down), an outcome along these lines remains a very ambitious objective for Copenhagen, even if it is reflected “only” in COP decisions rather than in a new legal agreement.

How much does the legal status of the Copenhagen outcome matter?

Robotics and the Law Panel at Stanford Law School

by Kenneth Anderson

If you are going to be around Palo Alto next Thursday evening, you might consider attending a panel discussion on robotics and law at Stanford Law School.  I’ll be on a panel alongside some very interesting and knowledgeable folks taking up varied aspects of robotics (my particular interest is robotics and war, but the panel will be considering many areas of robotics).  The particulars are below the fold.  (I’ll also be giving a lunch talk/discussion that same day sponsored by various student organizations at SLS specifically on robotics and armed conflict.) Continue Reading…

A Response to Alvaro Santos by Katherine V. Stone

by Katherine V. Stone

[Katherine V. Stone is a Professor at UCLA School of Law]

In Labor Flexibility, Legal Reform and Economic Development, Alvaro Santos presents an analysis and critique of the World Bank’s Doing Business indicators for labor regulation.  Those indicators have been used to promote an agenda of legal reform dedicated to eliminating worker protections and rights throughout the developing world.  Santos presents a multi-pronged critique directed at the central tenet of the DB project – its assertion that labor market flexibility is the elixir of economic growth.

Santos does an excellent job of decentering and problematizing the concept of flexibility as it is used by the DB project.  For example, he usefully distinguishes three types of flexibility-formal, substantive, and organizational-and shows that the DB claim in the labor area is about substantive flexibility, not formal or organizational flexibility.  Hence the indicators applaud the rigid at-will rule of the common law countries and decry the flexible just-cause standards found in many civil law regimes.  This move alone is valuable because it delinks the DB labor project from the rhetorically powerful but vastly oversimplified claims of the legal origins theoretical framework that underlines the DB project, in which economic progress is equated with common law regimes (seen as “flexible”) and economic backwardness is associated with civil law regimes (seen as “rigid”).

Even more useful is Santos’ demonstration that by focusing only on formal written law, the DB indicators badly mischaracterize the labor law regimes they purport to describe.  Many factors make the law “in action” depart from the “law on the books,” as legal sociologists have long known.  Santos uses examples from Mexico to show that the DB’s characterization of Mexican labor law as rigid ignores several important aspects of the operation of the law in Mexico-the ability of collective bargaining and labor courts to modify seemingly rigid terms of employment, gaps in enforcement of labor rights that insert de facto flexibility into otherwise rigid labor laws, and informal norms that have developed in some sectors that deviate from the formal legal rules.  As one example, he shows the many ways Mexican employers have developed to hire employees on fixed term contracts even when such forms of employment are formally prohibited.

Santos’ most interesting claim is that there can exist multiple regimes of labor regulation exhibiting different combinations of flexibility and employment protection within a single country.  He uses Mexico as an example, and argues that there are three regimes present-an employee-friendly regime (i.e., “rigid” in the DB typology) in the manufacturing and energy sectors, an employer-friendly regime (i.e., DB-flexible) in the restaurant, transportation, communications, and professional sector, and an unregulated free-for-all in the informal sector of retail commerce, street vendors, and domestic services.  He points out a tension in the DB project in that it advocates relaxing the protections for the employee-friendly sector, but increasing regulation in the informal sector.  He also shows that wages have declined substantially in the employee-friendly sector, contradicting claims that employment protection generates high and sticky labor costs.

In these and other respects, Santos illuminates the ideological nature of the seemingly neutral Doing Business labor indicators and shows how those indicators neither reflect an empirically accurate portrayal of the labor regimes they purport to describe nor provide an analytically sound program for reform.  But perhaps his most important contribution is to show that by foregrounding flexibility and relying on seemingly neutral indicators, the DB reform agenda obscures its true objective-to alter the distribution of power in the workplace.  As he says, when flexibility is enhanced for employers, it is diminished for employees.

Santos’ argument would be strengthened if he delved more deeply into the issue of flexibility.   I have two suggestions in this regard.  First, Santos is too willing to trace the DB project’s focus on flexibility as an issue of labor costs.  Like the DB project he criticizes, Santos considers flexibility in terms of employers’ ability to hire and fire, and to adjust labor time, compensation and working conditions unilaterally.  He claims that the DB project does not focus on the role of flexibility in firms’ capacity to innovate.  While this may be true of the narrow DB project, the larger debate over flexibility in labor law has been animated by arguments that firms need more operational and organizational freedom than current labor laws provide.  Operational flexibility is advocated not only to enable firms to engage in short term cost reduction measures, but also to enable them to deploy new production methods and promote innovative product development.  Thus, it is not a sufficient critique of the DB indicators that some of the programs they advocate do not, in fact, result in short term cost reduction.  I believe that, using Santos’ typology, flexibility’s goal is not only substantive flexibility, but organizational flexibility as well. If Santos were to consider flexibility from this larger perspective, he might draw somewhat different conclusions about how to formulate the relationship between flexibility, protection, and economic growth.

My second suggestion is that in discussing labor cost flexibility, Santos should say something about the distribution of risk.  Santos contends that when employers have more flexibility over hiring, firing, compensation, and working hours, employees have less.  Yet his analysis shows how labor market regimes allocate not “flexibility” in the abstract, but actual risks and rewards.  From this perspective, the opposite of labor cost flexibility is not so much rigidity, as the DB project suggests, but rather it is vulnerability.  Hence, Santos’ argument shows that by enhancing employers’ flexibility in the area of labor costs, the DB proposals heighten employees’ vulnerability.

Labor Flexibility, Legal Reform, and Economic Development

by Alvaro Santos

[Alvaro Santos is an Associate Professor at Georgetown University Law Center]

The current global financial crisis has provoked intense criticism of the regulatory framework for financial markets. Financial market flexibility, once considered the key to successful financial institutions and economic growth, has now come under intense scrutiny. In contrast, labor market flexibility is still promoted by scholars and international policymakers as an essential part of the recipe for economic development. I argue that the predominant understanding of labor flexibility is misguided and needs to be revised. To illustrate why, I undertake a critical examination of labor flexibility as developed by a leading World Bank project, called “Doing Business.” I argue that the Doing Business project mischaracterizes countries’ labor regulations by failing to consider the full range of legal sources, surveying mostly the law on the books, and remaining blind to the realities of lack of enforcement and rampant economic informality.

More importantly, Doing Business promotes a binary understanding of flexibility that fails to capture the relational character of legal entitlements. Proposed legal reforms in the direction of “flexibilization” can therefore be both costly and ineffective. As an alternative, I develop a framework which, incorporating insights from comparative law and legal theory, proceeds in two steps. First, my framework undertakes a doctrinal assessment of the respective rights, duties, and privileges of employers and employees in the labor market, and asks whose flexibility is enhanced. Second, my framework pays attention to the link between the formal and informal economic sectors. Using the examples of the United States and Mexico, I illustrate how this new framework can lead to a better sense of the relationship between labor law and a country’s economy, and how this framework can be used as a better map for regulatory reforms.

Yeah, It’s Just Like That.

by Kevin Jon Heller

The depths to which the extreme right will sink to oppose offering quality healthcare to all Americans really knows no bounds:

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Disgusting.  Absolutely disgusting.

P.S. In case you can’t read the sign on your computer, it reads “National Socialist Health Care: Dachau, Germany – 1945.”

What a Difference a Journalist Makes…

by Kevin Jon Heller

Compare the following.  First, Reed Stevenson for Reuters:

Yugoslavia tribunal judges ordered legal counsel for former Bosnian Serb leader Radovan Karadzic and adjourned his trial until March 2010 to give the new defence lawyers time to prepare.

Karadzic has been acting as his own attorney and has been boycotting the trial which charges him with some of Europe’s worst atrocities since World War Two.

Karadzic can continue to represent himself, but will have to work with the appointed lawyer, according to the ruling by the International Criminal Tribunal for the former Yugoslavia.

Second, Marlise Simons for the New York Times:

Judges ordered Thursday that a lawyer be imposed on Radovan Karadzic, the former Bosnian Serb leader on trial in The Hague for war crimes and genocide, but halted the trial until March 1, to give a lawyer time to get ready.

Their decision effectively gave Mr. Karadzic, who has insisted on representing himself, almost four additional months to prepare his defense, which is more than an appeals court gave him when it ordered the case to begin.

[snip]

Prosecutors have warned the court that it cannot allow Mr. Karadzic to control the proceedings, and have urged the panel of judges to impose lawyers on him, name a standby counsel or take him to court using physical force.

The tribunal, which deals with war crimes from the conflicts in Bosnia, Croatia and Kosovo, has never compelled anyone to come to court by force.

Judges have now called for a standby counsel, who they said would step in if Mr. Karadzic obstructed the process in any way after March 1. Until then, they said, he can continue his defense by filing motions or requests.

I would quibble with Simons’ use of “imposed” in the first sentence, but her article otherwise makes clear that Dr. Karadzic has not lost his right of self-representation, that the Trial Chamber rejected the prosecution’s request for a lawyer to be assigned to him, and that he is under no obligation whatsoever to work with standby counsel. Stevenson, by contrast, has no idea what he is talking about…

Kenya’s Post-Election Violence: Case Headed to the Hague

by James Gathii

[Professor James Gathii, provides this timely insta-background on today’s decision by the the ICC prosecutor to open an investigation into the 2007 post-election violence in Kenya. Professor Gaathi teaches at Albany Law School, where he is the Associate Dean for Research and Scholarship and Governor George E. Pataki Professor of International Commercial Law. He publishes extensively on legal developments in sub-Saharan Africa.]

The International Criminal Court’s Chief Prosecutor Luis Moreno-Ocampo on November 5, 2009 informed Kenyan President Mwai Kibaki and Prime Minister Raila Odinga that he had decided to request the judges of the International Criminal Court to open an investigation into Kenya post election violence following the disputed December 2007 elections in that country. The ICC Prosecutor has been monitoring the situation in Kenya, which ratified the Rome Statute in March 2005, since February 2008 when his office issued a press release following the eruption of ethnically charged violence in late December 2007. See statement here.

Since then individuals, non-governmental organizations and foreign governments have urged the ICC Prosecutor to initiate an investigation following the deaths of over 1,000 people; the displacement of over 300,000 and numerous violations of human rights and the commission of crimes that fall within the jurisdiction of the international criminal court. Those violations and crimes are extensively detailed in two reports.. . .

Extra Time for Dr. Karadzic — and Stand-By Counsel

by Kevin Jon Heller

As most readers probably know by now, the Trial Chamber has decided to adjourn Dr. Karadzic’s trial until 1 March 2010 and appoint stand-by counsel who will step in if, at that time, Dr. Karadzic continues to boycott the trial.  Here are the relevant paragraphs from the decision:

19. On the issue of continuing the trial in the absence of the Accused, and without any counselnto represent him, the Prosecution has stated that it does not exclude the possibility of proceeding in such a manner but that its position is that it is in the interests of justice to assign counsel to the Accused so that he is represented in the courtroom should he continue to absent himself from the trial. The right of an accused to be present during his trial is, indeed, a right that can be voluntarily waived by that accused and there may indeed be circumstances in which a Trial Chamber could decide to proceed in his absence, even if an accused were not represented by counsel. However, there are problems associated with that course which, in the present case, lead the Chamber to conclude that it would not be in the interests of justice to proceed with the presentation of evidence by the Prosecution in the absence of the Accused or counsel to represent him.

20. In the first place, the truth-seeking function of the trial process would be deprived of defence evidence which may go to challenge the evidence adduced by the Prosecution. Secondly, an important function of the trial process, as originally envisaged by the Security Council of the United Nations in the very creation of the Tribunal, was to seek to further peace and reconciliation amongst and between the various factions involved in the conflict in the former Yugoslavia. To allow the Trial Chamber to hear and assess only half of the evidence, albeit from the party charged with the burden of proving its case beyond reasonable doubt, would be to deny the opportunity the trial process may have to engender such peace and reconciliation as may be gleaned from a full hearing of the evidence brought by both the Prosecution and the Accused.

[snip]

24. The Chamber recognises that if counsel is to be appointed to the Accused, such counsel will require some time to become familiar with the case before he or she can act in the interests of the Accused at trial. It is certainly true that this case is a voluminous one and that counsel will have many thousands of pages of documents to read so that he or she can properly cross-examine the witnesses brought by the Prosecution. No counsel, not even the most experienced and efficient, could reasonably be expected to be in a position to assist the Accused and, by extension, the trial process, without sufficient, albeit defined, preparation time. Thus, there will need to be a delay of some months before the trial can resume, if it does so with a form of appointed counsel.

A Response to John Knox by Marc Limon

by Marc Limon

[Marc Limon is Counsellor of the Mission of the Government of the Maldives to the United Nations, in Geneva, Switzerland]

As Professor Knox recognises in his paper, international human rights law is essentially concerned with the relationship between an individual and his or her own State.  This makes it difficult to usefully leverage human rights law in the context of global climate change, beyond noting that, irrespective of their level of responsibility for global warming, all States retain an obligation to protect the human rights of their citizens from its negative impacts and to do so in a way that is consistent with the full enjoyment of human rights.

For most developed countries in the Human Rights Council, that should be (and indeed, in their mind, is) the end of the matter. For them, conceding that climate change undermines a range of internationally protected human rights is fine, insofar as it serves as a reminder to developing countries that a) they should not use globalised phenomena like climate change as an excuse for backsliding on human rights, and b) countries which observe and respect human rights (especially civil and political rights) are inherently more resilient and adaptable to all crises-including climate change.

However, for most developing country delegations in the Human Rights Council, especially delegations of countries that are most vulnerable to the impacts of climate change, this traditionalist reading of human rights law is not the end of the matter.  These delegations argued, in various interventions during the March and June sessions of the Council, that it is fundamentally unfair, in the context of a globalised concern such as climate change, to suggest that relevant human rights obligations lie solely with the State wherein harm is suffered.  Rather, one must strike a balance between drawing attention to and clarifying human rights obligations applicable within vulnerable States on the one hand (i.e., domestic application), and drawing attention to and clarifying extraterritorial human rights obligations on the other-especially obligations applicable to those countries that bear the major responsibility for having caused climate change.  These countries argue, rightly, that to fail to strike such a balance would be to consign vulnerable States to an ultimately futile attempt to protect human rights in the face of a problem that they cannot control and that will, in the end, consume them.

The question, then, is whether it is possible to strike such a balance.  Can human rights obligations be applied extraterritorially, and can accountability permeate national borders? There is no doubt that attempts to answer and respond to such questions will be extremely difficult.  However, developing countries at the Human Rights Council have proposed a number of options.

One option, which Professor Knox rightly presents as the most practicable, is to strengthen jurisprudence around the concept of the “duty of international cooperation.”  Unfortunately, there are doubts as to what real impact this course of action would have on international climate change policy.  A second option is to build on the idea that while it may be the case that States have a primary responsibility to promote and protect human rights within their jurisdiction, other countries carry a concurrent obligation not to interfere with the enjoyment of human rights elsewhere.  For example, the Maldives State may be responsible for protecting the human rights of Maldivians, but other States also have a responsibility to ensure a permissive international environment.  The third option is to go against the logic presented in the OHCHR report and Professor Knox’s paper, by arguing that climate change impacts can indeed be conceived as human rights violations-with identifiable victims and perpetrators (even in a transnational context).  According to this view, the power to protect human rights in the face of climate change rests primarily with large emitting States-States which have undertaken legal commitments to reduce their emissions to “safe levels” (levels consistent with the preservation of the environment and consistent with the full enjoyment of human rights)-and thus these States must bear a responsibility for fulfilling human rights in vulnerable States.  If they renege on that responsibility, they are guilty of violating human rights and should be held accountable.

All three of these options were advocated during the dedicated panel debate on human rights and climate change that took place during the June 2009 session of the Human Rights Council. The question now facing the main sponsors of that debate, and of the Council’s earlier resolutions on human rights and climate change, is if and how these options should be further explored.

In the longer term, the difficulties posed by the application of human rights law to harm caused by climate change are indicative of a broader systemic tension between the traditional state-centric conceptualisation of human rights, and the realities of individual connectivity in the globalised world.  In the 21st Century, a given State no longer holds the sole power to shape the life of its citizens or to determine their welfare.  Rather, the phenomena which determine the degree to which an individual can enjoy the full range of human rights are increasingly international or extraterritorial in nature.  This tension is visible in a range of issues currently taking up the Human Rights Council’s time, such as the human rights implications of the global food crisis, or the human rights implications of the global financial crisis.  However, of these crises, climate change, with its global character and basis in unequal and even destructive power relationships, is perhaps the globalised challenge which most acutely draws attention to the need for a thorough reconceptualisation of a body of law developed in the post-War world of nation States and unassailed sovereignty.

Climate Change and Human Rights Law

by John Knox

[John H. Knox is a Professor at Wake Forest University School of Law]

My Essay tries to answer a simple question (simple to state, anyway):  What duties, if any, does human rights law place on states to address climate change?  At first, the answer may seem equally simple.  It may seem evident that climate change already violates human rights, including rights to life, health, and property.  As the Arctic warms, survival has become more difficult for the Inuit, for example, and shrinking glaciers endanger mountain communities that depend upon them for water.  If climate change continues unabated, the effect on human rights will grow in scope and severity.  To take the most dramatic example, rising sea levels will force millions of people to abandon their homes and, eventually, require the evacuation of small island states.  Since climate change threatens such massive interference with human rights, it may seem obvious that states must try to ameliorate its effects.

It is more difficult than it may first appear, however, to nail down whether and how climate change triggers obligations under human rights law.  For the most part, that law sets out vertical duties that states owe to their own people, not diagonal duties that they owe to residents of other countries.  There can be no doubt that states have vertical obligations to do what they can to protect their own people from the effects of climate change.  By themselves, however, those duties may not go far enough.  Because of our country’s wealth, size, and location, Americans are very unlikely to suffer harm from climate change as rapidly or drastically as residents of the Maldives, for example, one of the lowest-lying countries in the world.  At the same time, the Maldives cannot protect its citizens from climate change by itself.  Does human rights law impose obligations on the United States to help the Maldivians and others like them?  Are states’ duties under human rights law diagonal as well as vertical?

For the last two years, a group of small island states led by the Maldives has successfully pressed the UN Human Rights Council to consider the implications of climate change for human rights.  In response to a request by the Council, the Office of the High Commissioner for Human Rights (OHCHR) published a report in January 2009 concluding that climate change gives rise to obligations on states that extend not only to their own residents, but also to people living in other countries.  Not all states have accepted this conclusion, however, or its possible implications.

My Essay examines the connection between climate change and human rights law in light of the large and rapidly growing jurisprudence of human rights bodies on environmental rights.  The jurisprudence imposes strict procedural requirements on states, such as a duty to carry out environmental impact assessment, but it largely defers to states’ substantive decisions on environmental standards.  That approach makes sense in the context of the cases that have developed it, which have involved environmental costs and benefits felt within a single polity, which can decide for itself how to balance them.  The approach does not easily apply to harm such as that caused by climate change, however, whose causes and effects concern many different polities.

I argue that the solution is to look to the duty of international cooperation, which requires states to try to act as a single global polity to address the global threat of climate change.  By providing a basis for the application of the environmental human rights jurisprudence, this approach would allow states some flexibility as to the substance of their joint decisions, but only if they follow procedures designed to ensure full, well-informed participation by those most affected.  Moreover, the substance of decisions that result from such processes would not be entitled to complete deference: under no conditions could states allow climate change to destroy the human rights of the most vulnerable.

This issue continues to percolate through the UN human rights system.  In response to the OHCHR report, the Human Rights Council adopted a resolution in March, at its tenth session, encouraging its special rapporteurs and other special mandate-holders to consider climate change within their mandates.  At its next session, in June, the Council held a panel discussion on human rights and climate change, at which a surprisingly large number of governments made statements.  There seemed to be something close to a consensus among them that human rights law does have something to say about climate change.  What exactly that is will become clearer over time . . . although perhaps not quickly enough to help to avert the coming global disaster.

International Law and the Supreme Court

by Roger Alford

My friends David Sloss, Michael Ramsey, and Bill Dodge are the editors of a remarkable forthcoming book on The U.S. Supreme Court and International Law: Continuity or Change?. They have gathered an all-star cast of scholars to address the role of international law in Supreme Court jurisprudence from 1860 to the present. The book will be published by Oxford University Press in 2010.

There will be a conference to discuss the draft chapters this Friday and Saturday, November 6-7, at Santa Clara Law School. If you are in the area, I’m confident you will find the event enriching. (You can register here.) I especially like the division of the topics, focusing on four major periods, and dividing chapters within those periods by treaties, customary international law, and interpretation. (My chapter focuses on the role of statutory and constitutional interpretation from 1900-1945.)

I have read many of the draft chapters and there is much to praise. Here’s how Sloss, Ramsey and Dodge summarize the project:

During this conference, scholars will evaluate recent Supreme Court decisions involving international law against the backdrop of eighteenth, nineteenth and twentieth-century precedents and historical developments. The main questions to be addressed are: In what respects do the twenty-first century decisions represent a break from the past? In what respects are those decisions consistent with earlier practice and precedents? From a historical perspective, how can we account for both the continuity and the discontinuity?

Worst of all, in lieu of attending this amazing, wonderful, intoxicating conference on international law and the Supreme Court, I will be attending this event instead. Alas, to every thing there is a season, a time to mourn and a time to dance.

A Response to Mark Drumbl

by Alexander K.A. Greenawalt

Let me thank Mark Drumbl once again for taking the time to provide his thoughtful response to my Article.

As Mark and I agree on many points, I will focus on what appears to be the clearest point of difference between us:  our respective answers to the practical question of how the ICC should instantiate its complementarity principle.   Absent contrary guidance from the Security Council, I support ICC prosecutor Luis Moreno-Ocampo’s targeted insistence on conventional prosecutions for Kony and the remaining suspects for whom the ICC has issued warrants.  Mark, as I understand him, would instead have the ICC apply the “light touch” to complementarity that he has advanced in his book Atrocity, Punishment, and International Law.   The fact that I differ with Mark on this point is somewhat surprising given that (1) I believe that Mark has developed a compelling normative framework for evaluating state responses to mass atrocity, (2) I agree that his approach is defensible as a valid interpretation of the ICC’s statute, and (3) I believe that the prosecutor’s stated policy is uncompelling and even incoherent if viewed as a general normative framework for evaluating state responses to mass atrocity.  I nevertheless reluctantly endorse Moreno-Ocampo’s insistence on traditional prosecutions for the accused because I am skeptical of the ICC’s ability to safeguard its legitimacy while making the kinds of judgments that Mark’s approach demands.  In other words, my position hinges on distinguishing the specific institutional setting of the ICC from a general normative framework for transitional justice.

To elaborate on the source of my unease, I proceed from the realization that legal responses to mass atrocity often require compromise and sacrifice.  I am enough of a retributivist to acknowledge that there is something inherently tragic and regrettable in the prospect that a mass murderer like Joseph Kony will evade the punishment that is generally deemed appropriate-in Uganda and elsewhere-for offenses of the magnitude he has committed.  But I agree that other considerations-including the desire to end or prevent war, the interest in fostering societal reconciliation, and the difficulty of processing overwhelming numbers of perpetrators-can override individual desert-based considerations and justify the sorts of compromises that Uganda has explored.

I am skeptical, however, that the ICC can develop a judicially manageable framework that does justice to the complexity of the considerations that inform these compromises.  Because the ICC itself has targeted only a handful of LRA suspects, and thus does not preclude alternative measures for most perpetrators, the specific case for dropping the ICC warrants emphasizes that Kony’s personal participation is necessary to a peace agreement that will both save lives and facilitate the broader accountability scheme.  Is the ICC an appropriate venue to evaluate the merits of that argument?   Are the Court’s prosecutor and judges competent to assess the chances of Uganda apprehending Kony absent a peace agreement, or the probability that Kony will honor his side of the bargain?   How should the analysis balance the incommensurable goals of protecting human life and pursuing criminal accountability?   One irony of a more permissive complementarity test is that it requires adjudicating these difficult determinations through precisely the sort of conventional trial procedures that Mark would deemphasize for more traditional questions of criminal guilt and innocence.

Once the door to compromise has opened, moreover, there is no obvious stopping point. There may be situations where the best case scenario falls short of even Mark’s relatively deferential standards.   For example, deference to a dictator’s imposition of blanket amnesty paired with some minimal truth-telling process might be necessary to prevent imminent atrocities, even though the arrangement might fail some of Mark’s preferred criteria, such as those pertaining to good faith and democratic legitimacy.  Should the specific guidelines still constrain in that circumstance, or should the Court revert to a general choice-of-evils analysis?  To some degree, the ICC can protect itself against misjudgment by affording states ever broader deference to judge these matters by themselves, but doing so risks ignoring that the ICC exists in large part to impose limits on state discretion.

Otherwise, I agree with Mark that we should resist simplistic dichotomies between law and politics, both with respect to the ICC and otherwise.   I also agree with many of his more specific observations along these lines, several of which I make or at least hint at in my Article.  (I will say parenthetically, however, that I am not convinced the evidence of Ugandan control over the ICC is quite as strong as Mark suggests).  Part of my argument is that a more accurate account of the ICC’s political authority raises special problems for the Court given that the ICC’s standard justification-invoked repeatedly by its supporters, prosecutor, and judges-so emphatically rejects the idea of the ICC as a political actor.

I also appreciate and agree with Mark’s observations about the Security Council.  In general, I am focused less on the Council’s de jure authority (which I acknowledge) than on the body’s ability to address the ICC’s legitimacy deficit.  If the complementarity determination exceeds the ICC’s own institutional abilities, then perhaps more active Council guidance should be welcomed rather than feared.

Many thanks again to the Virginia Journal of International Law and Opinio Juris for organizing what, for me at least, has been a stimulating and thought-provoking exchange.

A Response to Sasha Greenawalt by Mark A. Drumbl

by Mark Drumbl

[Mark A. Drumbl is a Professor at Washington and Lee University School of Law]

In Complementarity in Crisis: Uganda, Alternative Justice, and the International Criminal Court, Professor Alexander Greenawalt strikes a cautionary note. He underscores that the ICC cannot on its own effectively serve transitional justice interests. It needs help. In the end, Sasha concludes that “the Ugandan peace process reveals the [ICC] to be a promising but unstable institution, one whose legitimacy may ironically depend on help from external stakeholders, including the very political actor – the UN Security Council – whose importance the Rome Statute was designed, in part, to diminish.”

I am broadly sympathetic to Sasha’s concerns; and in agreement with his analysis and of the important discursive space he creates within the field. However, at times I had difficulty discerning the thread of his argument. Other than generically suggesting that Security Council “guidance … may be desirable in a great number of cases,” I also hope that Sasha might provide more in the way of practical guidance regarding how the ICC should instantiate its complementarity principle, which animates several key portals of the Rome Statute, in particular admissibility (Article 17) and interests of justice (Article 53).

I think it important not to essentialize the Security Council as being all about politics. The Council can act in a quasi-judicial capacity, whether it comes to declaring an act as violative of Article 39 of the Charter, or deliberating on the kinds of forcible and non-forcible violations that might be apposite. Moreover, it is important not to overstate the ICC’s supposed independence from the Security Council. After all, the option of referral from the Security Council remains; as do Article 16 deferrals. Looking ahead, were a crime of aggression eventually to be defined in the Rome Statute, Security Council authorization foreseeably could be a prerequisite to the exercise of jurisdiction over this crime.

Nor is the ICC all about law. Whatever the intentions of the drafters of the Rome Statute, states like Uganda and the DRC have neatly managed the ICC, just like Rwanda has neatly managed the ICTR, to focus on the atrocities committed by rebel groups only (or in the case of Rwanda, of the Hutu génocidaires only). President Museveni does well at playing with the ICC, co-opting it, massaging it, shunning it, and integrating it into national life as a tool of domestic politics. And the ICC is willing to dance with him, even haltingly staccato. After all, without his political cooperation, there would be no prosecutions or, in the event any defendants are brought into custody in the Ugandan situation, limited ability to generate the requisite evidence to convict. Regardless of the etymology of the institutions (namely, whether created by international treaty or Security Council resolution), the role of their chief prosecutors is much more about politics than it is about law. Although Sasha is right that the ICC may involve legal actors implementing legal rules, I would add that in this process the ICC often acts as a political actor implementing policy. Furthermore, the ICC represents the zenith of liberal legalism as a response to terrible communal violence. In this regard, and to crudely paraphrase Cardozo, the ICC is a creative project, not a voyage of discovery.

Sasha is skeptical of the value of ex ante guidelines to clarify how complementarity might inform the admissibility of cases. He argues that guidelines are not useful. He needs to make a stronger case here. I have argued elsewhere, in a point that Sasha discusses, that a light touch to complementarity (as articulated through a qualified deference standard), would better serve overall justice interests. In any event, developing guidelines, even simply to frame a conversation, would promote transparency, dialogue, and some predictability. Each of these elements is relevant to the legitimacy of law or policy, though certainly excessive rigidity or adherence to faulty guidelines is undesirable. These guidelines could equally apply whether the Security Council or the ICC is the entity tasked with making the admissibility determination. A broader analytic heuristic that accords greater deference to the local might expand our vocabulary in assessing the merit of post-conflict accountability. Currently, our focus is narrow and hews closely to the singularity of trial justice. Instead, we should push for a much broader lexicon of transitional justice.

Sasha delicately hints at this near the end of his Article, but I think there is more to the expansion of international criminal law than simply the inexorable épanoiussement of substantive law. International criminal lawyers have a vested bureaucratic interest in the growth of the field. Expansion marketizes our skills and expertise, which are now rendered a necessary element of every post-conflict transition everywhere. We lawyers have become indispensible. Not an indispensible nation in a Clintonian sense, but certainly an indispensible epistemic community. Unless this indispensability is challenged, it remains doubtful to me that the ICC ever will pursue a light touch to complementarity and, in turn, alternative justice.

Bodansky: Letter from the Barcelona Climate Change Talks

by Daniel Bodansky

[Daniel Bodansky, University of Georgia School of Law and OJ guest blogger, sends this dispatch on the state of the Climate Change talks leading up to the Copenhagen Conference.  Professor Bodansky will also be blogging from Copenhagen here at Opinio Juris in December.]

Barcelona, 4 November 2009

The UN climate change negotiations resumed on Monday in Barcelona, after only a three week hiatus since the last round in Bangkok. Between the official negotiations, the parallel political meetings of the major economies forum (MEF), the Commonwealth, and APEC, the numerous bilaterals (including the upcoming Obama visit to China), and the off-line dialogues convened by Denmark, the negotiating process will essentially be non-stop between now and when the Copenhagen Conference begins on December 7.

But progress remains elusive at best. The disconnect between the political urgency surrounding the climate change issue among political leaders and the insular world of the UNFCCC negotiations is growing ever more striking.

On the one hand, most of the key countries or groups – the EU, Japan, China, Brazil, India, South Africa, Indonesia and Australia – have either adopted or appear near to adopting domestic climate change policies. And although enactment of climate change legislation by the United States remains in doubt, a major bill has already passed the House of Representatives and the Senate is now beginning its consideration of similar legislation. So, from the perspective of national climate change policies, prospects have never been brighter. . . .

Complementarity in Crisis: Uganda, Alternative Justice, and the International Criminal Court

by Alexander K.A. Greenawalt

[Alexander K.A. Greenawalt is an Associate Professor at Pace University School of Law]

Let me start by thanking Opinio Juris and the Virginia Journal of International Law for hosting this online symposium. I am also honored that Mark Drumbl has graciously agreed to be my respondent.

In 2005, the International Criminal Court issued warrants for the arrest of Joseph Kony, the leader of Uganda’s murderous Lord’s Resistance Army, as well as four other high-level LRA suspects (two of whom reportedly have since died) to answer charges of crimes against humanity and war crimes. The warrants proved controversial when the fate of promising peace negotiations appeared to hinge on the ICC’s willingness to defer to Ugandan efforts to address LRA atrocities in other ways. According to the terms of a draft accord, the highest-level LRA suspects would face a special domestic court charged with imposing “alternate penalties and sanctions,” whereas lower level suspects would undergo traditional, highly ceremonial village proceedings. In all cases, the apparent goal was to emphasize truth-telling, forgiveness, and reconciliation over prison time. Notably, Uganda cited strong support among the LRA’s victims for this solution. When Kony ultimately refused to sign the long negotiated agreements, he blamed the ICC warrants for his hesitation. Since then, LRA atrocities have continued, spreading outside Uganda’s borders, while military efforts to defeat the group have failed.

For students of international law and politics, the episode presents a familiar dilemma of transitional justice. For the ICC, however, the dilemma points to a parallel institutional crisis that exposes deep uncertainties in the Court’s mandate. On the one hand, the ICC exists as a court of last resort: its system of “complementary” jurisdiction requires deference to “genuine[]” domestic investigations and prosecutions. On the other hand, the Court’s statute fails to resolve perennially contentious debates over precisely what sorts of legal responses to mass atrocities-including arrangements that fall short of conventional prosecution-are permissible….

Don’t Forget the Black-and-White Jumpsuit with the Words “Convict” on It

by Kevin Jon Heller

My favorite line of today’s hearing in the Karadzic trial, courtesy of one of the prosecutors:

“If necessary, force can be used to secure his presence in the courtroom,” Uertz-Retzlaff said.

Because nothing says “fair trial” quite like a defendant in restraints.

Virginia Journal of International Law, Vol. 50-1: Online Symposium

by The Editors of the Virginia Journal of International Law

The Virginia Journal of International Law is delighted to continue its partnership with Opinio Juris this week in this online symposium featuring three pieces recently published by VJIL in Vol. 50:1, available here.

On Wednesday, Professor Alexander K.A. Greenawalt, Associate Professor of Law, Pace University School of Law, will discuss Complementarity in Crisis: Uganda, Alternative Justice, and the International Criminal Court. Professor Greenawalt examines the difficult institutional problems faced by the International Criminal Court (ICC or Court) in the context of the Ugandan peace process. In recent years, the government of Uganda has been engaged in peace talks with the rebel Lord’s Resistance Army (LRA) to end the nation’s devastating civil war. In 2005, the ICC issued arrest warrants for a handful of LRA leaders accused of crimes against humanity and other grave offenses. Although it was Uganda that initially referred the matter to the ICC, the government later took the position that it would seek withdrawal of the ICC warrants if the accused agreed to undergo a traditional tribal justice ritual requiring a public confession and an apology without threat of incarceration. Professor Greenawalt argues that the Ugandan peace process presents the ICC with its first crisis of this kind. As indicated by the Ugandan experience, Professor Greenawalt explains that the Rome Statute leaves fundamental questions unanswered regarding how far states recovering from mass violence should be required to go in pursuit of criminal justice. Professor Greenawalt proceeds to consider both the interpretive dilemmas facing the Court and the efforts of Prosecutor Luis Moreno-Ocampo to address them. Specifically, he explains that although the ICC is structured to give deference to domestic proceedings, application of Article 19’s framework for complementary jurisdiction, and the Article 53 “interests of justice” dictate to the Ugandan peace process reveals deep uncertainties regarding the ICC’s core relationship to domestic governance. Professor Greenawalt concludes that the Ugandan peace process reveals the Court to be a promising but unstable institution, one whose legitimacy may ironically depend on help from external stakeholders.

Professor Mark A. Drumbl of Washington and Lee University School of Law will serve as respondent.

On Thursday, Professor John H. Knox, Professor of Law, Wake Forest University School of Law, will discuss Climate Change and Human Rights Law. Professor Knox seeks to identify certain duties that international human rights law places on states to address the effects of climate change on human rights and to provide a framework for further clarification of these duties. To that end, Professor Knox looks to the jurisprudence that human rights tribunals have established to address other types of environmental harm to human rights. Professor Knox explains that this jurisprudence sets out detailed duties, including prior environmental impact assessment, full participation in decisions by those affected, judicial recourse, and compliance with minimum human rights standards. He then argues that such duties can and should be extended to apply to global environmental harm such as climate change. Although Professor Knox discusses practical and legal obstacles to this extension, he ultimately finds a feasible legal basis in the duty of states to cooperate to address common challenges to human rights, a duty rooted in the Charter of the United Nations and the International Covenant on Economic, Social and Cultural Rights. Professor Knox determines that although the international effort to address climate change complies with human rights norms in some respects, states must do more to ensure that the ongoing climate negotiations result in an agreement that provides both for the reduction of greenhouse gases to levels that will not interfere with the human rights of those vulnerable to climate change, and for adaptation to unavoidable changes that would otherwise harm their human rights.

Marc Limon, Counsellor, Mission of the Government of the Maldives to the United Nations, in Geneva, Switzerland, will serve as respondent.

On Friday, Professor Alvaro Santos, Associate Professor of Law, Georgetown University Law Center, will discuss Labor Flexibility, Legal Reform, and Economic Development. Professor Santos argues that the dominant understanding of labor flexibility-a binary between flexibility and rigidity-is misguided and should be revised. To illustrate the shortcomings of the dominant conception, he turns to the highly influential World Bank project “Doing Business.” The Doing Business reports propose legal “best practices” in labor and employment regulation, heralding so-called labor law “flexibility” as a recipe for economic development. Professor Santos argues that the project’s assessment of labor law flexibility contains a number of very serious omissions that seem to stem from a flawed understanding of regulation. Specifically, Professor Santos contends that the Doing Business indicators fail to consider the full range of legal sources by relying primarily on the written law, while remaining blind to the reality of law in action and to widespread economic informality. On the whole, Professor Santos argues that Doing Business promotes a conception of legal flexibility that fails to capture the insight that flexibility for some may mean rigidity for others. As an alternative, Professor Santos develops a framework that unpacks the concept of labor flexibility by assessing the respective entitlements of employers and employees in the labor market. The framework he proposes shows the need for two analytical steps that are currently missing in the literature. First, he argues that it is necessary to undertake a doctrinal assessment of the respective rights, duties, and privileges of the different players in the labor market. Professor Santos contends we need to ask: flexible for whom? Second, Professor Santos argues that we need to pay attention to the social links between the legal regime and the realities of economic life, and that we must pay particular attention to the differences between the formal and informal economic sectors. Based on this analysis, Professor Santos lays out a typology of three different labor regimes that combine flexibility and rigidity in different ways and that can coexist within the same economy and the same country. Professor Santos argues this framework provides a better comparative description of countries’ current labor regimes, as well as their size and distribution in the economy. This framework can serve as a better lens through which to analyze the labor regimes that underpin successful development experiences, and it could, therefore, also provide better guidance for labor regulatory strategies.

Professor Katherine V. Stone of UCLA School of Law will serve as respondent.

We encourage you to join in the discussion online this week by sharing your questions and thoughts in the comment boxes below each posting. When the symposium concludes, we hope that you will keep in contact with us through our website to continue the conversation.

Calabresi’s Dissenting View on Arar

by Kevin Jon Heller

As both Julian and Ken (at VC) have indicated that they believe Arar was rightly decided by the Second Circuit, it’s worth noting that Guido Calabresi — hardly a flaming liberal — is dissenting in the case, describing the majority’s decision as “extraordinary judicial activism.”  Scott Horton discusses Calabresi’s dissent — and notes that the majority decision is based on at least one fundamental and unforgivably sloppy mistake:

Typical of the care that went into the majority opinion is this passage: “Consider: should the officers here have let Arar go on his way and board his flight to Montreal? Canada was evidently unwilling to receive him.” Had Judge Jacobs, who wrote for the majority, bothered himself a bit with the record, he would have discovered that Canada confirmed it was willing to accept him home. Moreover, this is hardly a trivial error. The gravity of the government misconduct in this case comes from the decision to send Arar to Syria when he could have been returned to Canada, sent to Switzerland, or back to Tunisia, where he had been vacationing. He was sent to Syria for a reason, and that was torture.

Read Horton.

Hayes: Karadzic More Like Taylor than Milosevic

by Kevin Jon Heller

Niamh Hayes, a PhD candidate the Irish Centre for Human Rights and an intern on the Karadzic case, has a very useful guest post at the International Law Bureau about how the Trial Chamber might respond to Dr. Karadzic’s boycott.  The entire post is well worth a read, but I was particularly struck by Niamh’s suggestion that Dr. Karadzic’s actions more closely resemble Charles Taylor’s than Milosevic’s or Seselj’s:

The Tribunal’s decisions in this regard and whether they amount to penalising Dr. Karadžić for having the unmitigated temerity to insist on exercising his acknowledged right to self-representation have been discussed elsewhere and could easily form the subject of an entire post. What is worth noting is that, despite the almost uniform characterisation by the media of Dr. Karadžić’s absence this week as intentionally disruptive, politically motivated or equivalent to the obstructive tactics employed by Slobodan Milošević or Vojislav Šešelj, up to this point he has shown exemplary and consistent co-operation with the Tribunal. Perhaps a better comparison would be with Charles Taylor, who famously refused to attend court and fired his defence team on the opening day of his trial in June 2007, after many months of failed motions to be granted adequate time or facilities for his defence. Taylor also submitted a letter to the Court which explained his decision not to attend the trial, and outlined fair trial concerns quite similar to those highlighted by Dr. Karadžić last week. The letter famously concluded “I choose not to be the figleaf of legitimacy for this process.”

While there was an inevitable delay to the commencement of the proceedings against him, which eventually began in January 2008, Mr. Taylor’s concerns regarding the time and facilities for his defence were addressed and he has since proven to be entirely co-operative with the Court and the trial process.

This comparison does not sit well with the media’s preferred narrative, which is to paint Dr. Karadzic  — despite months of evidence to the contrary — as just another meglomaniacal Serbian political leader hell-bent on undermining the Tribunal’s authority. Little wonder, then, that no one in the media has bothered to examine the record to determine whether Dr. Karadzic’s complaints have any merit.  After all, real reporting is much more difficult than serving as the prosecution’s stenographer.

Arar “Rendition” Suit Dismissed by Second Circuit

by Julian Ku

Maher Arar, a Canadian who was detained by the U.S. and the subject of an “extraordinary rendition” to Syria, has lost his bid to maintain his lawsuit in U.S. courts.  By a 7-4 vote, the U.S. Court of Appeals for the Second Circuit, sitting en banc, has voted to dismiss his suit against U.S. government officials for alleged violations of his constitutional rights (opinion can be read here).  The majority held that it should not create a cause of action for a violation of constitutional rights (a “Bivens” action) due to the “special factors” present in this case. Such special factors include the affect of private suits on the conduct of foreign policy and national security. Instead, the court says that such private causes of action should only be allowed if Congress does so by statute.   Essentially, the full court seems to have endorsed the panel appellate opinion and district court opinion in this case on this question.  And, although this is a close and agonizing case, I think this is the right call, as I explained when the panel opinion came down and a few years ago in the context of the original district court case back in 2006.

Sudan: Hybrid Court an ICC Plot!

by Kevin Jon Heller

Okey-dokey:

The political bureau officer at the NCP Mandoor Al-Mahdi also accused the International Criminal Court (ICC) prosecutor Luis Moreno-Ocampo of standing behind the hybrid court proposal.

“After Ocampo failed in furthering his agenda through the ICC he now wants to find another entry though the so-called hybrid court” Al-Mahdi said.

This week the ICC prosecutor hailed the special tribunal proposal made by Mbeki’s panel saying that it would complement his court’s work.

“The primary responsibility lies in national states,” Ocampo told Reuters. “The ICC is just doing a piece — prosecuting the most responsible — but then there are other efforts needed”.

Note to Sudanese government: the Mbeki Panel recommended creating a hybrid court so you could avoid the ICC.  You’re not helping yourself…

Mbeki Panel Member: We Wanted to Protect Bashir

by Kevin Jon Heller

This isn’t going to help the Panel’s credibility:

The African Union (AU) high level panel on Darfur wanted to find a way out for Sudanese president Omer Hassan Al-Bashir from the International Criminal Court (ICC) indictment, one of the commission members said today in an interview.

This week the AU Peace and Security Council (PSC) endorsed a report prepared by an eight-member team headed by former South African president Thabo Mbeki that was tasked with crafting a formula to resolve the conflict in Darfur that would take into consideration peace, justice and reconciliation.

The panel was formed weeks before the ICC issued an arrest warrant for Bashir prompting skepticism from Darfur rebels and other critics who say that the AU wants to circumvent the indictment, something which Mbeki has denied in meetings with Darfur IDP’s.

Mbeki called for a hybrid court to try war crimes suspects and changes to Sudanese laws. It took no position on the ICC warrant except to say that the Hague-based tribunal cannot try all the suspects, effectively supporting its work.

However, one of the members of the AU panel said that the goal of the mission was to give Bashir an exit strategy from the ICC row.

“Incriminating the president is out of question and fundamentally unacceptable” the former Egyptian foreign minister said in an interview with the Egypt based Al-Masry Al-Youm newspaper.

“Our goal was to find a way out [to Bashir] from the dilemma of the ICC that sparked a great deal of controversy,” Maher said.

The AUPD member, who served as Egypt’s Foreign Minister from 2001 until 2004, said that the ICC case against Bashir was “political” in nature and “biased” against the Sudanese head of state “with exaggeration in depicting the situation”.

“Demanding the prosecution of an African head of state before an international tribunal is totally unacceptable” the former Egyptian top diplomat said.

[snip]

The remarks made by Maher will likely cause a huge embarrassment to the AU and the panel chief, Mbeki who sought to quell accusations on seeking to protect the Sudanese president.

If the Mbeki Panel really was committed to protecting Bashir, they didn’t do a very good job.  As the Sudan Tribune notes, the report contains nary a critical word about the ICC or the arrest warrant.  And although the report does offer Bashir a “way out” — creating a domestic accountability mechanism that would satisfy the principle of complementarity — its laundry list of needed legal reforms means that, as I have noted before, the likelihood of the Sudanese government creating such a mechanism is precisely zero.  By the report’s own logic, therefore, Bashir should face prosecution by the ICC.

Call for Papers — Melbourne Forum on Doctoral Legal Research

by Kevin Jon Heller

Two of our PhD students, James Parker and Rebecca Goodbourn, have asked me to post the following call for papers:

Following the success of last year’s Postgraduate and Early Career Researchers’ Workshop on Methodological Approaches to Legal Scholarship, we are pleased to announce the inaugural Melbourne Forum on Doctoral Legal Research. This annual Forum will provide a space for participants to explore the particular challenges they encounter in the context of their own research. The theme of this year’s workshop – “Knowing, Acting, Creating” – aims to bring together doctoral students and early career researchers from a variety of regions, cultures and disciplines to reflect upon our roles as researchers and be aided, guided and challenged by other participants and by our academic discussants. The workshop will culminate in several small roundtable discussions, providing participants with a unique opportunity to engage academics with similar interests on the future of research in their area.

As legal researchers we are required to negotiate an ongoing and dynamic relationship between our impulses and abilities to know, act and create. In this workshop we ask participants, what epistemological traditions or discourses are you drawing upon in your research? How do these transform, inflect and assist your work? What assumptions about the nature of (legal) knowledge do they import? In your daily work, in what ways are you able to be creative and in what ways are you constrained? How, for instance, are you bound by disciplines (legal or otherwise) and their expectations, definitions and procedures, and are you actively challenging these in your writing? How do you see your work as acting upon legal discourse, practice or beyond?

In short, as legal researchers, what is our place as thinkers of, actors in relation to, and creators or creatures of law?

We invite participants to present on some aspect of their own research but with a self-reflexivity appropriate to the theme of the forum. Abstracts (500 words) should be submitted along with a short biography (100 words) and registration form BY 5PM ON FRIDAY 11TH DECEMBER . These can be sent to j [dot] parker5 [at] pgrad [dot] unimelb [dot] edu [dot] au

BURSARIES
Modest bursaries will be made available to some participants. If you would like to apply for a bursary, please indicate this in your registration form and fill out the relevant section.

CONFERENCE WEBSITE
http://plsa.law.unimelb.edu.au/knowingactingcreating

Last year’s Forum was superb, drawing students from Melbourne, Australia National University, University of Vienna, University of Cologne, University of London, University of British Columbia, and Osgoode Hall.  James and Bec hope that this year’s forum will be even more international.  So if you are a PhD student or young scholar, definitely think about submitting an abstract!

WCL Discussion of Torture Memos

by Kenneth Anderson

If you are going to be around the DC area this upcoming Tuesday morning, and are interested in the current discussion over the issues of the torture memos, my colleagues in the WCL program on law and government have organized a terrific program.

Tuesday, November 3, 2009, at Washington College of Law: “The Torture Memos: Lawyers, Ethics, and the Rule of Law,” and is meant as a general overview and framing of the current (and ongoing) legal, ethical, and moral controversy over the role of the Justice Department in the various episodes of torture and other mistreatment of detainees during the Bush Administration. The highlight of the program promises to be a keynote address from 9:30 to 10:15 a.m. by Senator Sheldon Whitehouse (D-RI; a rising player on judiciary issues); but the program also includes a screening of Alliance for Justice’s new short film, Tortured Law, from 10:15 to 10:45; and a panel discussion/debate from 11-12:15 featuring Nan Aron from AFJ, Dan Levin (former Acting Assistant Attorney General in charge of the Office of Legal Counsel from 2004-05), David Luban, and Stuart Taylor (and moderated by Steve Vladeck).

Register at www.wcl.american.edu/secle/registration/.  General Registration is free.   2 CLE ethics credits will be offered for $35. For further information please contact the Office of Special Events and Continuing Legal Education, Phone 202.274.4075 or secle [at] wcl [dot] american [dot] edu.

The Sudanese Government Rejects a Hybrid Court

by Kevin Jon Heller

From the Sudan Tribune:

The Sudanese government today reiterated its rejection the proposal set of an African Union (AU) to setup hybrid tribunals to try Darfur war crimes suspects.

Speaking to reporters in Cairo the Sudanese presidential adviser Mustafa Osman Ismail said that Khartoum accepts the AU report “in its generalities” and the “African solution for the Darfur crisis”.

Asked about the hybrid courts, Ismail said that his government believes that “justice should be applied on anyone with no exception but at the same time the sovereignty of Sudan and the independence of its judiciary must be respected”.

Ismail said Sudan wants further dialogue with the AU on the judiciary mechanism for Darfur for the purpose of “securing the independence of the Sudanese judiciary and at the same time the necessary transparency to achieve justice on its most noble levels and punishing the perpetrators who committed crimes in Darfur”.

[snip]

Taha stressed that Sudan has established special courts and appointed a special prosecutor saying that the Sudanese law and competence of judiciary “provides the necessary framework to achieve justice”.

The head of the pro-government Sudanese bar association Fathi Khalil lashed at the recommendations saying it was prepared by circles “hostile to Sudan”.

Speaking to Al-Jazeera TV based on Qatar, Khalil said that only Sudanese courts can bring justice to Darfur rejecting participation of non-Sudanese figures.

Can anyone actually be surprised by this?  Has the Sudanese government done anything — literally, anything — to suggest that it would be willing to create a justice mechanism that might effectively prosecute its own officials?

I can only hope that the Sudanese government’s intransigence will motivate the AU to rethink both its promise to protect Bashir from the ICC and its desire for the Security Council to defer the arrest warrant for him.  If the Sudanese government is willing to ignore the AU’s resolution calling for the implementation of the Mbeki report, why should the AU continue to defend him?