There is an old adage that a conservative is a liberal who has been mugged. The rejoinder is that a liberal is a conservative who has been indicted. Speaking of which, an intriguing development in the case of the Christian terrorists:
All members of the anti-government Hutaree group, who wanted to start a violent revolution against the government… have asked for public defenders!
Hmm.
Fascinating speech by Andrew Shapiro, Assistant Secretary for Political-Military Affairs at the U.S. State Department on U.S. government views on counter-piracy policy. Of special interest, the U.S. may try changing the law on prosecuting pirates. How exactly to do that is a bit unclear (treaty? custom?), but it seems like a promising avenue. At least it is a new idea, something typically lacking in this area.
And while we will continue to pursue the 21st Century solutions that Secretary Clinton has spoken about, we will also look to the past for ideas. For instance, the Danish-led working group is actively considering how to enhance the ability of states to prosecute attempt or conspiracy to commit piracy – those cases where we do not capture the suspects in the act of attempting to pirate a vessel but do encounter them laying in wait for their next victim ship with all the trappings of would-be pirates.
One way to do this might be to infer the intent to commit an act of piracy from the possession of piracy-related equipment and the circumstances in which the suspects are encountered. In the 19th Century, states interested in combating the slave trade agreed that vessels found carrying specific “articles of equipment” used for the slave trade, such as shackles and handcuffs, could be declared evidence of a ship’s employment in the slave trade and, unless satisfactorily accounted for by the owner or master, could provide the necessary grounds for condemnation of the ship.
If we were to proceed by analogy in the present piracy context, perhaps states could agree that the mere possession of certain ladders, grappling hooks, and certain armaments at sea in an area known to be a high risk area for piracy attacks should be sufficient to establish intent to commit an act of piracy.
NGO Monitor loves to criticize progressive NGOs for a lack of transparency concerning their funding. A recent report, for example, predictably attacks Human Rights Watch for not identifying all of its donors, particularly those at last year’s fundraising event in Saudi Arabia:
HRW publishes the names and amounts provided by some of its donors, but others remain hidden. Although HRW claims to refuse funding from government organizations, Oxfam NOVIB, funded largely by the Dutch government, provided approximately $1 million in 2008. Since some HRW donors and their contributions are not listed, it is possible that other direct or indirect government funders are among them. A highly controversial HRW dinner held in May 2009 in Riyadh, Saudi Arabia that included members of the government Shura Council, has been described as a fundraising event.
Should HRW identify all of its donors and the amounts they have donated? Probably. But HRW is a model of transparency compared to NGO Monitor itself. Here, in its entirety, is the information NGO Monitor’s website provides about its funding:
NGO Monitor was founded jointly with the Wechsler Family Foundation. Major donors include Ben & Esther Rosenbloom Foundation, Baltimore; MZ Foundation, Oakland; Klarman Family Foundation, Boston; Middle East Forum Education Project, Philadelphia.
That’s it. Notice that NGO Monitor provides no information about the amounts donated by the foundations. And notice that NGO Monitor only identifies “major” donors — others remain hidden. And since others remain hidden, it is possible that direct or indirect government funders are among them.
NGO Monitor’s annual report for 2008 — it has yet to publish one for 2009 — is no more illuminating. The report simply states that NGO Monitor received $433,500 in donations during 2008; it does not identify where those donations came from or the amounts donated.
I’m not the only one who has noted NGO Monitor’s complete lack of financial transparency. Recent editorials in the Jerusalem Post (written by a professor at Ben Gurion University) and Haaretz have made the same point. (Interestingly, the Jerusalem Post seems to have removed the editorial. Fortunately, you can find a cached version here.)
NGO Monitor is absolutely right: financial transparency is critically important. So who funds NGO Monitor? If Mr. Steinberg or Ms. Herzberg will be kind enough to send me a complete list of names and amounts, I will happily publish the information here.
This is just the first round of a potentially huge investor-state arbitration claim filed by Chevron against Ecuador. $700 million now, but up to $27 billion later. (For some background, see here and here about a federal court’s refusal to stay one of the arbitration proceedings.).
Chevron Corp (CVX.N) won a three-year-old arbitration fight against Ecuador over a commercial dispute as it battles the country separately over an environmental claim that may result in $27 billion in damages against the company.
An arbitration panel ruled on Tuesday that Ecuador’s courts violated international law by delaying rulings on commercial disputes between the U.S. oil company and Ecuador’s government, and awarded Chevron $700 million.
The arbitration panel partially resolved seven claims that Texaco, bought by Chevron in 2001, filed in Ecuador from 1991 to 1993, Chevron said. The panel found that the courts had breached a U.S.-Ecuador treaty by not ruling on the cases.
Forgive the self-promotion, but I was just sent the cover of my co-edited book (with Markus Dubber, who teaches at Toronto), and I think it’s really cool. The Handbook, which will be published in November by Stanford University Press, is the first edited book on comparative substantive criminal law. It contains seventeen chapters — 16 chapters on the criminal law of individual countries, and a chapter (mine) on the comparative origins of the Rome Statute. Markus and I have endeavored not to put together a book that simply focuses on Europe, Canada, and the US; it also includes chapters on Argentina, Australia, Japan, China, India, Iran, Israel, Russia, South Africa, and Egypt. And the lineup of contributors is terrific, featuring such luminaries as Paul Robinson (US), Kent Roach (Canada), Andrew Ashworth (UK), Thomas Weigend (Germany), Sadiq Reza (Egypt), and Silvia Tellenbach (Iran).
Yesterday’s oral argument in Morrison v. National Australia Bank Ltd gave strong indications that the Court was prepared to extend the territorial limitations of Hoffman-La Rouche v. Empagran to the securities fraud context. Morrison involves a class action brought by foreign plaintiffs against a foreign stock issuer on a foreign exchange for alleged fraud that occurred on foreign soil. The justices strongly questioned whether the Securities Act of 1934 should extend to reach such conduct.
Justice Ginsburg (p. 7):
This case is Australian plaintiffs, Australian defendant, shares purchased in Australia. It has “Australia” written all over it…. Of the applicable laws to this transaction, to this alleged fraud, isn’t the most appropriate choice the law of Australia rather than the law of the United States?
Justice Alito (p. 11):
Wouldn’t your clients have an adequate remedy under Australian law in Australia, in the Australian court system…. Let’s assume that on the facts of this case they could not prevail under Australian law in the Australian court system. Then what United States interest is there that should override that?
Justice Breyer (pp. 13-14):
In my mind the difficult issue in this case is not the jurisdictional issue under principles of international law. It’s the question of the scope of the statute. And there the things against you are three. One is Professor Sach’s argument [in her article published in 28 Colum. J. Trans Law 677 (1990)], which I would like to know your answer to. The second is in Judge Friendly’s two opinions…. Now, France, Britain and Australia have filed briefs in this case giving what they consider very sound reasons, which are reasons that Judge Friendly never considered…. [T]hey point to a number of conflicts, that if you win, how that will interfere with their efforts to regulate their own securities market….
Justice Scalia (p. 16):
But Australia says: Look, it’s up to us to decide whether there has been a misrepresentation, point one; and whether it’s been relied upon by the … plaintiffs, point two. And we should be able to decide that and we don’t it decided by a foreign court. You are talking about a misrepresentation … made in Australia to Australian purchashers; it ought to be up to us to decide that issue; and here you are dragging the American courts into it.
Justice Ginsburg (p. 18):
[U]nless you want to say, the Australia court to say, the United States taking this case is so outrageous that we will not respect its judgment…. What conflict of laws is all about is you have two jurisdictions, both with an interest in applying their own law, but sometimes one defers to the other.
Justice Ginsburg (p. 21):
[Y]ou have two classes of plaintiffs, one the Australians, who bought their shares in Australia; then you have Morrison, who has an ADR, and who is dismissed because he wasn’t able to show damages. So what U.S. investor was harmed?
Reading the tea leaves, it looks as though Morrison could be one of the more significant cases on the presumption against extraterritoriality. The questions, particularly from Breyer and Ginsburg, suggest that we should not read the statute to regulate foreign fraud by foreign stock issues against foreign purchasers on a foreign exchange.
AP reports that a Dutch court of appeals has affirmed a lower court ruling that held the UN could not be sued for its failure to protect Bosnian civilians in Srebrenica:
Appeals judges have ruled that relatives of victims of Europe’s worst massacre since World War II cannot sue the United Nations for compensation in a Dutch court.
Lawyers for the family members have vowed to take the case to the Dutch Supreme Court and the European Court of Justice if necessary.
Tuesday’s ruling says that the U.N. has immunity from prosecution enshrined in international conventions that established the world body.
The appeals decision upholds a 2008 ruling by the Hague District Court.
Some 8,000 Muslim men were murdered in July 1995 by Serb forces who overran the Srebrenica enclave in Bosnia despite the presence of Dutch U.N. peacekeepers.
A group called the Mothers of Srebrenica wants to sue the U.N. and the Netherlands.
The UN’s actions in Srebrenica were shameful, but this decision makes sense. Forcing the UN to pay damages for failed peacekeeping missions, now matter how egregious its errors, will only encourage the UN to allocate its resources elsewhere. And flawed peacekeeping is better than no peacekeeping at all.
Sudan is preparing for a national election next month. It may not be the solution for Sudan, given that it is still very doubtful that there is enough cohesiveness for a genuine democratic result. Still, I wonder if the ICC’s Prosecutor may be going a little far here.
A day after Sudan president Omar al-Bashir threatened to cut the fingers off election observers, the International Criminal Court’s chief prosecutor, Luis Moreno-Ocampo, called Sudan’s upcoming vote “a Hitler election.”
Mr. Moreno-Ocampo, who seeks to prosecute Mr. Bashir for crimes committed in Sudan’s troubled Darfur region during a war that killed at least 1.9 million people, today said election observers face “a big challenge” in Sudan.
“It’s like monitoring a Hitler election,” he said at a press conference in Brussels, according to Agence France-Presse.
What exactly is the proper international policy toward Sudan? The ICC arrest warrant locks everyone into a confrontational position, but since there will be no arrest of Bashir anytime soon, all of Sudan will have to lurch along without any political resolution for the foreseeable future. The U.N. is going to monitor the election. Should they even bother?
A quick note for interested readers — the Texas Law Review has just published my latest article, Unpacking the Compact Clause. They’ve posted a copy of it here as well. My own abstract of the piece follows.
The Compact Clause prohibits U.S. states from making “any Agreement or Compact with another State, or with a foreign Power” absent congressional consent. No one, however, has ever studied the Clause’s application to agreements by foreign powers with U.S. states (FSAs). The conventional wisdom views FSAs as infrequent, unimportant, and otherwise identical to those interstate compacts for which the Supreme Court has opined congressional consent is generally unnecessary.
My article explains why the conventional wisdom is wrong on all counts. For the first time, I present a typology of 340 FSAs and show how they are increasing in both number and importance. The states have simply not reported their practice to the federal government.
More importantly, my article introduces the idea that the Constitution contains not one Compact Clause, but two – one for interstate compacts and another for FSAs. Using text, history, doctrine, function, and structure, I demonstrate how Congress can dictate for itself when states must obtain congressional approval of FSAs, independent of the interstate compact doctrine devised by the Court. In doing so, my work aims to demonstrate that the Court is not the only actor that can construct constitutional meaning; Congress has its own powers to interpret the constitutional text outside the courtroom. Ultimately, my article shows that, despite some costs, a Foreign Compact Clause will benefit states, their foreign partners, the federal government, and even our understanding of federalism as a cooperative venture, rather than just a competitive one.
I thought ASIL and the program organizers did a wonderful job with this year’s Annual Meeting. I particularly appreciated the opportunity to chair a panel, War and Law in Cyberspace. In addition to a discussion of the technological capacities of cyberattacks and how they map onto the jus ad bellum and the jus in bello, we had a good discussion of what became the over-riding topic of this year’s event — unmanned aerial vehicles (if you’ve not read Jack Beard’s AJIL article on this topic, you should do so (but a subscription is required)). Meanwhile, I learned about the following call for papers that may be of interest to some of our readers:
The National Research Council (NRC) is undertaking a project entitled Deterring Cyberattacks: Informing Strategies and Developing Options for U.S. Policy. The project is aimed at fostering a broad, multidisciplinary examination of strategies for deterring cyberattacks on the United States and the possible utility of these strategies for the U.S. government. To stimulate work in this area, the NRC is offering one or more monetary prizes for excellent contributed papers that address one or more of the questions of interest found in its call for papers, which can be found here.
Abstracts of less than 500 words are due April 1, 2010. First drafts are due May 21, 2010, final drafts July 9, 2010. The broad themes of interest include
A. Theoretical Models for Cyberdeterrence
B. Cyberdeterrence and Declaratory Policy
C. Operational Considerations in Cyberdeterrence
D. Regimes of Reciprocal/Consensual Limitations Regarding Cyberattack
E. Cyberdeterrence in a Larger Context
F. The Dynamics of Action/Reaction in Cyber Conflict
G. Escalation Dynamics of Cyber ConflictIn the call for papers, a number of more specific questions are contained within each theme. A variety of relevant collateral issues are addressed as well.
For those of you subject to financial incentives, note the monetary prize! The NRC point of contact is Herb Lin, who can be reached at 202-334-3191, hlin [at] nas [dot] edu.
[UPDATE: The deadline for abstracts has been extended to April 15.]
Fascinating inside baseball piece on the Obama Administration’s internal debate over war on terrorism policy. It features a struggle between the State Department (Harold Koh) and the Defense Department (Jeh Johnson) with the OLC (David Barron) playing referee.
The rift has been most pronounced between top lawyers in the State Department and the Pentagon, though it has also involved conflicts among career Justice Department lawyers and political appointees throughout the national security agencies.
The discussions, which shaped classified court briefs filed this month, have centered on how broadly to define the types of terrorism suspects who may be detained without trials as wartime prisoners. The outcome of the yearlong debate could reverberate through national security policies, ranging from the number of people the United States ultimately detains to decisions about who may be lawfully selected for killing using drones.
I actually think the article overstates the differences somewhat. All the key players agree there is a war against Al Qaeda and that there is a power to detain and try Al Qaeda folks. The only question dividing them seems to be how to define a member of Al Qaeda, or supporter of Al Qaeda. Admittedly, this is a difficult question but it doesn’t seem to be a deep philosophical divide.
David Bernstein links today to an article in The Times — a right-wing British newspaper published by Rupert Murdoch — attacking Human Rights Watch. The article is breathlessly entitled “Nazi Scandal Engulfs Human Rights Watch,” which I have to admit piqued my curiousity — until I realized that the “Nazi scandal” concerned Marc Gelasco, a research analyst who resigned from HRW after the organization found out about his hobby of collecting Nazi memorabilia. The ridiculous title tells you all you need to know about the article’s credibility.
But the article doesn’t stop there. It also makes sure to fundamentally distort HRW’s record in an attempt to prove that the organization is anti-Israel:
Every year, Human Rights Watch puts out up to 100 glossy reports — essentially mini books — and 600-700 press releases, according to Daly, a former journalist for The Independent.
Some conflict zones get much more coverage than others. For instance, HRW has published five heavily publicised reports on Israel and the Palestinian territories since the January 2009 war.
In 20 years they have published only four reports on the conflict in Indian-controlled Kashmir, for example, even though the conflict has taken at least 80,000 lives in these two decades, and torture and extrajudicial murder have taken place on a vast scale. Perhaps even more tellingly, HRW has not published any report on the postelection violence and repression in Iran more than six months after the event.
Um, no. As a commenter to Bernstein’s post pointed out, HRW published a “report on the postelection violence and repression in Iran” in February of this year. It has also published literally dozens of various news reports, letters, and press releases condemning the Iranian regime’s response to the elections since June 2009. Apparently, the “journalist” who wrote the article couldn’t be bothered to spend 30 seconds on the HRW website. Much better to distort and trust that most readers won’t know any better. (Which is, of course, the guiding principle of Murdoch journalism.)
The article is no more accurate concerning Kashmir. HRW has published two reports on Kashmir in the past few years alone (see here and here) and at least eight others since 1991 (see here and here and here and here and here and here and here and here). My math isn’t very good, but I’m reasonably confident that 10 is greater than four. And, of course, HRW has also published — as with Iran — hundreds of news reports, letters, and press releases concerning Kashmir in the past two decades. I guess those don’t count because they complicate the author’s misleading narrative.
I could go on, but what’s the point? The article is an attempt to deceive, not a genuine effort to have an intelligent debate about HRW. How sad that all of HRW’s good work in places like Iran and Kashmir get drowned out by attack pieces like this one.
Toward the end of the section on drone warfare in Legal Adviser Koh’s March 25, 2010 speech to ASIL is a discussion that runs to US domestic law and regulation. For the first time in a very long time — it might be since Koh’s predecessor Abe Sofaer addressed the question in a 1989 speech — the meaning of “assassination” in US law and regulation has been addressed in an authoritative and considered way by a senior US government lawyer. Legal Adviser Koh said with respect to “assassination”:
[S]ome have argued that our targeting practices violate domestic law, in particular, the long-standing domestic ban on assassinations. But under domestic law, the use of lawful weapons systems—consistent with the applicable laws of war—for precision targeting of specific high-level belligerent leaders when acting in self-defense or during an armed conflict is not unlawful, and hence does not constitute “assassination.”
To refresh on the background to this. Apart from questions of international law, the US has had a domestic ban on “assassination” in the form of an executive order that has been in place (or renewed in slightly different language) since the presidency of Gerald Ford. In 1976, in the wake of revelations of CIA activities in the Church Committee hearings, President Ford issued EO 11905, the single relevant sentence of which read: “No employee of the United States Government shall engage in, or conspire to engage in, political assassination.” President Carter reissued the order in 1978 in slightly different language in EO 12036, which read in relevant part: “No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination.” President Reagan reissued the order in 1981 using identical language in EO 12333: “No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination.” EO 12333 was amended by subsequent EO’s, but the specific assassination ban text remains unchanged.
That said, the term “assassination” is never defined. Whole forests have fallen as commentators, in law reviews and elsewhere, have debated its meaning over decades, however. Does it refer to political leaders? To whom does it apply or not apply? Non-state actors? Terrorist groups? Political leaders of states with which the United States is at war? Military-political leaders of such states (given how frequently that is the case)? There is little material in the record as to what was intended — and perhaps not surprisingly. What little anecdotal information exists from the EO’s issuance in the 1970s suggests that it was intended as a way of placating Congress, and avoiding an actual statutory ban. The EO was apparently intended to be vague and undefined, and subsequent presidents — and, note, Congresses — have found that to be a useful ambiguity in which to leave it. It has the status of a binding executive order in domestic law — and amendable, alterable, and revocable should the President want to do it.
I’ve never understood, to be frank, the scholarly agonizing around a single sentence with a wholly undefined term in an order not, and never, codified as a statute. It defies interpretive settlement, I would have thought, precisely because it was not designed to bear any real legal weight. It was instead merely a declaration in vague and general terms that whatever wicked killings the CIA did that were revealed in the Church hearings, those would not happen any more, a mea culpa and promise not to do some ill-defined bad things any more. Well and good — the CIA did some bad and wicked things — but beyond that, one is not really going to get by textual interpretation. Unsurprisingly, much of the commentary uses the interpretive discussion as a way of launching a normative view of when and what should be acceptable in the way of targeted killing. Continue Reading…
The long-awaited ICJ judgment on Kosovo is due out this November, according to this report. That would be pretty fast work, given the hearings were only held last December and probably involved the participation of more countries (35) filing memorials than any case in ICJ history. Still, the judgment was actually expected even earlier. Moreover, the report from Serbia suggests that the forthcoming arrest of long-wanted suspect Ratko Mladic may have an outcome on the ICJ’s decision? I have no idea what that is supposed to mean, but it suggests there may be some political machinations affecting the pending judgment. Any readers with more knowledge of what’s going on in Serbia on this should feel free to share.
The full text of U.S. State Department Legal Adviser Harold Koh’s speech at ASIL can be found here. Ken has already praised it, Kevin (along with Marko Milanovic) have rejected it, and others are staying neutral or reserving judgment.
Here is what I took away from the speech: The Obama Administration has now embraced the Bush Administration’s position that the U.S. is engaged in an armed conflict with “a nonstate actor, Al Qaeda (as well as the Taliban forces that harbored al Qaeda).” The rest of the legal analysis flows from this basic commitment. Hence, military detention during the conflict is permitted (it turns out, Guantanamo, and even Bagram, are perfectly legal). Targeted killings outside of Afghanistan and Iraq are also legal. Military commissions are an option for Al Qaeda detainees (but not required, of course).
In other words, the basic legal framework of the Bush Administration’s “war on terrorism” has been adopted and maintained by the Obama Administration. Of course, we all knew that, but it is nice to hear someone like Koh confirm this publicly. Ed Whelan and Liz Cheney, you can stop worrying now!
I predict there will be some grumbling but Koh’s stature and credibility with the NGO and international law community will pretty much end the legal debate here in the U.S. about whether we are at “war” (of course, I wasn’t there last night so maybe other folks who attended have a different view). And, frankly, the political inclinations of many folks (but not Kevin!) will give Koh, Clinton, and Obama much more deference than they gave Bellinger, Rice, and Bush. Overseas, this is going to remain somewhat controversial. That’s another matter, but luckily for Koh and other administration officials, Baltasar Garzon has his own legal problems these days.
I’ve long thought that any scholar who wants to maintain his or her credibility should stay far away from the US government, no matter which party is in power. Harold Koh is a case in point. Others have highlighted his problematic testimony about targeted killing, which continued to maintain the Bush administration’s fictions – ably dissected by my friend Marko Milanovic — that we are in some kind of amorphous global armed conflict with al-Qaeda and that the US’s right of self-defense under the UN Charter means that (alleged) members of al-Qaeda have no protection against targeted killing under international human-rights law. I want to focus on Koh’s recent and even more problematic testimony about the crime of aggression, which will be the focus of the ICC’s review conference this June in Uganda.
As the International Law Commission recognized when it looked at this issue in 1996, a state whose leaders are accused of aggression must consent to jurisdiction to be tried in another state’s courts. We believe that it follows that the International Criminal Court’s jurisdiction over such cases, when it derives from national jurisdiction, must similarly require the consent of the State that is accused of aggression.
The 1996 Draft Code of Crimes Against the Peace and Security of Mankind, which was adopted by the ILC in its Forty-Eighth Session, says nothing of the sort. Article 8 does not permit states to prosecute other states’ acts of aggression; it specifically vests jurisdiction over the crime of aggression in an international criminal court. And Article 8 does not require an international criminal court to obtain the consent of the state whose national is accused of aggression.
With respect to the Chair’s second question, our views are well-known: that investigation or prosecution of the crime of aggression should not take place absent a determination by the UN Security Council that aggression has occurred. The UN Charter confers on the Security Council the responsibility for determining when threats to peace and security, including aggression, have taken place. We are concerned by the confusion that might arise if more than one institution were legally empowered to make such a determination in the same case, especially since these bodies, under the current proposal, would be applying different definitions of aggression.
This statement is disingenuous. The Charter does not confer on the Security Council exclusive jurisdiction to determine whether an act of aggression has taken place; both the General Assembly (such as its condemnation of China for acts of aggression toward Korea) and the ICJ (the US’s support for the Contras in Nicaragua) have made that determination, as well. That is why different options for the crime of aggression being considered by the Special Working Group would permit either the General Assembly or the ICJ to trigger the ICC’s jurisdiction if the Security Council fails to act.
The US position is also, of course, a political non-starter…
Every time that I teach international criminal law, at least one student writes on whether you could prosecute the Burmese junta for crimes against humanity. As a matter of substantive ICL, the answer is clearly yes. The problem is jurisdictional — who is going to prosecute them? Apparently, the UK thinks it should be the ICC via a Security Council referral:
Britain is backing moves to refer Burma’s military leaders to the international criminal court for investigation into war crimes and crimes against humanity. The move is part of a heightened campaign to force the junta to embrace genuine democratic reforms, diplomatic and government sources told the Guardian today.
In a tough démarche that will increase pressure on the isolated regime ahead of planned elections this autumn, Britain’s ambassador to the UN said the UK supported a recommendation by the UN special rapporteur on human rights in Burma that The Hague-based international court opens a war crimes investigation.
[snip]
Welcoming Britain’s backing for an ICC referral, Anna Roberts, the director of Burma Campaign UK, said: “The generals in Burma will never allow justice and democracy … Rather than engaging with the fake elections, the international community should focus on putting the generals in jail, where they belong.”
The campaign to bring war crimes charges against junta members, including General Than Shwe, Burma’s de facto head of state, received a boost this month when the UN’s special rapporteur, Tomás Ojea Quintana, described “a pattern of gross and systematic violation of human rights” of Burmese civilians. The abuses, including killings, rape, torture, ethnic cleansing and forced labour, were the result of long-standing state policy, he said.
This is an excellent idea — but, as the UK representative notes, the Security Council is “not sufficiently unanimous.” What he means is that any attempt to refer Burma to the ICC would almost certainly be vetoed by Russia and China, both of whom (see here and here) have major energy interests in Burma and who have vetoed previous Security Council attempts to condemn the regime.
Update: I have had a chance to watch the video twice — I strongly recommend watching it, as it adds considerable language to the statements in the ASIL press release. Given how much I have pressed publicly for a statement by the administration’s lawyers, I want to say this much even while I’m still doing a careful lawyerly parsing of the text.
First, let me praise Harold Koh for stepping up to the plate. This is a plain, clear statement of the US view of the law and its application. It is measured, and yet exceedingly direct. My thanks and congratulations to the Legal Adviser for something that stands as clear opinio juris of the United States. As someone who has been calling every more sharply for a public statement by the administration’s lawyers on targeted killing and drone warfare — most recently in a Weekly Standard article on exactly that theme, and again this week in a sharply worded statement to a House subcommittee hearing, and a clip on NPR this morning recorded several months ago with Ari Shapiro — this was an enormously positive step.
Second, on the substance. On first read, I think this is a great statement. It addresses an armed conflict with Al Qaeda, the Taliban, and associated forces. But it also asserts self-defense several times as an alternative. I had been greatly concerned, frankly, that the administration’s lawyers would narrowly confine the justification for targeted killing using drones to situations that would really only cover the military using them on active battlefields. But on first read, this statement does not do that at all. It appears to address situations of safe havens, for example, and indeed reasserts the traditional US view — that sovereignty and territorial integrity are important, but the US preserves its rights to go after its enemies in their safe havens.
I want a chance to go over the written text and say something much more exact. But given how much, particularly this week on account of the Congressional testimony, my criticisms of the administration’s lawyers have been in the news, I would like to make it known as publicly as possible that, the Legal Adviser’s statement on targeted killing and drone technology is very positive, very strong, and admirably forthright. My congratulations and thanks to the Legal Adviser.
*
I couldn’t cancel classes tonight after so many snow days, so I unfortunately had to miss the Legal Adviser’s keynote at ASIL – I’m doing this from a mobile, but after rumors that the speech would address drone warfare and targeted killing at least in part, I’m very curious and eager to see it, and wonder if anyone could point me in the direction of a link to an official written text of the speech (I need to be able to read it on my mobile). Very grateful if anyone can point me that direction. Thanks.
I love Glenn Greenwald. He catches Obama in a remarkable — and shameless — act of hypocrisy. Obama on why America can’t investigate the systematic human-rights abuses that were ordered at the highest levels of its government:
I’m a strong believer that it’s important to look forward and not backwards.
And Obama on why Indonesia must investigate the systematic human-rights abuses that were ordered at the highest levels of its government:
We have to acknowledge that those past human rights abuses existed. We can’t go forward without looking backwards.
Being American means never having to say you’re sorry.
(Note: I hear Rumors, Unverified Gossip, and Speculation that Legal Adviser Koh will give a formal statement of views on targeted killing and drone warfare at his keynote address at ASIL this week. I would certainly welcome such a statement, of course – I hope that it would be sufficiently broad so as to encompass what the President is actually and most controversially doing (via the CIA as well as the military) as well as what future presidents might do in the world of After Al Qaeda – but in any case, certainly I would welcome a public statement by the Obama administration’s lawyers on this vital topic. Unfortunately, I won’t be able to attend, as canceling class after so many snow days and lost time this semester is a bad idea, but I look forward to the webcast.)
Yesterday (Tuesday, March 23, 2010) I was pleased to appear as a witness before the House Subcommittee on National Security and Foreign Affairs, to discuss drone warfare and Unmanned Aerial Vehicles (UAVs). The list of witnesses is here, along with a link to a webcast (which I can’t seem to open), and links to the witness statements. I am always fascinated to listen to Brooking’s Peter Singer, author of Wired for War. I was particularly interested to hear in this session discussion of the many ways in which UAV technology is entering civilian fields – everything from crop dusting to monitoring schools of fish from the sky. Someone mentioned (but I haven’t verified) that University of Nevada now offers a degree program in UAV control. My points were fairly removed from much of the rest of the technological or military discussion, being aimed squarely at policy and legal policy concerns. In my oral statement, I emphasized the following:
So I think it will turn out to matter quite a lot over the long term that the Obama lawyers eventually opt for the specific law of armed conflict, including its definitions and thresholds under treaty and customary law, or some customary law of self-defense. My guess is that the administration’s lawyers will finally opt for what appears to them to be both a narrower and a superficially reassuring ground of armed conflict that allows them to say that everyone being targeted is a “combatant” in a legal sense. Again, my own view is that this won’t work over the long run – it will degrade as a rationale for the CIA under withering attack from the soft-law community, and it will have a tendency to degrade the law of war itself as rationales suited to a body of rules about large scale, or at least overt, conflict modeled on inter-state armed conflict, continues to pressed into service in an area that is mostly about covert or clandestine operations, and which aims to avoid overt war.
Put more bluntly, as a political evaluation, I think this rationale will work so long, but just so long, as there is an Obama administration. As a legal rationale, armed conflict as a rationale will turn out to be a legally and politically “wasting asset.” The legal attacks on targeted killing and the use of drones therein will be developing, but won’t ripen into active claims of war crimes and so on, at least ones that have teeth, until the Obama administration leaves office. Like many of the Bush-era legal tools in counterterrorism, my guess is that the Obama administration will rely on them – but not legally defend them in ways that leave them plainly and cleanly available to the next president or future administrations.
The excitement over the AQ7 ad put out by Liz Cheney’s organization has died down, but Ben Wittes has this piece up in The New Republic extending the letter that he drafted, and to which I earlier linked, signed by a group of conservative and centrist folks criticizing it. I was one of the signers, and wound up sticking up by own very lengthy comment about it over at Volokh. I didn’t link here at the time, as I thought the tone a little waspish for OJ, but with Ben’s article in TNR, I’ll change my mind and link to it (it’s long and the title is “No Righteous Gentile Award, Please”).
I suppose the key point for Ben and me, in somewhat different ways, is that we have each received much praise from folks on the left for defending Obama lawyers such as Neal Katyal or Jen Daskal. No one objects to praise, or at least I don’t, but much of it was a little misplaced. The praise tended to be as though, in order to defend the Obama lawyers, we had somehow changed our minds about the Bush lawyers. Whereas, for Ben and for me, each in somewhat different ways, the issue was the same. We defended Katyal and Daskal because we had defended the Bush lawyers and thought the same principle applied. I also followed up with an response to conservatives such as Andy McCarthy who attacked the Wittes letter; it too was fairly waspish in tone. What with health care reform, and lots of other things on the agenda, the discussion is moving on, but it has been an important one, and at least among conservatives, a clarifying one.
From the opening of Ben Wittes’s essay:
I’m not much of an Obama fan — though I think the health care bill is a step in the right direction — but at least I’m not certifiably insane. From a recent non-partisan Harris poll:
67 percent of Republicans (and 40 percent of Americans overall) believe that Obama is a socialist.
57 percent of Republicans (32 percent overall) believe that Obama is a Muslim.
45 percent of Republicans (25 percent overall) agree with the Birthers in their belief that Obama was “not born in the United States and so is not eligible to be president.”
38 percent of Republicans (20 percent overall) say that Obama is “doing many of the things that Hitler did.”
24 percent of Republicans (14 percent overall) say that Obama “may be the Antichrist.”
What is wrong with these people?
The Eleventh Circuit in United States v. Frank has ruled that a child sex trafficking statute applies extraterritorially. The statute, 18 U.S.C. § 2251A, provides that:
“[w]hoever purchases … a minor … with intent to promote … the engaging in of sexually explicit conduct by such minor for the purpose of producing any visual depiction of such conduct,” and “in the course of the conduct described … the minor or the actor traveled in or was transported in or affecting interstate or foreign commerce” is guilty of an offense punishable by fine and not less than 30 years’ imprisonment or for life.
In January 2004, Kent Frank, a United States citizen and resident, was detained in Cambodia by the Cambodian National Police (“CNP”) on suspicion of violating Cambodian laws against child sex prostitution. During his detention by Cambodian authorities, Frank admitted that he had engaged in sexual conduct with and had taken sexually explicit photographs of Minors A, B, C, and D on multiple occasions. He confessed to paying the girls $15 or $25 to either photograph them or have sex with them. At some point during the interview, Gary Phillips, the Assistant United States Immigration and Customs Enforcement Attach in Bangkok, Thailand, arrived to meet with Chief Meng Say of the CNP, but did not participate in Frank’s interview. In a separate room, Agent Phillips reviewed the evidence Cambodian officials had seized from Frank’s hotel room.
The Eleventh Circuit upheld the conviction finding that (1) Miranda warnings were unnecessary; (2) the statute applied extraterritorially; and (3) the “purchase” of a child may occur through payment directly to the child, rather than a third party.
The Court found that generally, “statements obtained by foreign officers conducting interrogations in their own nations have been held admissible despite a failure to give Miranda warnings to the accused.” The reasoning behind this rule is that the exclusion of evidence by an American court has little to no deterrent effect on foreign police practices. That is, our “Constitution cannot compel such specific, affirmative action by foreign sovereigns.” Moreover, the joint venture exception does not apply because American officials did not know of Frank’s presence in Cambodia until after he was arrested and did not participate in Frank’s detention or interrogation.
As for the extraterritorial application of the statute, the Court found that because Section 2251A requires that in the course of the prohibited conduct, the defendant or minor “travel[ ] in … interstate or foreign commerce,” Congress plainly intended that the statute sweep broadly and apply extraterritorially. The language of § 2251A requiring travel in foreign commerce, the broad sweep warranted by child pornography offenses, and Congress’s repeated efforts to prevent exploiters of children from evading criminal punishment demonstrate that Congress intended § 2251A to apply extraterritorially. Moreover, such an intent is consistent with international law, which permits jurisdiction under the “nationality” principle.
Finally, the Court held that “purchase” does not require the sale of a minor from a third party to the defendant. In the context of child prostitution, the minor herself is turned into an object or commodity, by selling her body to be used by the defendant for a certain purpose. A minor cannot separate her services from herself because she lacks the capacity to do so. Congress used the term “purchase” alone, rather than “purchase from the minor herself,” “purchase a minor’s services,” or “purchase from another,” to encompass situations where money is paid to a third party and where money is paid directly to the minor. “Purchase,” as used in § 2251A(b), covers situations where a defendant pays a minor directly for sex.
In case you haven’t seen it, make sure to check out Jane Mayer’s demolition of Marc Thiessen’s book-length apologia for torture, “Courting Disaster.” As her review demonstrates, it’s much easier to defend torture when you distort nearly everything.
UPDATE: This, I think, is the money quote:
The publication of “Courting Disaster” suggests that Obama’s avowed determination “to look forward, not back” has laid the recent past open to partisan reinterpretation. By holding no one accountable for past abuse, and by convening no commission on what did and didn’t protect the country, President Obama has left the telling of this dark chapter in American history to those who most want to whitewash it.
I have always been skeptical of claims that trials are well-suited to creating enduring historical narratives. But it is clearly the case that convictions can help prevent certain narratives from becoming accepted. The conviction of even one CIA torturer or a member of the Torture Team for waterboarding would effectively end the ability of people like Thiessen and Stuart Taylor to sell their claim — both historically revisionist and legally wrong — that waterboarding is something other than torture.
Today’s Financial Times has a story on how unhappy U.S. businesses have become about Chinese government restrictions interferring with their access to Chinese markets. So, one can understand how U.S. exporters would welcome news that the United States and China are getting closer to including a Bilateral Investment Treaty (BIT). And, let’s be clear, this would be the mother-of-all BITs, given the relative size and importance of the two economic markets. Like other BITs, I assume this one would include provisions requiring national treatment and most favored nation status, both of which would constrain Chinese efforts to undertake protectionist behavior generally or against the United States specifically.
In Today’s Guardian, however, Sarah Anderson ponders how a Chinese BIT might circle back and affect U.S. markets. She notes how, unlike most U.S. BIT partners, China does A LOT of investing in the United States, and that how those investments get treated will fall under any BIT in much the same way as U.S. investments in Beijing or Shanghai. The result? More investor-state arbitrations, and the possibility of decisions that find against the United States. That possibility, in turn, raises questions about what status any BIT arbitral decision would have in U.S. law.
Bangladesh has ratified the Rome Statute, making it the 111th member of the International Criminal Court. Bangladesh was the first country in South Asia to sign the Statute, which it did on July 17, 1998. I don’t know what explains the 12-year gap between signature and ratification; if any readers know, please chime in below.
Bangladesh’s ratification will have immediate dividends. The country is set to begin prosecuting the individuals responsible for the atrocities committed in 1971 during its struggle for independence from what was then West Pakistan, and Bangladesh’s law minister has indicated that the government will rely on the provisions of the Rome Statute to guide the prosecutions.
Congratulations, Bangladesh!
FADE IN:
INT. KEVIN’S OFFICE — DAY
KEVIN (obscenely young, ridiculously handsome) sits at his desk, poring through archival material. An AUSSIE STUDENT (even younger, not as handsome) enters.
AUSSIE: Hey, sorry to interrupt. Just wanted to say congratulations. I heard the U.S. passed universal health care.
KEVIN: Thanks, but it’s not actually universal. More than 20 million people still won’t have health insurance.
AUSSIE: But I saw some old Republican guy on TV saying it was socialism and the government was taking over health care.
KEVIN: It’s not single payer. The government is just going to help poor people buy private insurance.
AUSSIE: What about that public option thing?
KEVIN: Gone.
AUSSIE: Not-for-profit insurance companies?
KEVIN: Nope.
AUSSIE: So how is the government taking over health care?
KEVIN: Got me.
AUSSIE (frowning): That doesn’t sound like socialism.
KEVIN: Apparently, anything that helps people who aren’t rich is socialism.
AUSSIE: You have a very strange political system.
KEVIN: You have no idea.
The Aussie exits, shaking his head. Kevin returns to his archival material.
FADE TO BLACK.
My book review of the Oxford Companion, edited by Antonio Cassese and many others, has just been published in the new issue of the American Journal of International Law. It’s a decent-sized review, almost 5,000 words, as befits a book that checks in at more than 1200 pages. I argue that the book is a magisterial achievement, one of the most important ever published on international criminal law, but suffers from two important flaws: it reflects an extremely prosecution-centric view of ICL, and it significantly overstates ICL’s coherence. (My favorite example of the former: the entry on code of conduct for defence counsel is twice as long as the entry on the right to counsel.)
The book review is not available on-line without a subscription. If anyone would like to read it but can’t obtain a copy, feel free to send me an email.
You just can’t make this stuff up:
Prime Minister Recep Tayyip Erdoğan has taken a harsh position against undocumented Armenian workers in Turkey, threatening to expel thousands amid tensions over allegations that Armenians were victims of “genocide” during the last days of the Ottoman Empire.
Resolutions passed recently in the United States and Sweden to brand the World War I killings as “genocide” undermine peace efforts with Armenia, Erdoğan said during his visit to London, according to excerpts from an interview with the BBC Turkish service published on the BBC Web site late Tuesday.
[snip]
Referring to about 100,000 undocumented Armenians working in Turkey that Ankara has so far tolerated, Erdoğan said: “So what will I do tomorrow? If necessary, I will tell them ‘come on, back to your country’… I’m not obliged to keep them in my country. Those actions [on genocide resolutions] unfortunately have a negative impact on our sincere attitudes,” Agence France-Presse quoted him as saying.
Hmm, Turkey deporting large numbers of Armenians. Why does that sound so familiar…
Our friends at the University of Amsterdam’s Center for International Law have asked us to announce the European Science Foundation’s upcoming conference, The Responsibility to Protect: From Principle to Practice. Here is the description of the conference, which sounds like it’s well worth attending:
Five years after its acceptance by the 2005 World Summit, it is time to consider the contribution that the Responsibility to Protect (R2P) has made and could make to the prevention of mass atrocities.
The consensus among the Member States of the United Nations, as reflected in the General Assembly debate in the summer of 2009 is broad but not necessarily deep. While there is considerable general support for R2P along the three pillars suggested by the UN Secretary-General (responsibility of states to protect their own populations, assistance and capacity building and timely responses), fundamental questions remain. For instance: what does R2P add to the already existing obligations of states and to the substantial arsenal of instruments at the possession of the international community to prevent and respond to mass atrocities? Does R2P entail a risk of opening the door to external intervention? And how can R2P be operationalised and implemented in concrete circumstances?
Knowledge of the impact of the principle is limited. Recent practice shows both instances of where the international community succeeded (Kenya) and failed (Darfur) to prevent mass atrocities, but in neither of these cases it is obvious that success or failure could be attributed directly to the use, or lack of use, of the concept of R2P.
The conference will be held from June 8-12 in Linkoping, Sweden. Speakers include Francis Deng, Edward Luck, Ambassador Heraldo Munoz, Nicolas Michel, Larry May, Daphna Shraga, and Paola Gaeta. The conference will be chaired by the University of Amsterdam’s Andre Nollkaemper.
The deadline to submit papers for consideration is March 22 — just a few days from now. A draft of the final program is available here.
Japan triumphs in a big way at the CITES meeting in Doha, as the U.S. proposed ban on bluefin tuna trade goes down 20-68.
The rejection of the bluefin proposal was a clear victory for the Japanese government, which had vowed to go all out to stop the measure or else exempt itself from complying with it. Japan, which consumes nearly 80 percent of the bluefin catch, argued that the International Commission for the Conservation of Atlantic Tunas, or Iccat, should be responsible for regulating the fishery, not the United Nations. European Union nations, whose fleets are most responsible for the overfishing of bluefin, abstained from voting in the second round after their own watered-down proposal was rejected.
The U.S. proposal for polar bears also went down, this time with Canada leading the opposition.
I am not a huge fan of restrictive and protectionist trade policy, but I can’t offer any serious legal quarrel with the recently proposed Trade Reform, Accountability, Development and Employment Act by the growing anti-trade bloc in the U.S. Congress. As Lori Wallach from Public Citizen notes, the Act offers a radically new approach to U.S. trade policy. The Act explicitly conditions expedited consideration of trade agreements by Congress to agreements which have addressed labor, environmental, national security, and other considerations. As a policy matter, this goes beyond tying the President’s hands in trade negotiations: It is taking over trade negotiations by essentially mandating the key content of almost any U.S. trade agreement, and gives the President very little flexibility.
From a U.S. constitutional law perspective, the Act is a remarkable attempt to micromanage U.S. trade agreements, by mandating certain provisions before getting expedited consideration before Congress. But since it only applies with respect to expedited congressional consideration, I don’t see any separation of powers problem here. Moreover, the Act even contains a requirement that any trade agreement requiring a U.S. state to comply with procurement or investment rules will not be enacted unless that state’s individual consent is obtained. This appears to give individual states either a veto or a right to “opt out” of the trade agreement.
As a policy matter, I think this means there will be no new trade agreements for the foreseeable future. As a legal matter, we may be seeing a re-assertion of congressional control over certain aspects of U.S. trade policy,and perhaps foreign policy as well.
Sure there is some dispute about settlements in East Jerusalem, or something, but here are some international law disputes that really matter. At CoP15, or the 15th Meeting of the Parties to the Convention on the International Trade in Endangered Species – currently going on in Doha, parties are discussing: resuming (or not resuming) the trade in ivory and imposing a ban on the commercial fishing of bluefin tuna, and a ban on commercial trade in polar bears (a U.S. proposal) as well as other issues. CITES is a fascinating regime for regulating trade in wildlife and conservation. Does it work? That’s always hard to say. At least with respect to the ivory ban, there is reason to think that the ban backfired. But then again, it is hard to imagine Japan battling furiously against the bluefin tuna ban if it didn’t think CITES had real teeth. Then again, like its battles over whales, Japan is increasingly on their own here.
DOHA — Japan was accused of scare tactics at world talks on wildlife protection on Monday as it campaigned against a proposal to curb trade in bluefin tuna, the succulent sushi delicacy….
“Japan’s lobbying is formidable. Three or four people from the Japanese delegation are constantly criss-crossing the Convention, arranging meetings,” he told AFP.
On Sunday, Japanese delegates met with some African nations, said a negotiator from west Africa.
“We are used to it. They do the same thing before each meeting of the International Whaling Commission,” the body that oversees global whale populations, he said.
The general consensus among comments to my post last week on the previously-unacknowledged U.S.-Japanese security agreements was “no big deal.” These pacts reinforce an already well-developed practice of states doing deals–whether legally binding or political commitments–without U.N. registration or public disclosure. Similarly, they reinforce existing views of Executive authority to conclude sole-executive agreements on defense-related matters for the United States.
So, if everyone’s OK with such secret deals, how do we feel about secret negotiations? If you’re the European Parliament (EP), the answer is apparently, “not too good.” Last week the EP voted 633-13 (with 16 abstentions) to call for more transparency in on-going multilateral negotiations for an Anti-Counterfeiting Trade Agreement (ACTA). The ACTA is a proposed agreement by OECD states to strengthen intellecutal property rights enforcement and combat counterfeiting and priacy of music, films, luxury brands, etc. The ACTA negotiations have been on-going since 2007 (the next round begins April 12 in New Zealand) with all the participants agreeing to keep the negotiations confidential. Members of the EP apparently have problems with this lack of transparency and want to see (and have the public see) what the negotiators are up to. Here’s what the EP press release had to say:
The Commission and the Council should grant public and parliamentary access to the Anti-Counterfeiting Trade Agreement (ACTA) negotiation texts and MEPs should be fully informed in good time about their initiatives, says an EP resolution adopted on Wednesday by 633 votes in favour, 13 against, and 16 abstentions. Otherwise, Parliament “reserves its right to take suitable action, including bringing a case before the Court of Justice in order to safeguard its prerogatives.”
Parliament called on the Commission to continue the negotiations on ACTA and limit them to the existing European intellectual property rights enforcement system against counterfeiting” . . . In its resolution, Parliament voices concern over the lack of transparency in the negotiations, and the fact that no parliamentary approval was sought for the negotiating mandate. MEPs recall that, since the entry into force of the Lisbon Treaty on 1 December 2009, “the Commission has had a legal obligation to inform Parliament immediately and fully at all stages of international negotiations.” ACTA provisions “should not affect global access to legitimate, affordable and safe medicinal products, including innovative and generic products”, says the resolution.
USTR is leading the talks for the United States, and it appears pretty tight lipped on the progress of negotiations. That said, it appears they’ve taken precautions to keep at least some interested stakeholders in the loop — provided those stakeholders agree to keep mum on what they learn because of the negotiations’ “national security” implications.
Having done a fair bit of treaty negotiations when I served in the State Department, I’m certainly not a Wilsonian when it comes to such talks. There’s a lot to be said for keeping talks confidential, most notably in allowing a more honest exchange of what positions parties believe they can accept without having to posture for domestic audiences. Others, however, assume that when treaty obligations would directly effect individuals, the public has a right to know the proposed terms of any deal. Here, the United States is apparently proposing to do this as a sole executive agreement, meaning that neither the Senate nor Congress would have to consent to the agreement. Of course, that also means that the agreement would need to find its authority under existing U.S. IP laws or areas of sole executive authority. If so, that seems to undercut any argument that the ACTA will have dramatic domestic impacts (at least for those in the United States). Still, I’d be interested what others view as an acceptable line between public and confidential negotiations. Am I being too kind to government interests in favoring a broad entitlement to confidentiality at least until the negotiators reach agreement on a text?
Of course, whether or not you believe secret negotiations are appropriate may now be a moot point. If the ACTA is any guide, the reality is that confidential multilateral negotiations are rarely confidential. Leaks abound. Indeed, the EP vote appears to have been a reaction to the latest in a long line of leaks about the various negotiating positions. My My sense, moreover, is that this reflects a general trend in multilateral negotiations. Bilateral negotiations (or those involving a handful of parties) may still get the benefits of confidentiality. But once you get a certain number of participants involved (not to mention the stakeholders they consult, with or without confidentiality agreements), it becomes very hard to avoid leaks and other disclosures. Now maybe some confidentiality is better than none. But I believe that the age when multilateral negotiators could work largely in secret has passed. And, if that’s the case, those going into such negotiations need to operate under a different set of assumptions in terms of the positions they advance, and the deals they cut. In the information age, if those positions and deals are at all disputed, we should expect they’ll get posted somewhere on the Internet, and dispensed with remarkable rapidity to those interested (including, one expects, the Opinio Juris community).
Ilya Somin has a characteristically thoughtful post on the shortcomings of the U.N. system for promoting human rights and of international human rights law more generally, as seen in the recent hapless efforts of the U.N. Human Rights Council to protect Iranians from repression by their own government.
The bottom line is that the main weaknesses of the international human rights system are structural. By giving so much influence to the very sorts of governments that human rights law is supposed to constrain, it actually empowers oppressors much more than victims. In the short run, liberal democratic governments should work to limit the scope of the system and and prevent its pernicious elements from overriding their own domestic law, a point McGinnis and I emphasized in our articles linked above. In places like Iran, progress in protecting human rights probably depends on action by liberal democracies and internal dissidents acting outside the confines of the UN system. Liberal democracies cannot and will not always prioritize the promotion of human rights. But they have fewer perverse incentives on these issues than dictatorships do.
I pretty much agree with Somin’s critique of the UN human rights system. On the other hand, I am not sure what the U.S. and other liberal democracies’ posture should be with respect to the UN system. Rather than vilify the system, I think the U.S. should make a good faith effort to participate in the system (e.g. the current Obama Administration policy). On the other hand, the U.N. system cannot be seen as the only legitimate source of the content of international human rights law. U.S. and other liberal countries’ participation must never concede this point, and must always retain the option for a non-U.N. mechanism to enforce and protect human rights if the U.N. continues to be “captured” by unsavory regimes. A separate “League of Democracies” might help. I admit this sort of balancing policy is tricky, and the U.S. has never quite figured out how to do this. I am curious what his approach would be or the views of our readers.
Here is another persuasive account of why the U.S. is disadvantaged by not joining the UN Convention on the Law of the Sea. The case is fairly simple: There is a lot of oil and natural gas up there, and the U.S. can’t negotiate with other countries to divvy it up until it signs on to UNCLOS.
The 5.5 million-square-mile area north of the Arctic Circle — part of the U.S., Russia, Canada, Denmark (which owns Greenland), Finland, Norway, Iceland and Sweden — contains up to 25 percent of the Earth’s undiscovered oil and gas reserves, according to the U.S. Geological Survey. . . .But to remove those resources you have to own them, and nations are now scrambling to claim vast new areas of sea bottom. They can do so by proving them to be extensions of their continental shelves. In summer, U.S., Russian, Canadian, and Danish scientists aboard icebreakers conduct studies to support claims submitted to a U.N. commission. In theory, the U.S. could gain an undersea region as big as California.That’s the good news, but the bad news is that the United States is last in the claims race. The U.N. Commission on the Limits of the Continental Shelf has begun examining claims from Russia and Norway, which could be granted before the U.S. formally joins the process. Although the U.S. is gathering information for a claim, it cannot be submitted — nor can the U.S. have a say in the claims of other nations — until the government signs an international treaty. The agreement under which the apportionment of riches will go forward — the 1982 Law of the Sea Convention – lays out a comprehensive set of rules governing ocean issues, including protection of marine environments. All Arctic nations except the U.S. have signed. “If this were a ball game,” one Coast Guard admiral told me, “the U.S. wouldn’t be on the field or even in the stadium.”
The following is a guest post by Lt. Col. Chris Jenks, the Chief of the International Law Branch in the U.S. Army’s Office of the Judge Advocate General. Lt. Col. Jenks is posting in his personal capacity.
On March 8th, the Supreme Court “invited” the Solicitor General to file a brief in Carmichael v. Kellogg, Brown & Root (KBR), a case pending a certiorari decision by the Court. Carmichael involves the application of the political question doctrine (PQD) to government contractor tort liability on the battlefield, an issue which extends well beyond just this case.
In May, 2004, Sergeant (SGT) Keith Carmichael was a military escort and passenger in a KBR tractor-trailer in Iraq when the contractor employee driving lost control of the vehicle, which plummeted into a ravine. SGT Carmichael suffered severe injuries — his wife filed suit on his behalf. The District Court for the Northern District of Georgia initially denied KBR’s motion to dismiss, but after two years of discovery the court dismissed the case on PQD grounds. The US Court of Appeals for the 11th Circuit affirmed that decision, holding that to adjudicate Carmichael’s claims would require judicial second guessing of how the military conducts war time convoy operations.
Carmichael is one of at least 17 cases in which contractor defendants have asserted the PQD as a defense. The lawsuits stem from alleged wrongs committed in both Iraq and Afghanistan, and have been filed by plaintiffs ranging from former detainees suing contract interrogators and interpreters, to contract employees suing contractors following insurgent attacks, to US service members, like SGT Carmichael, suing contractors after vehicle and aircraft crashes. One interesting aspect of this litigation is that the fundamental aim of the PQD is to address whether the judiciary should review government action or decisions — yet private contractors are asserting the defense in cases where the US government is not a named party and has yet to intervene or submit an amicus brief in any of the cases.
Prior to Carmichael, two other federal appellate decisions found that the PQD did not preclude battlefield related litigation. In the first, McMahon v. Presidential Airways, the 11th Circuit considered the crash of a Blackwater subsidiary aircraft in Afghanistan, which killed several U. S. service members (the crash and subsequent litigation were featured on a recent 60 Minutes episode). In the second, Lane v. Halliburton, the 5th Circuit reviewed suits filed by KBR truck drivers (or their representatives) who were injured or killed when insurgents attacked their logistics convoy in Iraq in 2004. Yet in Carmichael, a convoy accident case with no overt combat related factors (IEDS, insurgents, etc.) the same 11th Circuit from McMahon held that the PQD applied. One way to reconcile McMahon and Carmichael is the amount of discovery; the dismissal in McMahon came relatively early on while in Carmichael there had been two years of discovery.
While the Supreme Court’s invitation to the Solicitor General does not mean the Court will grant Carmichael’s certiorari petition, it would seem to make such a grant more likely. The potential outcome may well be the court addressing a host of important issues, ranging from the separation of powers inherent in the PQD, to the scope of the executive branches’ authority (and responsibilities) in wartime and the implications of the US military’s reliance on contractors. Regardless of whether the Court hears the case, the first notable event will be whether, in a case pitting a severely injured combat veteran against a government contractor, the US government accepts the Supreme Court’s invitation to submit a brief. If so, it will be the first time that the Executive branch makes its views known on whether and how the PQD applies to government contractor tort liability on the battlefield.
In the long-running battle between Chevron and Ecuador over environmental damage, a federal court in New York has denied Ecuador’s motion to stay arbitration of a Ecuador-U.S. BIT claim. In September 2009, Chevron filed a notice of arbitration alleging, among other things, that “Ecuador has breached … the Ecuador-United States BIT, including its obligation to afford fair and equitable treatment, … an effective means of enforcing rights, non-arbitrary treatment, [and] non-discriminatory treatment.”
In the hearing this week, counsel for plaintiffs in the underlying Ecuadorian litigation described the arbitration as “a collateral attack” on a future Ecuadorian judgment. “There is no demonstration that there’s even any prejudice to Chevron at this point,” said Jonathan Abady. “There’s no judgment that has been rendered.” The Court nonetheless denied Ecuador’s motion to stay the BIT arbitration and allowed the question of due process violations to go forward to arbitration:
The petition contains … specific grounds asserted by Chevron why a judgment rendered against it pursuant to the litigation now pending in the Ecuadorian Court would not be one rendered in accordance with due process…. I am returning only the arbitrability of the due process claim, and I am expressing no opinion with respect to any other claim or with respect to any claim for relief. Those matters are for the arbitrators. There are also significant issues that have been raised concerning the timing of proceedings before the arbitrators, specifically, whether the arbitration can commence prior to the rendering of a decision in the suit now pending, and that is one of the … many issues for the arbitration panel to determine, giving consideration to the interests of the parties in matters of timing, which seems to be a great concern.
My sense is that Chevron is bringing this action not only in an attempt to succeed on the merits of its due process claim, but also to send a signal to the Ecuadorian court that any future action that denies Chevron basic due process will be subject to international scrutiny. The Ecuadorian court now faces the unpleasant prospect of knowing that the Ecuadorian government may be on the hook financially for any improper judgment rendered against Chevron.
I also think it is quite plausible that the BIT arbitration is an opening salvo in future attempts by Chevron to challenge the enforcement of the Ecuadorian judgment in foreign courts. If a BIT arbitration panel concludes that Chevron has been denied due process, this would significantly bolster arguments that the foreign judgment should not be enforced in the United States under the Hilton v. Guyot standard. If the arbitral tribunal concludes that Chevron has been denied due process or fair and equitable treatment in the Ecuador litigation, then it will be difficult to enforce an Ecuadorian judgment in the United States consistent with the Hilton test requiring a showing of “a full and fair trial abroad … under a system of jurisprudence likely to secure an impartial administration of justice … and [that] there is nothing to show either prejudice in the court … or fraud in procuring the judgment.”
It is always unpleasant to get lectured by foreign governments about “violating international law”, but this is something U.S. government officials should be used to. Still, it must be galling for the new U.S. administration to be lectured by Brazil’s president over U.S. non-compliance with a WTO ruling on cotton subsidies.
The United States must comply with a World Trade Organization ruling on U.S. cotton subsidies to uphold international law and order, President Luiz Inacio Lula da Silva said on Wednesday.
Brazil detailed on Monday a list of 102 U.S. goods that will be subject to import tariffs within 30 days unless both countries can reach an agreement to settle a long-standing dispute over U.S. cotton aid considered illegal by the WTO.
“Brazil is not interested in confrontation. We’re interested in respect for the decisions of the WTO. Either we respect institutions or the world will fall into disarray,” Lula said during the inauguration of a power plant in near Sao Paulo.
The U.S. is ready to make a deal, except that it has very little to deal with. After all, the U.S. Congress (with full knowledge it was violating the WTO ruling), re-authorized the subsidies at dispute here. So the best the U.S. Trade Rep can do is promise to try to get Congress to change the law. If I am Brazil’s President, I wouldn’t take that deal.
Yesterday, the Japanese Government (now led by the Democratic Party after nearly five-plus decades of rule by the Liberal Democratic Party) confirmed that in the 1960s Japan and the United States entered into a series of secret defense pacts. Specifically, a committee of scholars has identified various tacit agreements allowing U.S. warships to carry nuclear weapons into Japanese ports, granting unrestricted use of U.S bases in Japan in the event of a renewed Korean conflict, and requiring Japan to fund the clean-up of U.S. bases in Okinawa after it regained control over that territory in 1972. For years, the Japanese government had denied these agreements existed, notwithstanding widespread suspicions that they did. Thus, most of the media attention has focused on how yesterday’s disclosures will play out under the Japanese legal system (especially given the Constitution’s renunciation of war). Others have asked if the admission signals some new shift in U.S.-Japanese foreign relations.
I’m curious, however, about two other issues. First, what status, if any, did these pacts have under international law? Although colloquially referred to as “secret treaties” in Japan, it’s not clear to me whether there were any actual treaties involved. The Japanese government’s disclosure raises interesting questions about the ability of states to do oral and secret treaties as well as how we should differentiate such legal instruments from political commitments. Second, apart from the international legal status of these deals, there’s the question of their status under U.S. law. Under what authority did the United States conclude them? If they were intended to be legally binding, were they done as executive agreements pursuant to the President’s foreign affairs or commander-in-chief powers? Or, was there some congressional authority that warrants considering them as congressional-executive agreements? And if they were not legally binding, does that mean the President could do them without consulting Congress at all?
I’m not exactly surprised to read this:
United Nations human rights investigators called on the Obama administration on Tuesday to prosecute the accused September 11 masterminds in a civilian court, declaring that U.S. military tribunals would not be fair.
The White House is reviewing options to bring the 9/11 detainees to justice and U.S. officials said on Friday senior administration officials may recommend that Khalid Sheikh Mohammed and four other suspects in the 2001 attacks face a military trial.
“I take the view that the Military Commissions Act is fundamentally flawed. It is very far from international fair trial standards and probably cannot be fixed,” said Martin Scheinin, U.N. special rapporteur on the protection of human rights and fundamental freedoms while countering terrorism.
But I am surprised just how little the opinion of these rapporteurs matter in the burgeoning U.S. debate over where to try the 9/11 terrorists. No one in the Obama Administration seems to care much. I wonder if they have even bothered to issue a rebuttal. After all, the current military commission system was amended in accordance with proposals from the Obama Administration, supposedly to make them compliant with domestic and international standards. A rebuttal seems necessary at some point. Another task for our State Department’s Legal Adviser?
Given our past discussions about State Department Legal Adviser Harold Koh on this list, I thought I’d pass along word of an upcoming event some might find of interest. My colleagues at the American Bar Association’s Standing Committee on Law and National Security are hosting a breakfast discussion with Koh this coming Tuesday, March 16, from 8:00-9:00 a.m. The event is open to the public and will be held at the University Club, 1135 16th Street, N.W., Washington, D.C. Registration is required, as is payment: the cost is $25.00 per person. If readers in the D.C. area are interested in attending, contact committee staffer Matthew Owens, owensm [at] staff [dot] abanet [dot] org.
Amid the war of words between Germans and Greeks over a possible Greek bailout, the Deputy Prime Minister of Greece has accused the Germans of stealing “the Greek gold that was in the Bank of Greece, they took away the Greek money and they never gave it back…” This was part of the reason why Greeks (presumably the ones now boycotting German goods) are not exactly feeling grateful to Germany for possibly bailing out their troubled public finances. As I understand it, some Greeks have maintained claims against Germany for wartime abuses and thefts. Germany’s response, I believe, is to cite the 1960 FRG-Greece treaty as a final settlement of all such war-related claims. I take it the protesters in Greece don’t accept this lawyerly argument, even though it is a pretty persuasive one. It demonstrates the limit of even ironclad international law obligations to settle deep-seated political disputes. Will the Germans ever get out from under the WWII guilt trip? Probably, but international treaties won’t be vehicle to do so.
The always knowledgeable Marko Milanovic, responding to an earlier post of mine, reviewed the possibility of an international tribunal resolving the Falklands dispute here, and concludes that no court decision will happen because ”… the Falklands dispute is, as a political matter, almost singularly unsuitable for judicial resolution.”
Marko’s argument seems persuasive. There is a long and confusing historical record to battle over with respect to title, and there are serious questions about the right of “self-determination” as applied to the Falklands. Yet there are many more difficult disputes that have been tossed to the ICJ (see, e.g., Kosovo). So I’m not sure why this dispute is particularly worse. Indeed, there seems to be lots of law where, and lots of interesting facts. It would make a terrific case.
But Marko is of course right that the UK might indeed lose, and so might Argentina. But that always seems to be the case in ICJ cases. And this could happen. The UK has accepted the ICJ’s compulsory jurisdiction. All Argentina would have to do is accept compulsory jurisdiction and take the UK to the World Court.
But having thought about and read about it some more, I begin to see why this won’t happen. What is different here, as this article suggests, is the stakes. Oil! Natural gas! The stakes are simply much too high to permit some random judges in the Hague to determine the outcome here. So it is dumped back in the realm of politics, where it belongs.
As I have noted earlier, there is a pitched battle between victims of Pan Am 73 terrorist hijacking over the distribution of treaty funds secured by the United States for American victims in a 2008 diplomatic settlement with Libya. The treaty and Executive Order stipulate that the money shall be distributed solely for the benefit of United States nationals, but foreign nationals are claiming that they are entitled to the overwhelming majority of the funds pursuant to a Joint Prosecution Agreement signed among the passengers of Pan Am 73, most of whom were non-Americans. The American terrorist victims argue that the contract is inapplicable to a diplomatic settlement, and alternatively, that it is void for public policy because the contract cannot contravene the federal policy designed to distribute these funds for American victims, and only American victims. They contend that the JPA places an obstacle in the way of the United States’ efforts to effectuate the comprehensive settlement on behalf of U.S. nationals and undermines the essential purpose of applicable federal law.
Last week, a federal district court judge in Washington, D.C. heard oral arguments on a motion to compel arbitration of this dispute pursuant to an arbitration clause in the Joint Prosecution Agreement. Press reports of the developments are here, here, and here.
One of the most unusual twists in the case is that the implementing statute, the Libyan Claims Resolution Act (“LCRA”), immunizes the assets from “attachment or any other judicial process” before, during, and after the assets are held by the U.S. Department of Treasury for distribution to the American victims. In other words, when Treasury cuts a check to the American victims who succeed before the Foreign Claims Settlement Commission, those assets remain immune from attachment or any judicial process. How then can non-American victims attempt to seize those assets pursuant to a contract claim? The answer should be that they cannot. Consistent with the arbitrability doctrine, a competing federal statute overrides the general requirements of the FAA, precluding arbitration of the contract claims….
Politico (linked here to Yahoo) carries a story today on a letter drafted by Benjamin Wittes and signed by a number of conservative and centrists lawyers, former Bush administration officials, and policy analysts on conservative attacks on the role of lawyers in terrorism cases – the so-called Al Qaeda 7 at the Justice Department. I’m one of the signers, but there are many more important and prominent signers, including John Bellinger, Matthew Waxman, David Rivkin and Lee Casey. It will almost certainly gain more signatures as the week goes on, and my thanks to Ben for putting it together.
Our friends at the German Yearbook have asked us to post the following call for papers, and we are happy to oblige:
The German Yearbook of International Law is Germany’s oldest yearbook in the field of public international law. The GYIL is published annually by the Walther Schücking Institute for International Law at the University of Kiel and contains contributions on topics addressing international law, including neighboring fields such as international criminal law, international humanitarian law, international economic law, and the international law of the sea. We aim to provide a forum for scholars in international law – both inside and outside Germany – to publish new research on and analysis of current issues in international law. The Yearbook features a ‘Forum’ for which a prominent scholar of international law is invited to write a stand-alone article and a ‘Focus’ section for which a group of experts are invited to write articles examining various aspects of a topic set in advance by the editors. Recent Focus sections have examined regional human rights mechanisms (2009), poverty as a challenge to international law (2008) and German approaches to international law (2007). The 2010 Focus section will examine climate change.
In a departure from past editions, the “General Articles” section of Vol. 53 (2010) of the GYIL will be open to submissions from the entire academic community, which will be independently peer-reviewed by a community of renowned experts. All work submitted will be scrutinized based on its intellectual quality and its significance in advancing academic discourse. The Editors have thus decided to issue this general call for papers to invite interested parties to submit a paper for consideration for inclusion in the forthcoming edition.
Persons interested in publishing in the GYIL should submit a manuscript conforming with the house-style of the GYIL (which is available on request) dealing with any topic of interest in the field of public international law to the editors by 1 September 2010. Potential authors are also requested to include a brief biographical statement, including information regarding current academic affiliations and general research interests. All inquiries and materials should be addressed to the assistant editors of the GYIL via e-mail: yearbook [at] internat-recht [dot] uni-kiel [dot] de
That’s a bit of an overstatement, but this review of Michael Byers’ latest book: Who Owns the Arctic: Understanding Sovereignty Disputes in the North, reminds me of the surprising legal positions taken by Russia, Canada, and the United States over the legal status of the Northwest Passage.
It is ironic that while Russia supports Canada’s claim to the Northwest Passage, the United States opposes it. With the recent disappearance of multi-year ice, the Passage (or Passages, for there are several) gives access to shipping through the Canadian archipelago of 19,000 islands that lie scattered in a huge pyramid from Iqaluit in the east to the Beaufort Sea in the west, with its apex at the northern tip of Ellesmere Island.
It is also ironic that Canada is in the position of making aggressive claims for territorial sovereignty, while the U.S. is all of a sudden the guardian of the international community’s interest in keeping the seas free. And it is ironic that Byers, no sovereigntist, is a sharp critic of Canada’s failure to more aggressively assert its territorial sovereignty.
I doubt it has a chance of passing, but it would be interesting to see how many votes this bill will get:
A small group of U.S. lawmakers unveiled legislation on Thursday to withdraw from the North American Free Trade Agreement in the latest sign of congressional disillusionment with free-trade deals.
The bill spearheaded by Rep. Gene Taylor, a Mississippi Democrat, would require President Barack Obama to give Mexico and Canada six months notice that the United States will no longer be part of the 16-year-old trade pact.
Next up: a vote later this year on whether to stay in the WTO.
As Opinio Juris readers know, the U.S. Supreme Court heard arguments on Wednesday in the case of Samantar v. Yousuf (briefs and transcript available here), which asks the Court to interpret the 1976 Foreign Sovereign Immunities Act. Commentators, including OJ’s own Julian Ku, have reported that the Justices seemed “unconvinced by all sides” (Julian’s words) and that none of the lawyers “seemed to make a convincing case” (according to Lyle Denniston over at ScotusBlog). The Justices did not seem unconvinced about what the FSIA actually says. But they seemed to wish that it provided more guidance on a subject about which it is silent, namely, the various immunities that may be available to former foreign officials such as Samantar. The question now is whether they will interpret the FSIA as it is (leaving the question of individual immunities to be worked out by the lower courts in the first instance), or whether they will instead interpret the statute as they would like it to be.
When Congress passed the FSIA in 1976, it had a particular problem in front of it: the diplomatic pressures that were being brought to bear on the Executive Branch by foreign states who wanted the U.S. State Department to conclude that a given action was based upon a commercial activity, and that the foreign state or state entity was therefore immune from suit under the terms of the 1952 Tate Letter. But this suit for torture and extrajudicial killing was brought against Samantar, a former Somali official who now lives in Virginia, not against Somalia itself. As Justice Kennedy interjected after Samantar’s lawyer Shay Dvoretzky had barely introduced himself, “I’m having difficulty seeing how the issues as presented in the brief really resolve very much.” That is because, with respect to suits against individuals, the FSIA doesn’t resolve very much.
Does that mean that plaintiffs can simply circumvent state immunity by naming individuals as defendants? No. In certain cases, suits against individuals may well be the functional equivalent of suits against the state, in which case, as Justice Ginsburg emphasized, “[w]hether it’s injunctive relief or money relief, if the relief is against the state, obviously, you can’t dodge it by naming the officer.” But (again in Justice Ginsburg’s words) “this is a case seeking money out of the pocket of Samantar and no money from the treasury of Somalia.” Even though states necessarily act through individuals, individuals can be held accountable for their acts without violating the immunity of states for those same acts. (If a concern arises that adjudicating a particular claim would require invalidating the act of a foreign sovereign taken within its own territory, that can be resolved under the Act of State doctrine, as Justice Ginsburg and Justice Breyer emphasized at oral argument.) It would be bizarre to suggest that a U.S. court couldn’t impose consequences on an individual such as Charles “Chuckie” Taylor Jr. by sentencing him to prison for torture committed in Liberia just because Liberia itself would enjoy immunity for torture under the FSIA. The same is true of consequences in the form of civil remedies….
Cross-posted at Balkinization
This morning’s papers bring news from anonymous administration officials that “President Obama’s advisers are nearing a recommendation that Khalid Sheik Mohammed, the self-proclaimed mastermind of the Sept. 11, 2001, attacks, be prosecuted in a military tribunal.” See The Post’s story here.
While I always take such preview reports with a grain of salt (is it an official trial balloon, or an unofficial attempt to sway the debate the other way?), it’s hard to let this one go by. If the reports are true, the President is getting some unfortunate advice. And is at risk of losing the best chance of getting KSM’s case off the front pages before the 2012 elections.
The reasons why federal criminal prosecution is the right answer for KSM have been set forth well and in detail elsewhere, and I generally won’t recapitulate them here. The arguments seem already to have persuaded the President’s top “advisers”: the Attorney General, who had announced plans to try KSM in the criminal courts in New York, and the Vice President, who said just two weeks ago that “[w]e have no doubt the best, most effective legal way to get his guy behind bars for the longest time and get the most information with the most certainty is in an Article Three court.” The Secretary of Defense has likewise rejected the notion that the President should be precluded from pursuing civilian trials where appropriate. See this joint letter from Secretaries Holder and Gates, noting that “we ensure that all relevant factors are carefully considered when determining the appropriate forum in which to try a particular case.”
So what’s driving the shift? Most reports suggest that the Administration thinks if it capitulates on the KSM trial, Sen. Lindsey Graham will help the White House to win the funding and legal authority it now needs from Congress to close Guantanamo – a political motive in the strictest sense of the term. On that score, I guess count me skeptical that any Senator has the power to get a majority of members of both houses of Congress to vote in favor of allowing any Gitmo detainees to be brought to the United States for detention in an election year. But who knows?
The bigger looming danger is on the legal front. It’s easy to start with the historical odds that a post-9/11 trial before a military commission will founder. (The federal courts stunning track record of success in prosecuting terrorism cases of this kind only gets more impressive when one compares it to the record of even completed cases before the old military commissions). But maybe more important, if the Administration shifts gears now – worse, if the President overrides the very public recommendation of his Attorney General – it hands defense counsel a much stronger argument against the legitimacy of commission trials than they already had. Namely, the argument that the Executive’s choice between Article I commissions and Article III courts is constrained by no principle in law – no finding of a state of armed conflict, no international law-based set of charging offenses, no even military determination of necessity (given that Holder and Gates “carefully considered… all relevant factors” in making the KSM-civilian-trial decision the first time) – but is rather a pure question of expediency, a choice that can depend equally on whether the defendant committed a war crime as on whether the defendant’s Senator can deliver a vote on, say, health care. (That the putative vote in this case happens to be about detainee issues rather than any other voting issue of congressional concern doesn’t seem to me to make a difference in assessing the legality, or not, of the Administration’s basis for choosing a military trial over a civilian court.)
You might accept or not my argument that selection between forums on such a basis raises a constitutional question (see here or my Senate testimony here). But it would be a mistake to think the courts don’t care about atmospherics such as this. Indeed, I was this morning recalling the reaction by the Fourth Circuit Court of Appeals (in an opinion authored by conservative judge (and once thought Supreme Court contender) Michael Luttig) after the Bush Administration announced its intention to try Jose Padilla before federal criminal court after maintaining before – and successfully persuading – the Fourth Circuit that national security necessity required the President to have the power to hold Padilla as an “enemy combatant” in the “war on terror.” The issues were of course different there. The question involved detention power, not trial forum per se; and the Bush Administration was actively aiming to avoid renewed Supreme Court review of the Padilla case, a case it by then appeared likely to lose. But Judge Luttig’s apoplexy seems worth remembering as the Administration gears up for the mammoth litigation sure to follow an attempt to prosecute KSM before yet another set of military commissions:
“The government cannot be seen as conducting litigation with the enormous implications of this litigation — litigation imbued with significant public interest — in such a way as to select by which forum as between the Supreme Court of the United States and an inferior appellate court it wishes to be bound…. [A]s the government surely must understand, although the various facts it has asserted are not necessarily inconsistent or without basis, its actions have left not only the impression that Padilla may have been held for these years, even if justifiably, by mistake –- an impression we would have thought the government could ill afford to leave extant. They have left the impression that the government may even have come to the belief that the principle in reliance upon which it has detained Padilla for this time, that the President possesses the authority to detain enemy combatants who enter into this country for the purpose of attacking America and its citizens from within, can, in the end, yield to expediency with little or no cost to its conduct of the war against terror –- an impression we would have thought the government likewise could ill afford to leave extant. And these impressions have been left, we fear, at what may ultimately prove to be substantial cost to the government’s credibility before the courts, to whom it will one day need to argue again in support of a principle of assertedly like importance and necessity to the one that it seems to abandon today. While there could be an objective that could command such a price as all of this, it is difficult to imagine what that objective would be.”
Wow! It’s not a done deal, but it sure looks like Khalid Sheikh Mohammed is going back to a trial before a U.S. military commission, the Washington Post reports.
President Obama‘s advisers are nearing a recommendation that Khalid Sheik Mohammed, the self-proclaimed mastermind of the Sept. 11, 2001, attacks, be prosecuted in a military tribunal, administration officials said, a step that would reverse Attorney General Eric H. Holder Jr.’s plan to try him in civilian court in New York City.
The president’s advisers feel increasingly hemmed in by bipartisan opposition to a federal trial in New York and demands, mainly from Republicans, that Mohammed and his accused co-conspirators remain under military jurisdiction, officials said. While Obama has favored trying some alleged terrorists in civilian courts as a symbol of U.S. commitment to the rule of law, critics have said military tribunals are the appropriate venue for those accused of attacking the United States.
I get the New York City thing, but I am not quite sure that other parts of New York wouldn’t have welcomed the trial. Sure, there are logistical problems, but I wonder if there isn’t also a reversal of principle here. Obama and Holder are going to have to swallow a lot of high-falutin language about the supposed irresponsibility of the Bush Administration on this stuff, if they do reverse themselves here.
UK Prime Minister Gordon Brown announced (h/t Jurist) proposals to circumscribe the applicability of Britain’s universal jurisdiction law. The modification will likely cut back on the ability of private citizens to seek arrest warrants, by requiring a determination by a public prosecutor before issuing such warrants. The details are not clear, but the policy underlying it is:
There is already growing reason to believe that some people are not prepared to travel to this country for fear that such a private arrest warrant – motivated purely by political gesture – might be sought against them.
These are sometimes people representing countries and interests with which the UK must engage if we are not only to defend our national interest but maintain and extend an influence for good across the globe.
Britain cannot afford to have its standing in the world compromised for the sake of tolerating such gestures.
This seems like a common-sense move, and I only wonder it hadn’t been done already. The UK joins Spain and Belgium in cutting back on its universal jurisdiction laws. Do I sense a trend?
Two different but interesting views of Australia’s threat to bring Japan to the ICJ over whaling.
Over at The Jurist, Don Rothwell of Australian National University provides some background and legal context for Australia’s lawsuit. As I understand it, Australia could claim that Japan is actually violating Australia’s 200 mile exclusive economic zone (assuming certain Australian Antarctic claims were accepted). But it seems more likely that Australia will try to make a claim under the 1946 International Convention for the Regulation of Whaling. As I’ve suggested, this seems a very tough case to make, and Japan may get the IWC to alter its rules anyway.
Over at the Australian, Greg Sheridan points out that the Japanese government is not taking Australia very seriously on this issue, and sees it as essentially a domestic political matter for Australians. And he goes on:
As well, observers of all stripes are dumbfounded at the Rudd government’s decision to blindside Japan’s Foreign Minister Katsuya Okada just before his visit to Australia. Canberra did this by announcing, on the eve of Okada’s arrival in Australia and without any warning to the Japanese, that it had decided to take Japan to the International Court of Justice over whaling. There is not the slightest chance of this court action succeeding. To insult Okada, the most pro-Australian member of Tokyo’s core leadership, in this manner was extremely foolish.
Emphasis added. I think Sheridan is not far wrong. Unless Australia is going to make the EEZ argument, it doesn’t seem like it has a very strong case. And even if they somehow win, there is very little chance of Japan complying with the ICJ order.
Last fall, the U.S. joined Egypt in a carefully worded statement in favor of free expression, but it raised concerns that the U.S. was implicitly endorsing the movement in many Islamic countries to ban blasphemous (or anti-Islamic) speech. In an otherwise anodyne address to the Chicago Council on Foreign Relations, U.S. Assistant Secretary of State for International Organization Affairs Esther Brimmer provides this nugget of policy:
First, the Administration takes seriously the concerns of some states regarding combating discrimination on the basis of race and religion. At the same time, we are deeply troubled by efforts to impose a global ban on defamation, the equivalent to an international blasphemy law. It is a priority of this Administration, at the Council, to find a consensus based approach to address racial and religious intolerance – however we will not support efforts at the Council that would protect minorities from offense by restricting free speech. We are committed to a respectful, inclusive approach that speaks to real concerns of discrimination and intolerance, but leads to an acceptable path where governments can take concrete action to make progress and promote mutual respect.
Of course, the devil is in the details. This hardly fully addresses the concerns discussed above. But it shows (hopefully) that the Administration sees the problem, and is willing to draw the line in favor of free speech. Maybe this is just wishful thinking on my part…
The Foreign Sovereign Immunities Act of 1976 is perhaps the most important example of the U.S. Congress exercising its power to implement and interpret international law principles as part of domestic law. It is a basic and foundational statute implicating almost all kinds of international litigation in the U.S. And it is a statute which the Supreme Court (and lower courts) can’t get enough of. Today, the U.S. Supreme Court heard oral arguments in Samantar v. Yousef, at least the third FSIA case the Court has taken in the past 7 years. The issue this time is whether a foreign government official is entitled to immunity under the FSIA for official acts. I haven’t paid as much attention to this as I should have, but I plan to blog about it more later this week (here is Michael Granne’s original analysis from October). In the meantime, it is worth looking at the transcript of oral argument, SCOTUSBlog’s report on oral argument today as well as dueling podcasts from the counsel in the case.
There seem to be at least three possible results here. Foreign government officials get immunity for official acts because they are “the state” or an “agency or instrumentality” of a state under the FSIA. The Court seemed skeptical of this (in that no justice seemed happy with it) Or such officials don’t, and the FSIA only protects government entities. No justice seemed to embrace this theory either, and Justice Breyer seemed skeptical. Or they don’t, but they might be entitled to some common law immunity (this appears to be the U.S. Government’s view). I don’t know how the Court would react to this approach, although it is always safe to bet against the Court deferring to the Executive, even this executive and even on matters related to foreign affairs. The upshot: The Court seems unconvinced by all sides and may come up with its own result, thus confusing matters more.
I am delighted to announce that Luis Moreno-Ocampo has appointed my friend and colleague Tim McCormack to be the Office of the Prosecutor’s Special Adviser on International Humanitarian Law. From the announcement:
Professor McCormack, from the Melbourne Law School at the University of Melbourne will help the Office of the Prosecutor to develop a solid understanding of complex legal issues such as indiscriminate attack, proportionality and command responsibility. He will also provide advice on the application and interpretation of international humanitarian law in relation to crimes within the jurisdiction of the Court, as well as on general principles of criminal law and legal issues related to military structures.
Tim is, to say the least, eminently qualified for the position. From his bio:
Tim has developed an international reputation for his scholarship in International Humanitarian Law and in International Criminal Law. From 2002–2006 he acted as amicus curiae on international law matters to the judges of Trial Chamber III of the International Criminal Tribunal for the Former Yugoslavia in The Hague for the trial of Slobodan Miloševic. From 2003–2007 he provided expert International Humanitarian Law advice to Major Mori for the defence of David Hicks. In that capacity Tim travelled to Guántanamo Bay to attend the US Military Commission proceedings against David Hicks in March 2007.
Tim has established one of the world’s strongest concentrations of research higher degree work in International Humanitarian Law, currently supervising 10 doctoral students. He is the general editor (with Christopher Greenwood of the London School of Economics) of the world’s first academic book series dedicated to International Humanitarian Law (with Martinus Nijhoff Publishers in Leiden) and has recently co-edited the twentieth volume of the series (his sixth book), The Legacy of Nuremberg: Civilising Influence or Institutionalised Vengeance? Tim is editor-in-chief of the prestigious Yearbook on International Humanitarian Law (published by the Asser Press in The Hague), and is also a member of the editorial board of several other leading international academic journals.
I know that Tim will prove to be a valuable resource for the OTP. My congratulations to him!
The issues Professor Waxman raises about the relationship between international humanitarian law (IHL) and international criminal law (ICL) are of the highest importance to anyone interested in the regulation of warfare, or, indeed, in international regulation more generally. Certainly, the division of labor between IHL and ICL is not an inevitable one. To some degree, it is the consequence of the historical evolution of international law. To some other degree, it reflects the necessary adaptations of state-based obligations turned into individual-oriented duties. Explanations of its origins notwithstanding, the existence of these two, semi-distinct regimes results in some unintended consequences which are often overlooked (and Professor Waxman rightly refers to Ken Anderson’s recent paper as an important exception to this omission).
[Matthew Waxman is an Associate Professor of Law at Columbia University Law School.] I am delighted to comment on Professor Blum’s provocative and thoughtful Article. The Article highlights in new ways a fundamental tension within international humanitarian law (IHL): that this body of law that disallows “lesser-evil” analysis in many contexts is itself a giant exercise of lesser-evil judgment, that the risks of prolonging and legitimizing warfare are worth the cost of protecting some humanitarian interests during it. Professor Blum injects new thinking to some long-running dilemmas at a time when much IHL discussion is overly politicized or stagnant.
One of the most remarkable aspects of Blum’s Article is its entire form, with her argument cast in terms of international criminal law: that international criminal law has exacerbated old IHL dilemmas, that international criminal prosecutions may in some cases be counter-protective of humanitarian interests, and that a solution lies in crafting a criminal defense that could be asserted by a war crimes defendant.
[We are pleased to introduce the second part of the YJIL Online Symposium discussion articles from Vol. 35-1. Today, we are delighted to host a discussion of Gabriella Blum's recent article with a comment by Professor Matthew Waxman later today] Why is it that international humanitarian law (IHL) allows no justification for its breach even when such conduct would actually produce less humanitarian harm than if following the law? Why would a defendant who violated IHL in order to save lives be convicted of war crimes? These are the questions I seek to address in my recent Article, “The Laws of War and the ‘Lesser Evil’.”
My interest in this puzzle was sparked by the Israeli Supreme Court’s decision to strike down the “Early Warning Procedure” employed by the Israel Defense Forces (IDF) in the West Bank. Under the Procedure, the IDF would approach a neighbor of a suspected Palestinian militant and request the neighbor to urge the suspect to surrender quietly to the security forces. If the suspect refused, the neighbor would then attempt to clear the residence from its other inhabitants. The stated goal of the Procedure was to reduce potential casualties, both among IDF and local civilians, in case the arrest turned violent. Despite some evidence that the Procedure was effective in reducing civilian casualties, the Court ruled that it violated strict prohibitions on the reliance on local civilians by an Occupying Power for security operations, and was therefore unlawful.
It’s an honor to have two so distinguished scholars comment on my article. As always, I learn from reading their commentary and I thank each for his insights.
Two quick reactions. First, Professor Johnson raises an interesting semantic question (which I do not address in the article): If a state “unsigns” a treaty, is it still a signatory? Professor Johnson is surely correct that a state cannot re-write history by purporting to expunge its signature as a matter of official record. Further, liability that a state incurs as a signatory to a treaty during a given period is not extinguished by a later decision to terminate signatory obligations; the state remains responsible for any action on its part that defeated the object and purpose of the treaty while it was subject to those obligations. On the other hand, a state that is a party to a treaty can under certain circumstances terminate that status and become a non-party. If a state terminates a treaty, it is no longer a party. One may well ask, therefore, why signatory status should be any different. Arguably, analytic clarity is advanced by thinking that signatory obligations and signatory status go together just as obligations under the norm of pacta sunt servanda and status as a party go together. When signatory obligations cease, signatory status might similarly end without altering the historical fact that the state was at one time a signatory. In any event, all this is a matter of terminology, not substance. No serious commentator, so far as I am aware, contends that by “unsigning” the Rome Statute the United States failed to make clear its intention not to become a party to the treaty. It did make that intention clear. The United States therefore terminated all signatory obligations under the treaty. (How a potential U.S. decision to unsign its unsigning might be described is beyond the scope of this post.)
Second, Professor Johnson’s unanswered questions concerning the relationship between the crime of aggression and the articles on state responsibility underscore my central conclusion ― which is the same as his and Professor Arend’s: the definition fails to provide ascertainable standards of guilt. For as Professor Johnson hypothesizes, a defendant charged with the crime of aggression might rely upon the “circumstances precluding wrongfulness” laid out in the articles, and neither the Rome Statute nor the articles provide any useful guidance as to what weight such a defense must be accorded. Moreover, as Professor Arend suggests, what constitutes a manifest violation of the Charter, and who is in a position to control or direct the action of the state, are both questions ― under the existing state of international law ― on which reasonable persons can differ. In this regard I recommend an incisive article by Professor Sean Murphy, “Aggression, Legitimacy and the International Criminal Court,” [http://www.ejil.org/article.php?article=1938&issue=93] in the current issue of the European Journal of International Law. Professor Murphy points out that the new definition would not be regarded as legitimate under the criteria identified by the late Professor Thomas M. Franck. He suggests that the definition’s indeterminacy ― the lack of clarity that leaves those to whom it might apply unable to understand it ― undermines the proposed crime’s pedigree and, ultimately, its probable compliance pull. The burden, I suggest, is now on the new definition’s proponents to show that persons of common intelligence would give the same answers to the many reasonable questions that have now been raised. If the proponents cannot tell us what those answers would be, it is fair to conclude that the definition does not pass muster under the principle of legality.
Cross-posted at Balkinization
Earlier this term, the Supreme Court granted certiorari to decide the latest issue in the sad case of the Uighurs still held at Guantanamo Bay after having been cleared of “enemy combatant” status by both Bush and Obama Administrations. U.S. treaty obligations restricting the ‘refoulement’ of individuals to countries where they’re likely to face torture have effectively prevented the United States from sending the Uighurs , a persecuted Muslim minority in China, back to China. And while the Washington, D.C. federal district court ruled months ago that the Uighurs continued detention at Guantanamo was without legal authorization, the D.C. Circuit court rejected the notion that the remedy for unlawful detention at Guantanamo Bay was release into the United States. Under U.S. immigration law, the D.C. Circuit held, no court can compel the Executive to allow aliens entry into the United States. The Uighurs, languishing at the U.S. naval base in Guantanamo, Cuba, were thus without effective remedy under law. The Supreme Court granted cert to decide the question whether the federal courts were in fact without effective remedial power. With the case set for oral arguments later this month, the Court today ordered the D.C. Circuit decision vacated, and it remanded the case to the appeals court to determine whether additional proceedings were now “necessary and appropriate” in light of the Obama Administration’s recent success in finding foreign nations (Switzerland and Palau) to offer the Uighurs a place to live.
Under the circumstances, I tend to think the Court did the right thing. Despite the pending offers of resettlement, the Uighurs’ attorneys had pressed the Supreme Court to decide the case now. Among other things, the Uighurs offered resettlement in Palau – a country lacking a Muslim population to speak of – evidently view the island nation an unacceptable alternative to continued detention at Guantanamo Bay. And given a choice between Palau and, say, Florida, I might well favor Florida too. The problem is that the Uighurs had only a modest chance, at best, of securing resettlement in the United States even if the Court had kept the case. Indeed, given the uncertainty of the outcome before the Supreme Court, the possibility that the Court would keep the case – and decide it against the Uighurs who, after all, now have at least Palau – might have cemented a permanently bad outcome for the remaining Guantanamo detainees who have also been cleared for release but have yet to find a country offering resettlement. For now – particularly thanks to the Court’s decision to vacate the D.C. Circuit opinion below – the possibility remains even in the D.C. Circuit that the courts may not be without all effective remedial power in resolving (before a potentially different panel) the next case of a stateless Guantanamo detainee (which case is surely coming).
Finally, while the Uighurs’ case is perhaps the saddest of the many sad cases resulting from mistakes made at Guantanamo beginning in 2002, the Obama Administration deserves some credit for, so far, threading the needle to find the marginally more favorable of the few options remaining for resolving these cases. It is true that the options would not have been quite so narrow – now that Congress has prohibited the transfer of almost all Gitmo detainees to the United States – had the Administration been more politically astute at the outset in actively managing the closure of Guantanamo together with the members of Congress whose obstruction it needed to avoid. Nonetheless, recent diplomatic resettlement efforts have been markedly more successful than those pursued by the Bush Administration. And this Administration has managed, so far, to avoid both the conclusive cementing of rights-hostile judgments (like that of the D.C. Circuit in the Uighurs’ case), and the repeated rebukes the previous executive faced at the hands of the highly active Supreme Court.
[Larry Johnson is an adjunct professor at Columbia Law School. From 2006-2008, he served at the United Nations Headquarters as the Assistant-Secretary-General for Legal Affairs.] Professor Michael J. Glennon in his post warned American policy-makers to be wary of a “time bomb” that could explode in May – the adoption of a vague, new crime of aggression that could have broad application to U.S. leaders. His remarks are an important contribution to the policy discussions no doubt going on as we speak on what the U.S. position should be at the up-coming Review Conference of States Parties to the Rome Statute of the International Criminal Court (ICC). While not a party to the Rome Statute, the United States will participate in the Conference as an “observer”, having signed – but not ratified – the Statute.
[Anthony Clark Arend is a Professor of Government and Foreign Service at Georgetown University]. When the Obama Administration came into office over a year ago, it was faced with a daunting task. The previous Administration had run rough-shot over international law dealing with the use of military force. A man that would be Attorney General would call the Geneva Conventions “quaint,” torture would be defined away by the Vice President and others, the United States would launch an invasion of Iraq in a move that many believed to be a clear violation of the United Nations Charter, and we could go on. With this record of disrespect for international law, it is not surprising that the Obama Administration would seek to take a more conciliatory move with respect to the ICC.
Unfortunately, one of the key lacunae left in the Roman Statute related to “the crime of aggression.” As Professor Glennon notes, the drafters of the Rome Statute left that crime undefined with the expectation that the ten-year review conference would be able to come up with a workable definition. In preparation for that conference, a working group has developed a draft. But, as Glennon masterfully demonstrates in his post, the working group has produced absurd definitions for both an “act of aggression” and the “crime of aggression” that defy logic and risk even further marginalizing the United Nations Charter framework.
First, as Glennon notes, the working group seeks to define “an act of aggression” as:
[T]he use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations.
It then goes on to list seven specific acts mentioned in the 1974 Definition of Aggression Resolution as qualifying as acts of aggression. Note the problem: This definition assumes that all uses of armed force “against the sovereignty, territorial integrity or political independence of another State” are a violation of the Charter, but ignores that such uses of force might be taking in self-defense, done for the purpose of rescuing nationals, or undertaken for other benign purposes that would not rise to the level of a violation of Article 2(4) of the Charter. Hence, Glennon provides us a long list of historical uses of force that would be “acts of aggression” under this definition.
Second, having sought to define an “act of aggression,” the working group proposed a similarly troubling definition for a “crime of aggression.” The working group submits that a “crime of aggression” means:
[T]he planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.
Where does one begin to deconstruct this definition? And is anyone troubled by the fact that while historically, aggression– whatever it meant– was thought to be a crime under international law, now only certain acts of aggression would rise to the level of “crimes of aggression”– those that constitute “a manifest violation of the Charter”? But what is a “manifest violation of the Charter”? And who is “a person in a position effectively to exercise control over or to direct the political or military action of a State”? As Glennon observers, these terms are far too vague to serve as a standard for defining a crime. He notes that ,
[T]he working group’s definition of the crime of aggression is irretrievably vague. To use the apt phrase of the United States Supreme Court, it fails to provide “ascertainable standards of guilt.”
So where does this leave us as we approach the review conference? Glennon rightly points out the problems of trying to either include or exclude the Security Council in the process:
The Charter thus presents the states parties to the Rome Statute with an impossible choice: include the Security Council in the decision to prosecute and create inexorable retroactivity problems, or exclude the Council from that decision and create a structure incompatible with the Charter.
There simply does not seem to be an easy (or even hard) fix.
What then is to be done? Glennon concludes his post with this sober note:
[I]t makes sense for the United States to participate as an observer in next May’s proceedings to try to steer the Court’s members away from the proposed definition. The 1998 Rome Statute itself requires that it be applied “consistent with internationally recognized human rights.” No right is more fundamental than that of a criminal defendant to know what conduct is illegal at the time the conduct occurs. No one will gain if the Court is permitted to undermine that right.
I agree. If the review conference seeks to define aggression along the lines proposed by the working group, it will only serve to undercut the legitimacy of international law. Indeed, given the current nature of state practice with respect to the use of force and the lack of compliance with the UN Charter framework, I am led to the conclusion that aggression cannot be defined as a crime under international law at this time. But this should not be too troubling. The Security Council continues to have the authority under Article 39 to find that a state has committed an act of aggression. And the Council continues to have the authority to impose sanctions on the offending state. And it should not be forgotten that individuals can be held personally accountable for war crimes, crimes against humanity, and genocide.
[Michael J. Glennon is Professor of Law at The Fletcher School at Tufts University].The article addresses a question that is particularly important for the United States. The Obama Administration has begun to express a renewed interest in the International Criminal Court (ICC), after almost a decade of distance between the Court and the United States. But American policy-makers should be wary of a time bomb that could explode in May – the adoption of a vague, new crime of aggression that could have broad application to U.S. leaders…
The wide-ranging book, which is edited by Carsten Stahn and Larissa van den Herik and published by Cambridge/TMC Asser, is well worth checking out. Here is the table of contents:
Part I. The Influence of Scholars and Practitioners on the Development and Conceptualization of International Criminal Law: 1. ‘Satires of circumstance’: some notes on war crimes trials and irony Gerry Simpson; 2. The banality of evil on trial Alette Smeulers and Wouter Werner; 3. Why international criminal lawyers should read Mirjan Damaška Harmen van der Wilt; 4. The gentle humanizer of humanitarian law – Antonio Cassese and the creation of the customary law of non-international armed conflict Tamás Hoffmann; 5. The international criminal legal process: towards a realistic model of international criminal law in action Christoph Burchard.
Part II. Theorizing International Criminal Justice: 6. The two liberalisms of international criminal law Darryl Robinson; 7. International criminal law at the crossroads: from ad hoc imposition to a treaty-based universal system Kai Ambos; 8. In search of the ‘vertical’: towards an institutional theory of international criminal justice’s core Frédéric Mégret.
Part III. Re-Assessing the Balance Between International and Domestic Jurisdiction: 9. Situational gravity under the Rome Statute Kevin Jon Heller; 10. When law ‘expresses’ more than it cares to admit: comments on Heller Mark Osiel; 11. Should the prosecution of ordinary crimes in domestic jurisdictions satisfy the complementarity principle? Dawn Sedman; 12. Interpreting complementarity and interests of justice in the presence of restorative-based alternative forms of justice Marta Valiñas; 13. Universal jurisdiction and the prosecution of excluded asylum seekers Elizabeth Santalla.
Part IV. De-Individualizing International Criminal Law: Can Abstract Entities Commit International Crimes After All?: 14. The Inter-American Court of Human Rights and the aggravated state responsibility operationalizing the concept of state crime Scott Doucet; 15. Corporations as future subjects of the International Criminal Court: an exploration of the counterarguments and consequences Larissa van den Herik; 16. Gray war zone? The question of contractual control of the privatization of warfare and the civilianization of the military Dan Kuwali; 17. Holding private military companies accountable for their crimes: the applicability of the commander/superior responsibility doctrine Materneau Crispin.
Part V. Crime Definitions Revisited: 17. Defining the crime of aggression Astrid Reisinger; 18. Complementarity and aggression: a ticking time bomb? Nicolaos Strapatsas; 19. The recruitment and use of child soldiers: some reflections on the prosecution of a new war crime Michael E. Kurth.
Part VI. System Criminality and the Principle of Personal Fault: A Balancing Test in Setting the Appropriate Standards for Modes of Liability: 21. The difficulty with individual criminal responsibility in international criminal law Gideon Boas; 22. Current trends on modes of liability for genocide, crimes against humanity and war crimes Héctor Olásolo; 23. From ‘conspiracy’ to ‘joint criminal enterprise’: in search of the organizational parameter Athanasios Chouliaras.
Part VII. Towards One International Criminal Procedure?: 24. Trends in the development of a unified law of international criminal procedure Göran Sluiter; 25. Witness memory and the manufacture of evidence at the international criminal tribunals Alexander Zahar; 26. Remedies for war victims Liesbeth Zegveld; 27. Victim participation in ICC proceedings Nino Tsereteli; 28. Arrest and surrender under the ICC Statute: a contextual reading Carsten Stahn.
As you will see, the book includes my essay on situational gravity and a response by Mark Osiel. I was honored to find out that Mark wanted to respond to my essay, and I recommend his contribution highly.
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