Archive for
May, 2010

An Open Letter Regarding Judge Garzon and “Continuing Crimes”

by Kevin Jon Heller

My friend and colleague Gerry Simpson has, along with other international-law luminaries, just published an open letter in The Guardian defending Judge Garzon’s actions.  Here it is (emphasis mine):

As teachers and practitioners of international law we note that the validity and effect of an amnesty granted by national law in respect of international crimes has been addressed by regional human rights and international criminal courts (Spanish judge suspended, 15 May). The subject is complex. But there is ample authority under international law for the conclusion that such amnesties can have no effect in the courts of a third state. There is also international support for the view that a national prosecutor or investigating judge is entitled to seek to go behind a national amnesty in respect of international crimes in his or her own country, even where the crimes were committed long ago (as is the case in relation to Spain‘s 1977 amnesty law). To assert that it is a crime for a national prosecutor or investigating judge to act in this way, particularly where the allegation being investigated concerns the disappearance of persons and has continuing effects, is obviously wrong and is detrimental to the rule of law. It undermines the independence of the prosecutor or investigating judge. It is inconsistent with one of the central tenets of modern international law, namely that there can be no impunity for grave international crimes.

Prof Laurence Boisson de Chazournes University of Geneva, Prof James Crawford University of Cambridge, Prof Pierre-Marie Dupuy and Prof Marcelo Kohen Graduate Institute of International and Development Studies, Geneva, Ken Macdonald QC Former DPP, Paul Reichler Foley, Hoag & Eliot, Washington DC, Prof Philippe Sands QC University College London, Prof Gerry Simpson University of Melbourne, Ambassador Alberto Szekely Mexican member, Permanent Court of Arbitration

I think the letter’s emphasis on the “continuing effects” of the Franco-era disappearances is particularly important.  The Spanish government has never identified (whether because it can’t or won’t) the fate of all of the people disappeared by the Franco regime, which means that the unresolved disappearances are “continuing crimes” — crimes that are still being committed today.  Courts in Latin America and the Inter-American Court of Human Rights have specifically held that enforced disappearance is a continuing crime, and that position has been endorsed by the OHCHR Working Group on Involuntary or Enforced Disappearance.  Here are some excerpts from the Working Group’s General Comment on the Declaration on the Protection of All Persons from Enforced Disappearance

Negligent Attack in Afghanistan Kills 20+

by Kevin Jon Heller

Winning Afghani hearts and minds, one dead civilian at a time:

In the civilian deaths case, attack helicopters fired missiles and rockets into the convoy on a main road near Khod village, where U.S. Special Forces and Afghan troops were battling militants at the time, a summary of the investigation said. Commanders judged that the convoy contained fighters heading toward the village to reinforce the militants.

But the order to attack was based on inaccurate information from the crew at an Air Force base in Nevada that was remotely controlling a Predator drone monitoring the convoy and on flawed analysis of the situation by NATO commanders, Army Maj. Gen. Timothy McHale, who led the investigation, wrote in the report.

Poorly functioning command posts “failed to provide the ground force commander with the evidence and analysis that the vehicles were not a hostile threat and the inaccurate and unprofessional reporting of the Predator crew … deprived the ground force commander of vital information,” McHale wrote.

“Information that the convoy was anything other than an attacking force was ignored or downplayed by the Predator crew,” it said.

In a memo released Saturday accompanying the report, McChrystal said he had issued letters reprimanding four senior and two junior officers in Afghanistan over the attack. He also called on the Air Force to investigate the actions of the Predator crew.

The report said the convoy drew early suspicion because men in it appeared to be providing security as it was tracked for more than three hours. Its movements matched radio intercepts of militants calling on others to join the battle near Khod, about seven miles (12 kilometers) from the site of the attack.

No women were seen in the vehicles, but two children were spotted near them at one point. This was inaccurately reported by the drone crew, the report said.

We usually think about drones killing innocent civilians directly.  But let’s give them their due — they can kill innocent civilians in recon mode, as well.

U.S. Law Professor Arrested by Rwandan Government

by Julian Ku

The Rwandan government has arrested a U.S. law professor, Peter Erlinder, who represented key opposition figures. The NYT reports:

Rwandan authorities on Friday arrested an American lawyer who is representing a leading Rwandan opposition figure, the latest sign of an increasingly repressive atmosphere there.

Peter Erlinder, a law professor at William Mitchell College of Law in Minnesota, is being charged with denying the Rwandan genocide and was being interrogated Friday night at police headquarters in the capital, Kigali, Rwandan officials said.

I don’t know anything about this case, although the current Rwandan government has proven hypersensitive about allegations of their involvement in genocide, war crimes, or crimes against humanity.  Erlinder, through his defense of clients in Rwanda and in lawsuits in the U.S., seems to have made such allegations.  I would imagine he will be released very soon, but if he isn’t, this could further tarnish the Rwandan government. (Here is the statement from William Mitchell) (thanks to my colleague Eric Freedman for the heads up).

Whale Wars Are Now “The Whale Cases”: Australia Announces ICJ action Against Japan (Corrected)

by Julian Ku

This is a bit of a surprise, at least its timing.  Stories I had read suggested any action would be delayed until after upcoming International Whaling Commission meetings, or even later. But here goes:

Australia says it will take Japan to the International Court of Justice because of Japan’s whaling activities, which Tokyo says are for scientific purposes.

Australia’s foreign minister, environment minister, and attorney-general announced Friday they will file papers with the ICJ next week.  Australian Prime Minister Kevin Rudd warned earlier this year that he was considering the move if diplomatic means failed to stop Japan’s hunt.

It is likely that Australia’s arguments will track the Sydney Report of Independent International Experts, or at least the part which recommends a challenge to Japan’s interpretation of the International Convention on Whaling.  The ICJ’s jurisdiction will be based on compulsory jurisdiction and not by special agreement, I believe, since both Australia and Japan have (more or less) accepted the ICJ’s compulsory jurisdiction.

Japan might be in a bad mood these days, having recently been browbeaten by the U.S. into accepting the continued presence of a U.S. military base on Okinawa.  I’m sure their government is not excited to face another Western power harassing them.  Japan has never, as far as I know, been involved directly in any ICJ proceeding, certainly not as a respondent.  So I don’t expect the Japanese to fold easily here.  Indeed, I expect Tokyo is currently amassing their considerable legal talent to prepare for Japan’s first ICJ case.  There won’t be any advantage in legal advocacy here for Australia, although it is worth pointing out that there are no Japanese judges on the ICJ right now. [Due to the hazards of late-night blogging, I somehow forgot that Judge Hishashi Owada, a Japanese national,  is the current president of the ICJ! Whoops! Luckily, Bruno Simma, also a judge on the Court, corrects my brain cramp in the comments below. Thanks Judge Simma! I take my well-deserved lumps on this error from readers below as well. Must get more sleep before blogging on this case in the future.] There are no Australian judges either, but there is a New Zealander (Kenneth Keith).

As this editorial points out, though, the real risk seems to lie with the Australians.  After all, they could very well lose this case, and Japan’s vindication would lead to more whaling, not less.  That would be a much worse result than the status quo (from the Australian perspective). So I guess they must be pretty confident they will prevail.  Hopefully, we’ll get to see how this all pans out.

A Question for Ken

by Kevin Jon Heller

I do have a question for Ken.  As his post indicates, he believes that the US’s right to “self-defense” justifies drone strikes against designated terrorists outside of armed conflict — strikes that are governed by human-rights law, not international humanitarian law. Indeed, he writes that “if one takes the US’s independent self-defense view, then curiously, the CIA is on firmest legal ground in precisely the situation in which the special rapporteur would say that its legal ground is the shakiest.”  As I have pointed out before, Marko Milanovic has challenged — in my view, persuasively — the idea that the “self-defense” rationale justifies the killing, as opposed to the US’s violation of another state’s sovereignty.  Here is Marko’s argument:

But then there is more fundamental problem: what is the actual wrongfulness that is being precluded with self-defense, and can self-defense even conceivably do it?

As I see it, when the US uses a predator drone in Pakistan to kill a terrorist, it thereby commits two distinct acts which can in principle be characterized as wrongful: it violates the sovereignty of Pakistan, and it violates the right to life of the person killed. It is the wrongfulness of the former only that can be precluded by an invocation of self-defense, just like Pakistan’s (or Yemen’s, or whoever’s) consent would preclude it. But, assuming the (extraterritorial) application of human rights treaties to a given situation, I don’t see how self-defense could be used to preclude the wrongfulness of an act contrary to the individual rights enshrined in such treaties. It is indisputable, for example, that self-defense as a matter of the jus ad bellum cannot preclude the wrongfulness of the violations of the jus in bello, i.e. IHL. How could it be any different when it comes to human rights? Indeed, the ILC explicitly says so in its commentaries on the articles on state responsibility, at 74.

Thus, I don’t see how Ken’s proposed solution can actually do all the work that it needs to do. It’s one thing to say that a state can’t complain about another state violating its sovereignty when it responds to an armed attack by a non-state actor which the former state did not prevent. It’s quite another to say that individuals somehow lose their equally inherent rights just because a state exercises its inherent right to self-defense.

What states wishing to use targeted killings can argue – and have argued – to avoid this problem is that human rights treaties don’t apply at all, for example because of extraterritoriality. These arguments are, in my view, entirely unprincipled and unpersuasive, but I won’t develop that here. Assuming that a human rights treaty does apply, self-defense just doesn’t cut it. On the other hand, if the human rights treaty doesn’t apply, then the invocation of self-defense becomes redundant.

I have never seen Ken respond to this argument.  He is, I think, by far the most persuasive and fair conservative who write about these issues, so I am very curious to hear his response.

One Consequence of CIA Drone Strikes

by Kevin Jon Heller

Like Ken, I plan on discussing Phillip Alston’s report on drone strikes when it’s released.  Alston was just at Melbourne Law School last week, talking about his role as rapporteur.  He’s a remarkable person.

With regard to drone strikes in armed conflict, Ken quite rightly points out that CIA operators cannot lawfully be attacked by a terrorist group even if they themselves do not qualify as privileged belligerent — an unprivileged belligerent such as a terrorist has no privilege to attack anyone.  But he overlooks one important point: because a privileged belligerent could lawfully attack a CIA operator, a terrorist who attacked and killed a CIA operator would not be committing a war crime.  His crime would be murder.

That’s important, of course, because of what I noted yesterday: if our hypothetical terrorist is guilty of murder but not of a war crime, he could not lawfully be prosecuted in a military commission, regardless of what the Department of Defense says.  He would have to be prosecuted in a domestic court.

And that, of course, would be the end of Western Civilization itself.

Drones and the CIA and Charlie Savage’s NYT Article

by Kenneth Anderson

Although I was up at six, I think Julian must get up a lot earlier than I do, as he is regularly beats me to the punch on what’s in the newspapers on drones.  I will post something more once Philip Alston’s report is out next Tuesday and I have had a chance to read the text.  But here are a couple of comments per Charlie Savage’s exceedingly interesting NYT piece.

There are two ways of seeing a call for drone strikes to be turned over to the US military, rather than the CIA.  One is fundamentally grounded in the binary that all uses of force must be either law enforcement or else armed conflict – and if so, there is no room for the CIA to be conducting these strikes.  In that case case, the call to take the CIA out of it is a way of reasserting the basic binary.  This is problematic from the US standpoint, if it is a way of reasserting this fundamental binary, since the Legal Adviser’s ASIL speech specifically preserves an independent ground of self-defense that is not a matter of armed conflict.  If CIA participation is unlawful because the binary holds, then the US has simply rejected the underlying premise – indeed, said that it has never accepted it, going back clear to the 1980s and beyond.

The other way to see a call to take the CIA out of the activity is on the ground that because this is an armed conflict, uses of force must be undertaken by lawful participants, and the CIA, as a civilian agency, is not a lawful participant.  Insofar as this is offered as something that is not driven by the fundamental binary above, then it is essentially a claim about the CIA not meeting the requirements lawfully to engage in hostilities – some version of the claim that the war with Al Qaeda is an armed conflict, and the CIA are not privileged combatants.  This is a technically more complicated claim in the rules of war than much of the public discussion has treated it.  Much of the public discussion seems to revolve around the idea that if you are a civilian, you are not allowed to take part in hostilities; the legal point, rather, is that there are numerous categories of civilians that have varying roles in direct participation in hostilities and the point is not to say that their participation is unlawful, it is that – if they were facing a lawful foe – they are themselves lawful targets.  Whether they wear uniforms or not is a question of whether the circumstances in which they wear uniforms, or non-standard uniforms (e.g., special forces in Afghanistan), etc., is a question of whether they fail to distinguish themselves from the non-combatants.  Insofar as they do this from Langely in some cubicle, that does not really present a problem.

As to the assertion that they have made themselves lawful targets – that would be true if engaged with a foe that could lawfully target anything.  In the case of a terrorist group – Al Qaeda, the IRA, ETA, etc., the automatic assumption that military lawyers sometimes make, that jus ad bellum and jus in bello are independent, is beside the point; these groups have no reciprocal right to target anything, irrespective of whether, in a lawful conflict, something or someone would be a target.  It is not the case that by flying a drone from Langley, the CIA operator is now a lawful target – he or she would be if flying it in a conflict with, oh, North Korea, but not Al Qaeda.  Al Qaeda has no belligerency rights jus ad bellum, just as it has no combatant privilege jus in bello.  To suggest that the CIA at Langley has put itself into an “equivalent” position is not correct.  If the CIA at Langley were fighting a lawful actor, its participants would be lawful targets – although not, merely in virtue of not wearing uniforms inside Langley, “unlawful combatants.” But not as regards Al Qaeda. Continue Reading…

The World’s Best Airlines. (And No, None Are American.)

by Kevin Jon Heller

Skytrax has released its annual list of the world’s 10 best airlines.  Here they are, from #1 down:

  • Asiana Airlines
  • Singapore Airlines
  • Qatar Airways
  • Cathay Pacific
  • Air New Zealand
  • Etihad Airways
  • Qantas
  • Emirates
  • Thai Airways
  • Malaysia Airlines

Two things stand out.  First, Asian and Australia/New Zealand dominate. I fly Air New Zealand and Qantas regularly, and think both are excellent.  (Air New Zealand is better, as the ratings indicate.)  I also like Virgin Australia, which isn’t on the list but has a great non-stop from Melbourne to Los Angeles for between $800-1000 (US).  My friends fly Singapore, Etihad, and Emirates regularly and rave about all three, especially Singapore.

Second, there are no US airlines on the list.  In fact, no US airline wins any of Skytrax’s 50-odd individual awards, either.  That, of course, should come as no surprise to anyone who lives in the US.  Our airlines are absolutely atrocious — dirty, cramped, lousy food, unpleasant service, pathetic entertainment.  (The only airlines that are anywhere near as bad are British Midlands and British Airways.)  A friend recently flew to Melbourne on United.  It was a 14-hour flight and the only entertainment was the airline-selected movie shown on little televisions attached to the ceiling.  Air New Zealand, Qantas, and Virgin, by contrast, have in-seat TV screens with your choice of more than 120 movies.  And the food is good.

Skytrax’s rankings don’t take them into account, but the difference between Asian and American airports is also stark.  Denver and Indianapolis have nice airports, but most are just as dirty, cramped, and unpleasant as the airlines themselves.  (And don’t get me started on US customs…)  The Asian airports, by contrast, are fantastic.  They’re spacious, clean, with great food choices and — invariably — free internet everywhere.  And getting though customs is a breeze.

I really don’t miss living in the US.

The STL, In Absentia Trials & Notice “Otherwise Given”

by Chris Jenks

[The following is a guest-post by Lt. Col. Jenks, the Chief of the International Law Branch in the Army’s Office of the Judge Advocate General — KJH]

At a workshop held in Beirut earlier this month, officials from the Special Tribunal for Lebanon (STL) attempted to explain the basis for the tribunal’s in absentia provisions.  At the same time, Judge Cassese, President of the STL, claimed that “[h]uman rights are the raison d’être of the tribunal,” and that “[w]e must ensure that the rights of all – the defendants, the witnesses and the victims – are respected, and are respected equally. We must find a way of punishing the guilty but respect their rights to a fair trial.”

Well intentioned though the workshop may have been, what has yet to be acknowledged and thus not addressed is that the STL’s in absentia provisions are unprecedented and some aspects likely violate human rights norms.

The STL is the first tribunal since the IMT at Nuremburg to allow “total” in absentia proceedings, meaning that the accused may never make an appearance. Other U.N. tribunals have allowed “partial” in absentia, meaning that the accused initially appeared but was unwilling or unable to attend subsequent proceedings.

As if the first point was not enough, the STL allows for total in absentia proceedings based on notifying the accused of the indictment through “publication in the media or communication to the State of residence or nationality.” Such a trial would almost certainly violate the fair trial rights of the ICCPR (see Maleki v. Italy, U.N. Human Rights Commission Communication No. 699/1996) and the European Convention (see Sejdovic v. Italy, 42 Eur. H.R. Rep 17). While the STL affords someone convicted in absentia the possibility of a retrial, the STL is of finite duration and those tried in absentia may not surface for years. Regardless, curing a violation does not alter its creation, and through no less than a U.N. sponsored tribunal.

Even if the STL doesn’t hold a single in absentia proceeding (although conducting the workshop suggests otherwise), in a way the damage is already done – there is now precedent, through the STL statute, for a UN tribunal that conducts total in absentia proceedings and based on notice “otherwise given.” Moreover, if the right of the accused to be present at trial is now negotiable what other, previously sacrosanct, rights, are eligible for bartering?

The U.N. considered and rejected the ICTY holding total in absentia trials. At the time, the U.N. Secretary General said that “[a] trial should not commence until the accused is physically present before the International Tribunal.” The SG went on to discuss the “widespread perception” that total in absentia trials would not be consistent with the ICCPR. Indeed. Now, according to the United Nations Security Council, the STL is to be a tribunal “of an international character based on the highest standards of criminal justice.”  Unfortunately, and in more than one sense, that remains to be seen.

For a more academic discussion of these issues, see my essay “Notice Otherwise Given: Will in Absentia Trials at the Special Tribunal for Lebanon Violate Human Rights?”  It’s available here.

U.N. Special Rapporteur Offers Limited Pushback Against CIA Drone Strikes

by Julian Ku

From this NYT story, the upcoming report to the U.N. Human Rights Council on U.S. drone strikes seems fairly restrained.  The main pushback is to end CIA involvement in drone strikes, on the theory that CIA operatives are not privileged belligerents.  This is indeed, the strongest legal argument against drone strike, at least to me, but it seems also pretty easily fixable.  Still, I wonder what the rest of the report says? And whether the Obama Administration will heed the calls to change their policy (or indeed, whether this report makes it harder for the to do so).

A senior United Nations official is expected to call on the United States next week to stop Central Intelligence Agency drone strikes against people suspected of belonging to Al Qaeda, complicating the Obama administration’s growing reliance on that tactic in Pakistan.

Philip Alston, the United Nations special rapporteur on extrajudicial, summary or arbitrary executions, said Thursday that he would deliver a report on June 3 to the United Nations Human Rights Council in Geneva declaring that the “life and death power” of drones should be entrusted to regular armed forces, not intelligence agencies. He contrasted how the military and the C.I.A. responded to allegations that strikes had killed civilians by mistake.

Labor Standards: There’s an App For That

by Roger Alford

<br />The news coming out of China of ten suicide deaths at Foxconn industrial park is terribly distressing. All of the workers who committed suicide were recent high school or vocational training school graduates aged between 18 to 24. One of the fatalities, Sun Danyong, jumped to his death after being interrogated over a missing iPhone prototype. Foxconn, the makers of Apple iPhones and iPads, is now under international scrutiny for its working conditions and the news is not good. Not surprisingly, Apple (and other companies that purchase Foxconn products such as Dell and Hewlett-Packard) are also under intense scrutiny regarding their enforcement of supplier codes of conduct.

The New York Times reports that:

“Foxconn’s production line system is designed so well that no worker will rest even one second during work; they make sure you’re always busy for every second,” says Li Qiang, executive director of the China Labor Watch, a New York-based labor rights group. “Foxconn only values the enterprise benefits but totally ignores the social benefits. Those claims have been bolstered in recent weeks by some of China’s state-run newspapers, which have published a series of sensational reports about the suicides, alongside exposés detailing what they claim are the harsh conditions inside Foxconn factories. Some articles have described the company’s authoritarian management style, the heavy burdens workers face in trying to meet Foxconn production quotas. Others say the company has cramped dormitories that sometimes house 10 to a room.”

An Apple spokesman stated today that “a team from Apple is independently evaluating the steps they are taking to address these tragic events and we will continue our ongoing inspections of the facilities where our products are made.” Sounds good.

But it made me wonder what has Apple done prior to these tragedies to promote labor standards. The news isn’t pretty….

Richard Goldstone Comes Out Against an ICC “Crime of Aggression”

by Julian Ku

Do we have an emerging consensus that the ICC States-Parties should refrain from adding the crime of aggression to the ICC Statute at its upcoming conference in Kampala?  Michael Glennon, the CFR, Harold Koh, David Kaye, and now Richard Goldstone have all come out against adding the crime of aggression. Here is Goldstone:

Based on my experience as an international prosecutor, and speaking as a strong supporter of the International Criminal Court, I think it would be a mistake to add the crime of aggression to the Court’s docket now. The issue should be deferred again.

By any measure, the I.C.C. has gotten off to a strong start in generating international support and demonstrating its potential to address the problem of impunity for serious international crimes.

But it also has encountered charges of politicization and is still learning, as an institution, how to exercise effectively its jurisdiction over genocide, crimes against humanity and war crimes.

One of the greatest challenges I faced as prosecutor at the International Criminal Tribunal for the former Yugoslavia (I.C.T.Y.) was convincing the Serbian public that the court was not a politically motivated conspiracy against Serbia. This challenge would have been immensely greater — perhaps impossible — if the Tribunal’s jurisdiction had included the crime of aggression. That would have required me to investigate and potentially prosecute the decision to go to war — which is inherently a profoundly political decision.

Prosecuting that decision would have inflamed Serbian suspicions of a conspiracy; choosing not to prosecute would have incited countervailing charges that the Tribunal was not fulfilling its mandate. Such a debate would have diverted attention and energy from the imperative of fairly and effectively providing justice and accountability for the grave crimes then being committed against civilians in the former Yugoslavia.

Now is not the time for the I.C.C. to risk embroiling itself in similar controversy. The issues that would arise from dealing with allegations of aggression would give ammunition to critics who claim it is a politicized institution.

The Non-Existent “Murder in Violation of the Law of War” — Redux

by Kevin Jon Heller

A couple of years ago, I blogged about how Salim Hamdan was prosecuted in a military commission for conspiring to commit the non-existent war crime “murder in violation of the law of war.”  Hamdan was acquitted on that count, but the crime is starring again in the unconscionable prosecution of child-soldier Omar Khadr.  That’s unfortunate in itself — but what is particularly unfortunate is that, according to the Vancouver Sun, Harold Koh and the State Department tried to get the charges dismissed but were rebuffed by the Department of Defense:

Officials in the Obama administration demanded a game-changing rule change for the Guantanamo Bay military tribunal that would have likely scuttled the war crimes murder charge against Canadian-born terror suspect Omar Khadr, Canwest News Service has learned.

The officials sought to strip a new commissions manual of a law-of-war murder definition that is central to Khadr’s prosecution in the mortal wounding of Special Forces Sgt. First Class Chris Speer during a 2002 firefight in Afghanistan, insiders say.

Omission of the segment could have also obliged prosecutors to trim or abandon “up to one-third” of its cases, according to one inside estimate. Prosecutors said in the wake of the Bush administration they were prepared to take about 60 Guantanamo detainees to trial — among them the accused co-conspirators of the Sept. 11, 2001 attacks.

The Pentagon issued its 281-page Manual for Military Commissions on the eve of hearings April 28 to May 6 in the Khadr case after the U.S. Congress updated the Bush-era Military Commissions Act with legislation President Barack Obama said makes them fair. Prosecution and defence teams use the courtroom rules to present their cases, but a new manual was necessary to conform to the legislative changes in the 2009 act.

The failed bid to change part of law-of-war murder rule — as well as separate arguments insiders say took place over other rules — illustrates how the commissions remain a point of division in the Obama administration. Numerous appointees — and even Obama himself — were sharply critical of the tribunals after the Bush administration launched them as a key tool in its post-9/11 “war on terror.”


Among those leading the charge against the contested murder segment was Harold Koh, Obama-nominated legal adviser of the State Department, who once wrote that the U.S. was part of an “axis of disobedience” along with North Korea and Saddam Hussein’s Iraq.


U.S. Defence Secretary Robert Gates signed off on the manual with the contested “comment” intact after Jeh Johnson, his legal adviser, went head-to-head with Koh, one official recounted.

“Harold Koh doesn’t have any authority over the defence department,” said this official. “The general counsel of DOD was fighting Koh on it; he advises Secretary Gates . . . who is going to follow his own lawyer.”

As the article notes, and as Scott Horton discusses here, Koh and the State Department had an ulterior motive in opposing the crime — they are worried that it might come back to haunt the US’s drone program…

Is the Land Mine Treaty Just “International Political Correctness”?

by Julian Ku

I have always thought the Ottawa Convention banning landmines was a nice idea, but somewhat unrealistic. Case in point: the U.S. and South Korea rely on landmines to prevent a North Korean attack on South Korea. It is hard to imagine a cheaper more effective deterrent than landmines, as David Rivkin and Lee Casey argue in today’s WSJ.  As a policy matter, this claim is up for debate. Indeed, 68 U.S. senators have already indicated support for the treaty.

Perhaps more interestingly, Rivkin and Casey classify the Landmine Treaty as a new kind of “international political correctness” aimed at undermining the traditional laws of war.

Traditionally, the laws of war accommodated military imperatives, imposing only the most basic of restraints. This was in recognition that a more restrictive code would not likely check nations engaged in a life or death struggle. As the realities of war have receded for most developed countries, progressives have worked to transform the norms applicable to armed conflict into something akin to a code governing domestic police functions.

The Ottawa Convention is part and parcel of this process, and the only real justification for U.S. accession to this treaty is a bow to international political correctness. That is what the Senate letter meant by urging the president to reconsider the U.S. position as consistent with his “commitment to reaffirm U.S. leadership in solving global problems.”

That type of symbolism is just not a good enough reason to give up a weapon that can protect American forces and assist them in accomplishing their missions.

This is an important theme that scholars are just beginning to pick up on (with the exception of Alan Dershowitz, of course).  Are the laws of war being changed somehow into something really different (and in service of progressive goals)?  Is that a bad thing?

The Death of the Secondary Boycott Against Israel

by Roger Alford

At the recent Northwestern Law School conference on the Israeli-Arab Dispute and International Law I had the good fortune to address one of the few bright spots in current Arab-Israeli relations.

Most international law scholars of the Arab-Israeli conflict seem to know little about international trade, and focus almost exclusively on the laws of war in their discussion of Middle East relations. Therefore when I was choosing my topic for discussion, I decided to analyze the current status of the Arab League boycott against Israel. The secondary boycott, of course, involves the blacklisting of any corporation that does business in Israel.

As a result of the secondary boycott, Arab consumers suffered because they did not have access to the most efficient source of goods and services. Israeli investment also suffered because foreign corporations often chose to sell their products to dozens of countries with hundreds of millions of consumers rather invest in one small country with a few million consumers. Third-country corporations were caught in the middle and forced to make hard choices that they should never have been forced to make.

The good news is that in the past fifteen years the secondary boycott against Israel has died a quiet death. According to official reports from the United States, of the twenty-two members of the Arab League, only three countries–Iraq, Libya, and Syria–continue to enforce a secondary boycott. Even then, it appears that only Syria is serious about it. USTR has recently stated that the secondary boycott “has extremely limited practical effect overall on U.S. trade and investment ties with most Arab League countries.” As a practical matter, we are experiencing the death rattle of the secondary boycott against Israel….

R.I.P. Professor Gabriel Wilner

by Julian Ku

<br />

Professor Gabriel Wilner

Sad news from the University of Georgia:

Gabriel Michael Wilner, a University law professor and executive director of International, Comparative and Graduate Legal Studies, died unexpectedly at his home Friday.

A native of Beirut, Lebanon, Wilner has been with UGA since 1973 and has served in several capacities since coming to the University. He has taught private international, comparative and maritime law, served as director of the law school’s Master of Laws program, and directed the Brussels Seminar on the Law and Institutions of the European Union since its inception in 1973….

A memorial service for Wilner will be held at the Bernstein Funeral Home in Athens on Friday at 11 a.m. In lieu of flowers, his family suggests a donation to the National Kidney Foundation, 30 East 33rd St., New York, NY 10016.

Spanish Domestic Law of Universal Jurisdiction

by Kenneth Anderson

In the extensive and sometimes heated arguments over universal jurisdiction, Judge Baltasar Garzon, and national courts such as those of Spain, often missing is much scholarly information on the actual evolution and state of Spanish domestic law on universal jurisdiction, certainly in English and accessible to English language scholars.  Ignacio de la Rasilla del Moral, a Spanish academic (apparently currently in the US), has put up on SSRN a discussion of the evolution – rise and fall – of universal jurisdiction law in Spain, up to mid-2009 and proposed revisions to the Spanish law.  The Swan Song of Universal Jurisdiction in Spain, 9 International Criminal Law Review (2009) 777-808.  I have various disagreements with the way that the article treats international law aspects of crimes subject to universal jurisdiction, but overall it is a very helpful addition to the scholarship for English language scholars seeking to understand what it means inside domestic Spanish law.  The abstract is below the fold. Continue Reading…

A Deeply Unpersuasive Argument Against Elena Kagan

by Julian Ku

The Washington Times has an editorial that seems to argue that because Elena Kagan supports the teaching of international and comparative law, she actually believes that “foreign law trumps the Constitution.”

It was under Ms. Kagan’s leadership while dean of Harvard Law School, for instance, that Harvard dropped constitutional law as a required course for graduation, while adding a requirement for a course in “International/Comparative Law.” The de-emphasis on the Constitution itself is part of a horribly misguided trend in liberal academia. To replace con-law with international law is symbolic of a mindset that runs far afield from the basics of American legal tradition.

As someone who teaches both constitutional law and “international/comparative law,” I would say that both should be required for law school graduation. At the same time, given the politics of the constitutional law faculty at Harvard, I think the Washington Times would actually be happier that Laurence Tribe and Mark Tushnet have fewer students in their conlaw classes.  And given that there is pretty much nothing in Kagan’s written work that reflects the”transnationalist” perspective, this is pretty thin stuff that will make her critics look silly.

I Bravely Defend Obama’s Sudan Policy Against Mia Farrow

by Julian Ku

Actress Mia Farrow has a scathing op-ed in the WSJ today denouncing Obama’s Sudan policy. The crus of her critique is that Obama is not pushing hard to send Bashir to the ICC.

Last week U.S. Special Envoy to Sudan Scott Gration told the Senate Foreign Relations Committee that although he remains supportive of “international efforts” to bring Sudanese President Omar al-Bashir to justice, the Obama administration is also pursuing “locally owned accountability and reconciliation mechanisms in light of the recommendations made by the African Union’s high-level panel on Darfur.”

Mr. Bashir is indicted by the International Criminal Court (ICC) for war crimes and crimes against humanity, but the African Union Panel on Darfur has clearly aligned itself with Khartoum. One panel member, former Egyptian Foreign Minister Ahmed Al Sayed, said in an interview with an Egyptian newspaper, “The prosecution of an African head of state before an international tribunal is totally unacceptable. Our goal was to find a way out.”

The African Union panel is led by former South African President Thabo Mbeki, who in 2008 dismissed the ICC indictment, saying that it is “the responsibility of the Sudanese state to act on those matters.” Then, late last year his panel proposed a counter initiative to the ICC in the form of a hybrid, Sudan-based court with both Arab and African judges to be selected by the African Union.

But all this is moot since Mr. Bashir swiftly rejected Mr. Mbeki’s proposal. Perversely, Mr. Gration has now thrown U.S. government support to a tribunal that does not and probably will never exist. Even if it did, the “locally owned accountability” he refers to is not feasible under prevailing political conditions, as any Sudan-based court will be controlled by the perpetrators themselves.

Farrow has a point about the sketchy effectiveness of the AU’s mechanism. Moreover, it is hard to reconcile the Obama administration’s support for the AU panel in light of the ICC Statute, which doesn’t (I believe) permit substitutions like this.

On the other hand, I just don’t understand why Farrow and activists like her believe that the ICC trial of Bashir will end up somehow ending the suffering in Sudan.  Essentially, she is arguing that only regime change can solve the problems here.  But she is proposing the removal of Bashir without any political mechanism to replace him and to prevent someone worse from coming to power (e.g. an occupation force).  The Obama policy is realistic (although perhaps not exactly legal).  Farrow’s faith in the ICC as something that can bring peace to Sudan is deeply misplaced

Dershowitz’s Idea of “Fair” International Law

by Kevin Jon Heller

So, Alan Dershowitz has decided that international law needs to be “delegitimized,” because it is unfair to Israel.  It is reasonable to consider, therefore, what Dershowitz believes a “fair” international law would allow Israel to do.  Here is one of his suggestions, from a 2002 Jerusalem Post editorial entitled “New Response to Palestinian Terrorism” (emphasis mine):

In light of the willingness of suicide bombers to die in the process of killing Israelis, the traditional methods of deterrence and retaliation seem insufficient. To succeed, Israel must turn the Palestinian leadership and people against the use of terrorism and the terrorists themselves. One way to do this is to make terrorists directly bear the responsibility for losses inflicted on the Palestinian cause as a direct result of their terrorism.

Here is my proposal. Israel should announce an immediate unilateral cessation in retaliation against terrorist attacks. This moratorium would be in effect for a short period, say four or five days, to give the Palestinian leadership an opportunity to respond to the new policy. It would also make it clear to the world that Israel is taking an important step in ending what has become a cycle of violence.

Following the end of the moratorium, Israel would institute the following new policy if Palestinian terrorism were to resume. It will announce precisely what it will do in response to the next act of terrorism. For example, it could announce the first act of terrorism following the moratorium will result in the destruction of a small village which has been used as a base for terrorist operations. The residents would be given 24 hours to leave, and then troops will come in and bulldoze all of the buildings.

The response will be automatic. The order will have been given in advance of the terrorist attacks and there will be no discretion. The point is to make the automatic destruction of the village the fault of the Palestinian terrorists who had advance warnings of the specific consequences of their action. The soldiers would simply be acting as the means for carrying out a previously announced policy of retaliation against a designated target.

Further acts of terrorism would trigger further destruction of specifically named locations. The “waiting list” targets would be made public and circulated throughout the Palestinian-controlled areas. If this automatic policy of destroying targets announced in advance is carried out with the full support of the entire government, including those who are committed to a resumption of the peace process, a clear message will be sent to the Palestinian people: Every time terrorists blow themselves up and kill civilians, they are also blowing up one of their own villages.

The most charitable reading of this proposal is that Dershowitz is advocating that Israel commit a wide variety of war crimes and/or crimes against humanity involving civilian objects.  The less charitable one — and the more persuasive — is that he is advocating that Israel commit a wide variety of war crimes and/or crimes against humanity involving civilians themselves.  After all, given that he is calling for an “automatic,” discretionless response, the bulldozers would knowingly and deliberately kill civilians if they did not heed Israel’s call to flee a village targeted for destruction — as they almost certainly wouldn’t.

If Dershowitz thinks that international law is unfair because it does not permit these kinds of crimes, I hope it remains unfair for decades to come.

Dershowitz: “My job today is to delegitimize international law.”

by Julian Ku

The Jerusalem Post reports on a recent discussion between Alan Dershowitz, Aharon Barak, and Amnon Rubinstein on Israel’s proper attitude toward international law.  Each represented a different perspective. Barak (former Israeli Supreme Court chief) suggests that Israel must follow international law as it is, while Rubinstein argued that Israel should engage to make sure international law is interpreted fairly and reasonably against it.  And then there is Dershowitz’s position, which is (predictably), the most interesting and extreme position:

Dershowitz charged that Israel was singled out for discrimination by those who interpret international law, whether they are international tribunals like the International Court of Justice, human rights organizations or left-wing academics, including Israeli and Jewish ones.

“The judges in the international tribunes are corrupt,” Dershowitz said. “They are appointed by political leaders to do their state’s bidding. You can’t have one law for Britain, one for America and another one for Israel. You can’t have different laws for thee and me. We see human rights turning into human wrongs or human lefts.

“My job today is to delegitimize international law, to attack it to the core. There must be one standard for all. Until that day happens, I will be its sworn enemy. I prefer no international law to unfair international law.”

Buried beneath Dershowitz’s colorful rhetoric (“sworn enemy”!) is a lot of legitimate criticism of how the laws of armed conflict are applied against Israel.  Since the Israeli government has been, in general, pretty sensitive to international law issues, its ultimate attitude toward this kind of international law is pretty important.  Interestingly, it is Dershowitz, the non-Israeli, who is recommending the most radical and aggressive position.

The ECCC Issues a Landmark Decision on JCE III

by Kevin Jon Heller

The Extraordinary Chambers in the Courts of Cambodia has just held that JCE III, otherwise known as “extended” joint criminal enterprise, did not exist under customary international law during 1975-1979, the period over which the ECCC has temporal jurisdiction. The decision is a stunning rebuke to the ICTY, which invented — literally out of thin air — that form of JCE in Tadic, its first decision.

In a nutshell, JCE III holds a defendant who participates in a common plan to commit an international crime responsible for the commission of unplanned crimes that he was aware might be committed.  Consider, for example, a group of soldiers who pillage a captured village pursuant to a common plan.  If one of the soldiers commits rape while pillaging the village, any of his comrades will be guilty of both pillage and rape if they foresaw the possibility that rape would be committed during the pillaging.

JCE III has always been controversial, with scholars criticizing it on two basic grounds.  First, they have pointed out that JCE III violates the principle of culpability, because — as the example above indicates — it holds a defendant responsible for a crime even though he did not commit its actus reus and did not possess the necessary mens rea.  The ICTY has even held that JCE III results in the defendant’s conviction as a principal, not as an accessory, despite overwhelming domestic practice to the contrary.

Scholars have also argued that JCE III does not exist under customary law, contrary to the ICTY’s assertion in Tadic.  There is no question that JCE I and JCE II, “basic” and “systemic” JCE, are consistent with customary international law; both are amply supported by WW II-era international and domestic jurisprudence.  But the same cannot be said of JCE III: none of the WW II-era cases applied it, and an equivalent mode of participation exists in very few national jurisdictions.

The ECCC’s decision addressed the second criticism, agreeing with critics that the ICTY invented JCE III.  It’s a long analysis and highly technical, so I won’t try to summarize here.  But it’s absolutely devastating, leaving Tadic in smoldering ruins.  Readers interested in JCE should definitely give the decision a read.

I have to admit, I feel more than a little vindicated by the ECCC’s decision.  I wrote a long motion in the Karadzic case arguing that customary international law does not permit a defendant to be convicted of a special-intent crime such as genocide via JCE III.  The motion relied on much, if not most, of the same international and domestic jurisprudence that the ECCC cites in defense of its decision.  The ICTY refused to address the substance of the motion, holding that the JCE III issue was not “jurisdictional” and could be dealt with in the final judgment if Karadzic was convicted.  The ECCC’s decision indicates the absurdity of the ICTY’s position.

I have always been skeptical of the ECCC, particularly concerning its ability to generate quality jurisprudence.  I am delighted to say that the early returns indicate my skepticism might have been unwarranted.

Is the OAS Firearms Convention Unconstitutional?

by Julian Ku

David Kopel, Theodore Bromund, and Ray Walser offer this Heritage Foundation essay analyzing (and attacking) the Inter-American Convention on the Illicit Sale of Firearms, Ammunition, Explosives and Other Related Materials (CIFTA).   Although critical, the essay doesn’t actually focus on the constitutional problems, since those are fairly unclear. In fact, the First Amendment problems seem larger than the Second Amendment problems.  Interestingly, although the writers agree that most constitutional defects could be cured by reservations, the fact that Harold Koh is  the legal adviser in the State Department leads them to argue that such reservations would not be made, or not defended in court if later challenged.

The conflict between the U.S.’s treaty obligations and the Constitution would also be useful to domestic advocates who argue that the Constitution is a barrier to U.S. compliance with “international norms.” Thus, the convention fits neatly into a broader transnationalist strategy to reduce the ability of the U.S. to govern itself through laws and institutions of its own making. By backing the convention, its advocates also advance the idea that the U.S. should act at the suggestion and under the guidance of other states and ultimately of the “international community.”

The defects in the convention are serious and pose prudential risks that cannot be remedied without a substantial number of U.S. reservations to the convention. It is particularly troubling that Harold Koh, a key Administration appointee, offered an unqualified endorsement of the convention before taking office and expressed doubt about the legal validity of reservations. While his criticism of the legality of reservations is baseless, the number and extent of the necessary reservations would be substantial and incompatible with the core of the convention. The U.S. can therefore neither properly ratify the convention with reservations nor safely ratify it without reservations.

I am not as worried as they are about this treaty, or about the legal validity of reservations. But it is true that I have a hard time imagining Koh defending the constitutionality of such reservations in court.

A Word on Maqaleh

by Deborah Pearlstein

Cross-posted at Balkinization

Following my co-blogger Ken Anderson’s lead, I wanted to add a few additional notes on the D.C. Circuit’s holding today that a group of detainees held at the U.S. military base at Bagram, Afghanistan, do not have a constitutional right to seek a writ of habeas corpus in U.S. federal court. While acknowledging that at least two of the detainee-petitioners had been picked up far outside the Afghan borders (one, most notably, in Thailand) and only came to be in the Afghan theater because the U.S. government brought them there, the court concluded that the “practical obstacles inherent in resolving the prisoner’s entitlement to the writ” while petitioners were detained in an active theater of war weighed against recognizing an extraterritorial constitutional right to habeas.

Many things to say on the decision’s import and meaning, but here I’ll just start with two unrelated points. First, on the import. Whatever one thinks of the opinion on the merits, it may be easy to overstate its practical significance. The Obama Administration’s litigation strategy in all of its highest profile detention cases has been to moot key cases on their facts before they can be finally resolved by the Supreme Court. Such was the case with, for example, the weighty claim by a group of Gitmo detainees that winning their habeas cases entitled them to release in the United States. So too here, all indications are the Administration is scurrying not only to hand over its detention operations in Afghanistan to the Afghans generally (a move key human rights organizations endorse as a matter of international law), but also reportedly to transfer remaining non-Afghan detainees to their home countries for continued detention and/or trial. It’s possible the Administration may not succeed in its mooting strategy this time. But given the months they now have between petitions for rehearing en banc in the D.C. Circuit and (failing that) for cert sure to follow, I wouldn’t necessarily bet against them. If the U.S. cedes control of Bagram before the case reaches the Supreme Court, what will remain on the books is the ruling of an appeals court, in a decision, as Ken also seems to see it, highly and self-consciously limited to its particular facts.

Second, on the content. It seems fair to say the reasoning in the opinion was slight. And not just because out of the 26 pages of published writing, one doesn’t reach the meet of the analysis until the bottom of page 19 (after which follows about a page’s worth of block quotes, and another nearly full page of conclusion restating the decision in summary). What reasoning there is doesn’t especially engage the particular facts of the case. Consider, for example, how heavily today’s decision rested on the analysis in the Supreme Court’s 1950 decision in Johnson v. Eisentrager, in which the Court declined to allow U.S. military detainees held in Germany (following their war crimes convictions in China) to seek habeas in U.S. courts. In particular, the Maqaleh court quoted in block the following passage from Eisentrager in support of its conclusion that habeas for the 3 Bagram detainees here would be unwise to pursue:

“Such trials would hamper the war effort and bring aid and comfort to the enemy. They would diminish the prestige of our commanders, not only with enemies but with wavering neutrals. It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home. Nor is it unlikely that the result of such enemy litigiousness would be a conflict between judicial and military opinion highly comforting to enemies of the United States.”

To be clear, in suggesting that habeas for Bagram would “bring aid and comfort to the enemy” and “diminish the prestige of our commanders” in Afghanistan, the appeals court here did not expressly (or even impliedly) cite to some particular claim in the record before it. Neither was it discernably deferring to some perceived superiority of the Executive’s assessment of the strategic or practical import of allowing the Bagram detainees captured outside Afghanistan to seek a writ of habeas corpus. Rather, the D.C. Circuit seemed to be doing exactly what the Eisentrager Court did – asserting, based on the court’s own impression, that greater legal process would only hamper the strategic cause for which the United States is fighting in (on this occasion) Afghanistan.

Yet particularly in the counterinsurgency context in which the U.S. is now fighting, it seems an odd – and overstated – position for the court to take. Indeed, as the Commander of NATO forces in Afghanistan, U.S. General McChrystal, explained in his pivotal strategy report last year, “the Afghan people see U.S. detention operations as secretive and lacking in due process.” Because detention operations could thus become “a strategic liability,” the United States faces a “critical” need “to conduct all detention operations in this country in accordance with international and national law.” McChrystal went on to recommend the turnover of detention operations to the Afghans, once they developed the capacity to sustain such operations lawfully and effectively. There is nothing in his report that would support the conclusion the Maqaleh court reached about the impact of judicial review on “the enemy,” and much in it that might support the view that habeas in the limited context presented here – where detainees have been shipped from a country at peace with the United States into a country where the United States is at war – might be of some strategic benefit with “wavering neutrals” pending handover to the Afghan government.

I don’t mean to overstate the point. The government here, after all, opposed extending habeas to Bagram. Nonetheless, especially given the stakes, it seems insufficient for the court to rely centrally on an assertion that seems at least somewhat in tension with positions the government has itself elsewhere taken on this particular issue. In Hamdan, the government had argued that it was impracticable to pursue war crimes trials under existing court martial rules on the bare grounds that the demands of counterterrorism were great. Writing for a majority of the Supreme Court, Justice Stevens rejected this claim as, among other things, lacking basis in the record. Hard to demonstrate the D.C. Circuit crossed that threshhold here.

Should We Expand the Duties of Defenders in the Law of Armed Conflict?

by Julian Ku

During a conference earlier this week at Northwestern on Israel and International law, NYU law professor Samuel Estreicher presented an interesting proposal to shift the focus of the law of armed conflict toward the duties of defenders.  Arguing that most of the law (or at least law interpretation) seems focused on attackers, the duties of defenders are largely free of regulation. Hence, Israel Defense Forces are swamped with duties with little or no attention to the duties held by Hamas defenders in Gaza.  As Estreicher argues, ignoring defender duties may undermine one of the goals of the the law of armed conflict: the reduction or minimization of civilian casualties.  Here is the essence of his argument:  The following is the essence of his proposal to draw out such defender duties from existing law of armed conflict sources.

1. The Prohibition of Civilian Shields

Geneva IV Art. 28: “The presence of a protected person may not be used to render certain points or areas immune from military operations.”9

AP Article 51(7): “The presence or movements of the civilian population or individual civilians shall not be used to render certain points or areas immune from military operations, in particular in attempts to shield military objectives from attacks or to shield, favour or impede military operations. The Parties to the conflict shall not direct the movement of the civilian population or individual civilians in order to attempt to shield military objectives from attacks or to shield military operations.”

2. The Prohibition of Perfidy

AP Article 37(1): “It is prohibited to kill, injure or capture an adversary by resort to perfidy. Acts inviting the confidence of an adversary to lead him to believe that he is entitled to, or is obliged to accord, protection under the rules of international law applicable in armed conflict, with the intent to betray that confidence, shall constitute perfidy. The following acts are examples of perfidy: …(c) the feigning of civilian, non-combatant status ….”

3. The Duty to Protect the Civilian Population Against Dangers from Military Operations

AP Article 51(1): “The civilian population and individual civilians shall enjoy general protection against dangers arising from military operations.”

AP Article 57(1): “In the conduct of military operations, constant care shall be taken to spare the civilian population, civilians and civilian objects.”

AP Article 57(4): “In the conduct of military operations at sea or in the air, each Party to the conflict shall in conformity with its rights and duties under the rules of international law applicable to armed conflict, take all reasonable precautions to avoid losses of civilian lives and damage to civilian objects.”

4. The Duty to Remove Civilians from and Not Locate Military Objectives in the Vicinity of Military Objectives

AP Article 58: “The parties to the conflict shall, to the maximum extent feasible: (a) without prejudice to Article 49 of the Fourth Convention, endeavour to remove the civilian population, individual civilians and civilian objects under their control from the vicinity of military objectives; (b) avoid locating military objectives within or near densely populated areas; (c) take the other necessary precautions to protect the civilian population, individual citizens and civilian objects under their control against the dangers resulting from military operations.”

5. The Duty to Avoid Methods or Means of Warfare that Cause Unnecessary Injury or Suffering

AP Article 35:

1. In any armed conflict, the right of the Parties to the conflict to choose methods or means of warfare is not unlimited. 2. It is prohibited to employ … methods of warfare of a nature to cause superfluous injury or unnecessary suffering.

No Habeas Jurisdiction at Bagram

by Kenneth Anderson

I’m sure others here at OJ will have more detailed views, but … the U.S. Court of Appeals for the D.C. Circuit has handed down its opinion in Al Maqaleh v. Gates.  Chief Judge David Sentelle’s opinion (joined by Judge David Tatel and Senior Judge Harry Edwards) opens:

Three detainees at Bagram Air Force Base in Afghanistan petitioned the district court for habeas corpus relief from their confinement by the United States military.1 Appellants (collectively “the United States” or “the government”) moved to dismiss for lack of jurisdiction based on § 7(a) of the Military Commissions Act of 2006, Pub. L. No. 109–366, 120 Stat. 2600 (2006) (“MCA”). The district court agreed with the United States that § 7(a) of the MCA purported to deprive the court of jurisdiction, but held that this section could not constitutionally be applied to deprive the court of jurisdiction under the Supreme Court’s test articulated in Boumediene v. Bush, 128 S. Ct. 2229 (2008). The court therefore denied the motion to dismiss but certified the three habeas cases for interlocutory appeal under 28 U.S.C. § 1292(b). Pursuant to that certification, the government filed a petition to this court for interlocutory appeal. We granted the petition and now consider the jurisdictional question. Upon review, and applying the Supreme Court decision in Boumediene, we determine that the district court did not have jurisdiction to consider the petitions for habeas corpus. We therefore reverse the order of the district court and order that the petitions be dismissed.

A couple of reactions on a really, really fast read.  First, the opinion does not appear like a big win for either side on its reasoning, rather than result.  It seems nuanced and not at all either, habeas from here to Mars, or no habeas anywhere outside of the territorial US (and Guantanamo).  It seems to hold out the possibility of a different situation reaching a different result – meaning, it does not seem to me that it has clearly removed the federal courts from at least reviewing detention cases worldwide.  Second, it speaks multiple times of “active theatres of conflict” and “zones of conflict” – as a reason for treating Bagram differently; it addresses “all of Afghanistan” as an active theater of conflict.  This follows, of course, from the analysis of different places and Eisentrager, but I wonder whether it signifies in some future case acceptance of the idea that under the laws of war in general armed conflict is geographically defined, including for the purposes that Mary Ellen O’Connell and others have been debating, over targeted killing, for example.  Not clear, I suppose, given that habeas has its own set of considerations not necessarily applicable to the scope of armed conflict as such.  Third, let’s mention, in light of the criticisms of Justice Department lawyers involved in detainee cases, the exceedingly tough government argument is under signature of … Neal Katyal. But this is a really quick read; I could have misread things or got them wrong.

EJILTalk Discussion of ‘The Rise of International Criminal Law’

by Kenneth Anderson

In the category of advertisements for myself … Julian was kind enough to mention that EJILTalk is hosting a discussion of an article of mine called The Rise of International Criminal Law, which appeared in EJIL last year as part of its 20th anniversary issues.  It was a relatively short, but wide-ranging essay trying to assess, twenty years on, where ICL has gone and is likely to go, on a whole series of otherwise unrelated issues.  EJIL ran a response in the print edition by Amrita Kapur, and in addition responses at the online blog by her and by Brad Roth.  I have finally managed to get a response together, which is quite long and will run in three posts.  The other responses are linked at the beginning of that post, as well.  I have to thank publicly EJILTalk for running such a long response, which in many ways is practically a new essay – but especially Amrita Kapur and Brad Roth for reading so closely and with such nuance my original article.  I’m very grateful to them for so much close reading and thought.  Below the fold is a bit from my response.

Continue Reading…

Naomi Campbell May Be Forced to Testify at Sierra Leone War Crimes Tribunal

by Julian Ku

This sounds like a bit of a publicity stunt by prosecutors at the Special Tribunal for Sierra Leone, but it could very well work.

Prosecutors want to subpoena Miss Campbell to testify over claims she was given the “large” diamond by Taylor after a 1997 dinner hosted in South Africa by former president Nelson Mandela.

The one Taylor is accused of giving to Miss Campbell, 39, is said to be among those he obtained from rebels in neighbouring Sierra Leone and took to South Africa to sell for weapons. It is alleged to have come from mines in Sierra Leone which were seized in a campaign of terror.

Blood diamonds, sometimes referred to as conflict diamonds, are diamonds mined in rebel-held regions of Africa used to fund war.

I just don’t see how her testimony could be very important unless he told her about the source of the diamond.  But I don’t know the facts of the case very well, and I suppose there could be some non-celebrity reason to make her testify.

Keitner Takes on Bradley/Goldsmith on Government Official Immunity

by Julian Ku

Prof. Chimene Keitner at UC-Hastings has posted a short essay in the online version of the Yale Journal of International Law criticizing the novel and influential interpretation of the Foreign Sovereign Immunities Act proposed by Profs. Curtis Bradley and Jack Goldsmith.  In a series of articles, Bradley and Goldsmith have argued that the FSIA’s immunity for “foreign state[s]” should be interpreted to include foreign government officials.  This argument may very well be adopted by the Supreme Court this term in Samantar v. Yousuf (for background, see here and for my take on oral argument, see here). Here is a summary of her critique:

Stated briefly, the observation that “a state acts through individuals” does not support Bradley and Goldsmith’s proposal as a matter of logic, because both U.S. and international law attribute personal responsibility to individuals for certain types of illegal conduct precisely because they engage in such conduct under color of law.  When a certain criterion defines conduct as illegal, it does not make sense for that same criterion to place individuals who have engaged in that conduct categorically beyond the reach of U.S. courts. Nor do policy considerations support Bradley and Goldsmith’s proposal. There are at least three reasons for this: the FSIA was not designed to include individuals, reading it to do so would conflict with the Torture Victim Protection Act, and various specialized  immunities and other non-statutory doctrines already afford substantial protections to foreign officials and to the interests of foreign states in U.S. courts. Finally, neither international treaties nor customary international law require treating all “official capacity suits” as suits against the state itself, without regard to the conduct at issue. It would be anomalous to find that international law categorically prevents states from holding individuals accountable for universally condemned violations of international law.

I still don’t know what I think about this issue. Hopefully, I’ll figure something out before the Supreme Court comes down with a decision, but perhaps not. In any event, it is always worth considering Chimene’s take on these things.

Security Contractors and Coast Guard Use “BP’s Rules” to Threaten Journalists with Arrest

by Chris Borgen

John Robb notes the following on his excellent Global Guerillas blog:

Coast Guard and BP’s private military contractors team up to enforce media and scientific blackout (part of BP’s information operations campaign) on the Gulf of Mexico oil disaster. Here, they are caught on camera turning away a CBS film crew.

Coast Guard officials say they are looking into the incident. I look forward to hearing their explanation.

How the White House Fell in Love with Drone Warfare

by Julian Ku

Interesting article from Reuters on the growth of drone warfare under the Obama administration.  One interesting note: drone attacks are being contemplated for Yemen, Somalia, and even against pirates.  Also, the key explanation for the Drone Wars appears to be the legal problems created by capturing, interrogating, and detaining individuals.

Some current and former counterterrorism officials say an unintended consequence of these decisions may be that capturing wanted militants has become a less viable option. As one official said: “There is nowhere to put them.”

A former U.S. intelligence official, who was involved in the process until recently, said: “I got the sense: ‘What the hell do we do with this guy if we get him?’ It’s not the primary consideration but it has to be a consideration.”

Garzon Granted Permission to Work at the ICC

by Kevin Jon Heller

I continue to believe that this is a terrible idea:

Spain’s top judicial panel had suspended Mr Garzon on Friday pending his trial on charges he exceeded his authority by ordering an investigation into mass killings by the forces of former dictator Francisco Franco.

The suspension from his functions as a judge was widely thought in Spain to be an obstacle to a transfer to a foreign court but the judicial panel approved Garzon’s request to spend seven months at The Hague court.

“Legal reasons could not be found to prevent the hiring of the judge as a consultant”, Gabriela Bravo, spokeswoman for the judicial panel told reporters.

If Julian and I agree about something, could we possibly be wrong?

President Obama Submits Nuclear Arms Reduction Treaty to Senate

by Julian Ku

Last week, President Obama submitted the Treaty with Russia on Measures for the Further Reduction of Strategic Offensive Arms to the U.S. Senate.  Reading it is tough going, given all the technical terminology. A couple of not very profound observation:

1) Is this Treaty self-executing?  For the many pro-self execution folks, the answer should be yes (look at the Supremacy Clause!).  But would that make any legal or practical sense? A modern court would almost certainly say no, and I don’t think most folks would disagree with that result.

2) This is the first major treaty that the Administration has submitted to the Senate. Indeed, it is only the fourth treaty submitted since January 20, 2009, and two of those were protocols to tax conventions, which barely count.  I know folks at State are busy, but what’s the holdup?  Where is, say, The Hague Convention on the Choice of Courts, the Convention for the Elimination of Discrimination Against Women, the U.N. Convention on the Law of the Sea?  I’m not exactly complaining, but I wonder why the Administration didn’t submit those treaties (or at least one of those treaties) right out of the box back in 2009. It is only going to get harder from here.  Does anyone think Senator Rand Paul is going to vote for any of these?

Somali “Pirate” Pleads Guilty and Avoids Life Sentence

by Julian Ku

The young Somali captured last year in dramatic U.S. Navy operation has plea bargained himself into a minimum 27 year sentence.

A Somali man has pleaded guilty in New York’s court to seizing a US ship and kidnapping its captain last year.

Abdiwali Abdiqadir Muse now faces a minimum of 27 years in prison. He is expected to be sentenced in October.

Muse is the only surviving attacker on the Maersk Alabama merchant ship off Somalia’s coast in April 2009.

A couple of observations about this result, which should caution folks excited about the effectiveness of U.S. federal courts in combatting piracy. (It appears the defendant avoided a piracy conviction and settled for a lesser charge).

1) Timing: Muse was captured in March 2009 and charged with, among other things, “piracy as defined in the law of nations,” under 18 U.S.C. 1651. It has taken 13 months to get a plea bargain on a lesser charge???  If we were just going to plea bargain him, why did it take so long?

2) Evidence: The logistics of finding translators, and dealing with classified evidence, is another reason these trials are going to take a fair amount of time.  Case in point: the federal trial in Norfolk, Va of another group of Somali pirates was recently delayed for five months just so the parties could sort through classified evidence and find translators.

I don’t say federal courts are doing a bad job here.  But the logistical difficulties are going to make this a very weak and ineffective deterrent to further piracy. As Anne Applebaum notes, the other option was tried by the Russians recently when they “released” a group of Somali pirates on a dinghy 350 miles from shore without an navigation equipment.  The 21st century version of “walking the plank”?

At Least Arizonans Don’t Commit “Burka Rage” Attacks

by Julian Ku

I guess this is why they need a ban on the burka in France. Stories like this make France seem decidedly more unpleasant for certain Muslims than Arizona is for illegal immigrants:

France had its first case of “burka rage” at the weekend when a shopper allegedly tried to pull the veil from the face of a Muslim woman and the resulting scuffle turned violent.

The Muslim woman, named only as Élodie, told reporters that she had been leaving a shoe store in Trignac, near St Nazaire, when two passers-by, apparently mother and daughter, made derogatory remarks before telling her: “Go back to your own country.”

The mother, a lawyer, allegedly tried to tear off the niqab worn by Élodie — at which point the two began trading slaps before being separated by shop assistants, Élodie said.

“Things got nasty,” she added. “The older woman grabbed my veil to the point of ripping it off.”

African Cyberpunk, DNA Hacking, and the Problems of Transnational Regulation

by Chris Borgen

There’s a post that’s been making the rounds in the science fiction blogosphere that warrants note by those interested in international law, especially in regards to issues of international trade, development, and regulation. The piece is by Ghanaian writer Jonathan Dotse and it concerns the rise of African cyberpunk.

Before getting to Dotse’s post, though, a couple of words on cyberpunk itself. Cyberpunk is a sci-fi style that arose primarily among U.S. and Canadian writersin the 1980’s. Setting aside the optimistic science fiction of earlier generations (think Star Trek) and the grand themes of “space operas” like Dune, cyberpunk instead focused on the street-level effects of technological change and imagined a gritty, dystopian, future. Good-bye Star Wars, hello Blade Runner!

This original iteration of cyberpunk reflected the concerns of the U.S. of the 1980’s: the development of computer networks (and especially of hacker culture), the rise of corporate power (and especially Japanese corporate power), the relative decline of the United States, the rise of crime and gang culture, and so on.  Science fiction is not really a crystal ball for peering into the future; it’s more like a funhouse mirror reflecting the present. Nonetheless, science fiction writers, in extrapolating from the present, can sometimes spot important trends earlier than many other writers.

Fast forward from the 1980’s to today. Cyberpunk is no longer the hip new style; it is well-known and pretty well-worn. Some of its images of the future now seem as fanciful as Fritz Lang’s Metropolis.  But, more importantly, many of its then-revolutionary themes (hacking, cyberwar, illicit genetic engineering, private military contractors run amok) are no longer revolutionary but rather common. And note– I don’t mean these topics are commonplace in sci-fi literature (though they are) but rather that they are (or are becoming) commonplace in serious policy discourse. We’ve got a drone war in Pakistan, debates over “cybersecurity,” and marketbots gone wild. Yesterday’s avant-garde is today’s daily brief. (But see this cautionary note.)

So now we get to Dotse’s post. Dotse is focused on how the literature of cyberpunk, which pre-figured some aspects of life today (but mis-analyzed others), may be especially relevant in Africa (and, I would add, in the developing world more broadly). Dotse writes:

 The Internet counterculture of the West went mainstream faster than anyone could have predicted and the grim forecast of the cyberpunk movement became a self-defeating prophecy…. [snip] …

However, this power didn’t come without regulation. The surveillance capabilities of the West have been well orchestrated to secure a significant degree of control over its citizens’ virtual lives. Its law enforcement continually strives to gain jurisdiction over the ever-expanding boundaries of Net, making it a far stretch from the lawless frontier cyberpunk predicted.

But here in Africa, development has been dangerously asymmetrical. By the time any product hits our soil it’s already fully-developed and ready to be abused by the imagination. Technology designed for vastly different societies invariably trickles down to our streets, re-sprayed, re-labeled, and hacked to fit whatever market will take it. Regulation? You can forget about regulation.

Whatever rules the creators imagined fly out of the window as freighters are crammed to bursting with the second-hand remains of their creations, damn wherever they’re heading as long as they can be cleared from port.

What Dotse describes is familiar to anyone who’s read some William Gibson (the Neuromancer William Gibson, not the Miracle Worker one): tech innovation hits the street and then it is hacked and re-hacked. Or just re-purposed. Turntables become musical instruments. Text messaging gives rise to flash mobs. Street tech.

Consider a recent Wall Street Journal article on the rise of do-it-yourself genetic engineering

Supreme Court Goes Back to the International Well (Roper Redux)

by Peter Spiro

Justice Kennedy has returned to foreign sources in his Eighth Amendment jurisprudence with today’s decision in Graham v. Florida, striking down state statutes sentencing juveniles to life without parole for crimes other than homicide:

[A]s petitioner contends and respondent does not contest, the United States is the only Nation that imposes life without parole sentences on juvenile nonhomicide offenders. We also note, as petitioner and his amici emphasize, that Article 37(a) of the United Nations Convention on the Rights of the Child, ratified by every nation except the United States and Somalia, prohibits the imposition of “life imprisonment without possibility of release . . . for offences committed by persons below eighteen years of age.” Brief for Petitioner 66; Brief for Amnesty International et al. as Amici Curiae 15–17. As we concluded in Roper with respect to the juvenile death penalty, “the United States now stands alone in a world that has turned its face against” life without parole for juvenile nonhomicide offenders.

Why here and not in the 2008 decision in Kennedy v. Louisiana, which made not so much as a nod to international practice on the way to halting the death penalty as punishment for rape.  I had been telling my students that Louisiana evidenced a retreat in the wake of Roper‘s storm, giving in to the rabblerousers across the street.  Do we now have a rule under which international practice is relevant only where the US all by itself?

The Supreme Court takes treaty interpretation seriously: Abbott v. Abbott

by Duncan Hollis

The U.S. Supreme Court handed down its first-ever international family law opinion today in Abbott v. Abbott.  You can access the decision here.  In short, a 6-3 majority (authored by Justice Kennedy) found that the Hague Convention on the Civil Aspects of Child Abduction treats ne exeat rights (that is, rights to consent before the other parent takes the child to another country) as “rights of custody” rather than “rights of access.”  That interpretation has significant consequences as violations of custodial rights trigger a right of return under the treaty, whereas violations of access rights do not.  I’ve only had a chance to read the opinion quickly, so let me offer some initial reactions, and reserve the right to come back later with a more detailed analysis.

The Court uniformly accepts the use of foreign law to interpret treaties
First, as regular readers know, there’s a lot of controversy surrounding the use of foreign law by some members of the Court in recent years.  Indeed, Chief Justice Roberts, Justice Alito and Justice Sotomayor were all called on in their confirmation hearings to denounce the use of foreign and international law in interpreting the U.S. Constitution.  I’d expect Elena Kagan to get similar questions when her nomination comes before the Senate this summer.  But, in Abbott the Court ignores this controversy, and thereby suggests its limited only to the use of foreign law in interpreting the Constitution.  Indeed, every member of the Court in this case–in both the majority and the dissent–end up citing and relying on foreign law as a significant part of their analysis of whether the ne exeat right is a right of custody or not.  The majority heavily relies on the fact that most foreign courts to consider the issue have found ne exeat rights are rights of custody to support reaching the same conclusion. Stevens’ dissent, in contrast, contests the uniformity and strength of those views, while emphasizing other foreign court decisions taking the opposite position.  Thus, whether it’s Justices Scalia, Sotomayor, or Stevens, the Court seems clearly willing to accept and employ foreign law decisions when it comes to interpreting U.S. treaties and the statutes that implement them.  Indeed, as the dissent notes, the Court was willing to do this in Abbott even if it meant overruling almost all the U.S. Court of Appeals’ decisions that had found ne exeat rights were not rights of custody. 

A victory for Justice Sotomayor
Second, the case represents a victory for Justice Sotomayor, who, as I’ve noted before, dissented in the leading Court of Appeals decision on this topic, Croll v. Croll.  Justice Kennedy’s opinion covers much the same ground as her earlier dissent.  Indeed, although I haven’t re-read her dissent closely, it’s my sense that the Abbott Majority adopts both her method of analysis and her specific findings on this question nearly in toto, whether in looking at the treaty’s text, its object and purpose, the negotiating history, and other foreign law decisions.

This was a treaty interpretation case, not a custody case. 
Third, although this was the first international family law case to come before the Court, the opinion ends up being more about treaty interpretation than the custodial fight that generated the case itself.  Indeed, the Majority ends its opinion by noting that even if the treaty provides a right of return when custodial rights are violated (including the ne exeat right at issue here), the Hague Convention also provides exceptions to the obligation to return a child if the child might (a) face a grave risk of harm or an otherwise intolerable situation, or (b) have reached an age and sufficient maturity to express a preference on being returned.  As a result, even as the Court resolved the ne exeat treaty interpretation question, it left open whether or not the child at issue in this case actually had to be returned to Chile.  And given that the child in question is around 15 now, I suspect that continued litigation on his return may soon become moot since the treaty’s provisions only apply to children under the age of 16.  Thus, the Abbott case is likely to have any lasting influence in terms of its approach to treaty interpretation rather than any resolution of the difficult custody fight that brought the case to the court in the first place. Which brings us to my final point.

The Court takes treaty interpretation seriously
Both the majority and the dissent expend a lot of time and resources to figure out what was, by all accounts, a close question of treaty interpretation.  Although in the past, many have questioned if the Supreme Court’s interpretative method aligns with the international law rules on treaty interpretation, I don’t think this case suggests a deep departure from the international law rules.  Indeed, even though it does not reference them, the majority’s method largely tracks articles 31 and 32 of the Vienna Convention on the Law of Treaties, looking at the treaty’s text first, then the context (although I don’t think they ever call it that), the treaty’s object and purpose, state practice, the negotiating history, and the views of publicists on the question.  And, in those few areas where the Court takes into account factors left out of the VCLT (i.e., the Majority’s deference to the State Department’s view that a ne exeat right is a right of custody) the Majority does so with relatively little elaboration.  At the same time, the Court’s emphasis on the Hague Convention’s object and purpose may actually prove influential going forward.  The Court ended up its treaty analysis by suggesting that its interpretation made sense since, to hold otherwise, would have meant legitimizing many of the removals that the Court thought the Convention had been drafted to prevent.  That sort of approach runs counter to a purely textual interpretation and suggests, for better or worse, that the Court may demonstrate a more dynamic approach to treaty interpretation issues in the future.

More on Israel’s Support for Apartheid

by Kevin Jon Heller

As the smear campaign against Richard Goldstone gets ever more desperate, it seems opportune to provide a bit more information about Israel’s support for apartheid, to which Goldstone’s pales in comparison.  Here is Sasha Polokow-Suransky again, this time responding to attacks on Goldstone by the Speaker of the Knesset and Israel’s Deputy Foreign Minister:

Goldstone’s apartheid-era judicial rulings are undoubtedly a blot on his record, but his critics never mention the crucial part he played in shepherding South Africa through its democratic transition and warding off violent threats to a peaceful transfer of power — a role that led Nelson Mandela to embrace him and appoint him to the country’s highest court.

More importantly, Ayalon’s and Rivlin’s moralism conveniently ignores Israel’s history of arming the apartheid regime from the mid-1970s until the early 1990s. By serving as South Africa’s primary and most reliable arms supplier during a period of violent internal repression and external aggression, Israel’s government did far more to aid the apartheid regime than Goldstone ever did.

The Israel-South Africa alliance began in earnest in April 1975 when then-Defense Minister Shimon Peres signed a secret security pact with his South African counterpart, P.W. Botha. Within months, the two countries were doing a brisk trade, closing arms deals totaling almost $200 million; Peres even offered to sell Pretoria nuclear-capable Jericho missiles. By 1979, South Africa had become the Israeli defense industry’s single largest customer, accounting for 35 percent of military exports and dwarfing other clients such as Argentina, Chile, Singapore, and Zaire.

High-level exchanges of military personnel soon followed. South Africans joined the Israeli chief of staff in March 1979 for the top-secret test of a new missile system. During Israel’s 1982 invasion of Lebanon, the Israeli army took South African Defense Force chief Constand Viljoen and his colleagues to the front lines, and Viljoen routinely flew visiting Israeli military advisors and embassy attachés to the battlefield in Angola where his troops were battling Angolan and Cuban forces.

There was nuclear cooperation, too: South Africa provided Israel with yellowcake uranium while dozens of Israelis came to South Africa in 1984 with code names and cover stories to work on Pretoria’s nuclear missile program at South Africa’s secret Overberg testing range. By this time, South Africa’s alternative sources for arms had largely dried up because the United States and European countries had begun abiding by the U.N. arms embargo; Israel unapologetically continued to violate it.

The blatant hypocrisy of the latest attack on Goldstone is nothing new. In November 1986, Benjamin Netanyahu, then Israel’s U.N. ambassador, gave a stirring speech to the General Assembly denouncing apartheid and insisting that “Arab oil producers provide the umbilical cord that nourishes the apartheid regime.” (Never mind that Israel remained absent from the 1980 U.N. vote to impose an oil embargo on South Africa in deference to its friends in Pretoria.)

Netanyahu was right that Arab and Iranian oil was flowing through middlemen to the apartheid regime, but he categorically denied Israel’s extensive military and trade ties with South Africa, calling charges of lucrative arms sales “flat nonsense” and accusing his critics of trying “to defame Israel.”

In fact, Israel was profiting handsomely from selling weapons to Pretoria at the time. Writing in the New York Times, Thomas Friedman estimated that the two countries did $400 million to $800 million of business in the arms sector in 1986. According to declassified South African documents, the figure was likely even greater: A single contract for modernization of South African fighter jets in the mid-1980s amounted to “approximately $2 billion,” and  arms sales in 1988 — one year after Israel imposed sanctions against the apartheid regime — exceeded $1.5 billion. As the former head of the South African Air Force Jan van Loggerenberg told me bluntly: “Israel was probably our only avenue in the 1980s.”

Declassified South African arms-procurement figures (which exclude lucrative cooperative ventures and shared financing arrangements) reveal the full extent of Netanyahu’s lie. The “independent IMF figures” he cited (which excluded diamonds and arms) suggested trade was a minuscule $100 million annually. It was actually between five to 10 times that amount — depending on the year — making the apartheid regime Israel’s second- or third-largest trading partner after the United States. Not all of the weapons Israel sold were used in external wars, and there is no denying that Israeli arms helped prolong the rule of an immoral and racist regime.

Who, exactly, deserves to be barred from the US?

Can Richard Goldstone Be Barred from U.S.?

by Julian Ku

I seriously doubt it, but Richard Sher, a former Department of Justice official in the Office of Special Investigations, thinks Goldstone’s apartheid-era past justifies denying Goldstone a visa to the U.S.

In a letter sent to US officials, Neal Sher, a former executive director of the American Israel Public Affairs Committee, said that recently disclosed information about Goldstone’s apartheid-era rulings raised questions about whether he was eligible to enter the United States. The letter was sent to US Secretary of State Hillary Clinton, US Attorney-General Eric Holder and Homeland Security Secretary Janet Napolitano.

Individuals who admit to acts that constitute a crime of moral turpitude¨are ineligible to enter the US, Sher charged. The recent public revelations, to which Goldstone has reportedly admitted, would appear to fit within this provision. At a minimum, there is ample basis for federal authorities to initiate an investigation into this matter, Sher said.

I’m no expert on the relevant U.S. laws here, but my impression is that this power to bar based on “moral turpitude” has been rarely exercised. See INA § 212(a)(2)(A)(i), 8 U.S.C. § 1182(a)(2)(A)(i), (barring admission of alien who has been convicted of a crime involving moral turpitude or who admits committing acts that constitute the essential elements of such a crime).  And I’m less than sure they would apply to serving as a judge in the Apartheid era, although that is certainly debatable.  I suppose one could make the case that Goldstone authorized “extrajudicial killings” (“a deliberated killing not authorized by a previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”), although I don’t think the facts support that view. For a little background on the laws here, see here.

The Los Angeles Times on Garzon’s Suspension

by Kevin Jon Heller

A good editorial, one that provides important context.  Here’s a snippet:

From the beginning, the case against Garzon has seemed to be motivated by political and personal vendettas, and the timing of these decisions is no exception. Early in the week, Garzon had asked Spanish authorities for a seven-month leave to work as a consultant to the International Criminal Court in The Hague, presumably as a face-saving measure to avoid the humiliation of a suspension. But on Wednesday, an investigating magistrate for the Supreme Court (and one of Garzon’s detractors) suddenly ordered Garzon to face trial for proceeding without jurisdiction on the Spanish Civil War cases, and the suspension followed on Friday. Such haste in a case that had been moving normally through the system since February has the whiff of malice; the decision was made even though the Spanish attorney general’s office still had questions about the case. If convicted, the 54-year-old Garzon would not be jailed, but he could be removed from the bench for up to 20 years. For all practical purposes, it would mean the end of his career in Spain.

You can read the whole thing here.

Peter Schuck Responds to My Post

by Kevin Jon Heller

Professor Schuck has graciously permitted me to post his response.  Here it is:

I am grateful for the comments that have been posted about my op-ed, and believe that John correctly captures my position.  It is common for the law to permit finders of fact to draw inferences from conduct, including inferences that are contrary to the words used by the actor.  Indeed, it is hard to imagine a system of justice that allowed words categorically to trump conduct inconsistent with those words.  The Court requires an intent to relinquish, and uttering the talismanic words before a government official is only one way to evidence that intent.  I certainly do not believe that killing an innocent American would be enough to support the inference, but doing so as part of an organized plot to methodically destroy American lives, property, and institutions, if proved, would surely be enough — so long as the requisite due process protections are available to the actor.

It is true that completion of such a legal procedure, like a treason prosecution, would be after the fact and perhaps of little consequence to the perpetrator. Indeed, as my colleague Akhil Amar points out, he might welcome de-nationalization if it frees him from certain obligations to the U.S. (of which very few remain) and from the possibility of a prosecution for treason (if treason is a crime that only citizens may commit — a proposition that Amar tells me is not altogether clear).  It is also true, as I noted, that our duty under international law not to render people stateless might constrain efforts to de-nationalize and cause courts to construe the power narrowly.  Still, the point of my op-ed is that Afroyim and Terrazas do not divest the government of this power where conduct clearly evinces an intent to wage (a kind of) war on the U.S.  As Justice Jackson rightly observed, “The Constitution is not a suicide pact.”

Time to Move to the ICC! Garzon Suspended from Spanish Judgeship

by Julian Ku

Well, it’s a good thing he already has another job lined up, although I agree with Kevin (!) that the ICC Prosecutor is making a mistake in bringing Garzon on board.  The AP reports:

MADRID — The Spanish judge who became an international hero by going after Augusto Pinochet and Osama bin Laden was suspended Friday for allegedly abusing his authority by investigating what is arguably Spain’s own biggest unresolved case: atrocities committed during and after its ruinous Civil War.

The punishment could effectively end Judge Baltasar Garzon’s career.

The unanimous decision by a judicial oversight board, the General Council of the Judiciary, was made during an emergency meeting about Garzon, said its spokeswoman, Gabriela Bravo.

Supporters chanted, cheered and clapped later as Garzon emerged from the nearby National Court, where he works. He hugged co-workers and appeared to be holding back tears before getting into a bulletproof limousine and riding away.

Garzon, 54, famous worldwide for his cross-border justice cases, has been removed from his post pending his trial on charges of knowingly going beyond the limits of his jurisdiction in 2008 by investigating the execution or disappearance of more than 100,000 civilians at the hands of supporters of Gen. Francisco Franco during the 1936-39 Spanish Civil War or in the early years of the Franco dictatorship.

Thoughts on Peter Schuck’s Wall Street Journal Editorial

by Kevin Jon Heller

Ken has already flagged the editorial, in which Schuck — a superb scholar who teaches at Yale — argues that it would be constitutionally permissible to strip Faisal Shahzad’s US citizenship because of his attempt to set off a car-bomb in Times Square.  I’m skeptical of Schuck’s argument, so I thought I’d explain why.  Here are the key paragraphs:

Revoking the citizenship of Awlaki and the Fort Hood killer, both U.S.-born, presents a more complicated constitutional question. Under a 1940 statute that is still in force, the government can de-nationalize citizens who serve in a foreign military; vote in a foreign election; swear allegiance to, hold office, or naturalize in a foreign state; expressly renounce their citizenship before certain U.S. officials; or conspire to make war against the nation.

But a 1967 Supreme Court decision, Afroyim v. Rusk, held that Congress cannot revoke citizenship without the citizen’s consent. Thus, in the case of the Times Square bomber, the government would have to prove that when he committed any of the actions listed in the statute, he intended to relinquish his citizenship.

In a 1980 case, Vance v. Terrazas, the Court reaffirmed this “intent to relinquish” requirement, but allowed the government to prove it by a mere “preponderance of the evidence.” Afroyim and Terrazas, which were both 5-4 decisions, accepted that a jury might infer intent to relinquish citizenship based on conduct—that is, even if the individual didn’t utter the magic words “I intend to renounce my citizenship”—so long as he had fair opportunity to show otherwise.

The question, then, is which acts might prove the specific intent demanded by these two rulings. In Shahzad’s case, if the government can show that he placed a bomb in Times Square at the behest of a terrorist group seeking to kill people simply because they are Americans, I believe that it should easily suffice. Unlike the citizen’s act in Afroyim—voting in an Israeli election—the Times Square plot precludes any notion of allegiance.

First off, I’m not sure what we gain by adopting Schuck’s argument.  The argument appears to be evidentiary, not substantive: as I read the editorial, Schuck is not claiming that it is acceptable to strip Shahzad’s citizenship because he engaged in an abhorrent act; instead, he believes that we can infer the requisite intent to renounce citizenship from the abhorrent act.  After all, Schuck acknowledges that Shahzad would have to be given a “fair opportunity to show otherwise” — to rebut the presumption of intent to renounce citizenship — before his citizenship would be taken away.  Presumably, then, all Shahzad would have to do is say, “no, I did not intend to renounce my citizenship.”  End of story.

Perhaps I’m wrong about Schuck’s argument.  Perhaps he is arguing that certain acts are so inconsistent with the idea of allegiance that the commission of one of those acts establishes an irrebuttable presumption of the intent to renounce citizenship.  If so, that argument seems to have two very significant problems…

ILA Biennial Conference in The Hague, August 15-20, 2010

by Peggy McGuinness

The International Law Association’s 2010 Biennial Conference, “De Iure Humanitatis: Peace, Justice, and International Law” takes place August 15-20 in The Hague.  Early reduced-fee registration ends tomorrow, May 15. It looks to be great a program, hosted by the Dutch Branch of ILA, with some fun side events in and around The Hague.  (You may even see a couple of the OJ regulars in attendance!)  Here is a full description via Professor John Noyes, President of the American Branch of ILA:

Peter Schuck on Revoking Citizenship in Terrorism Cases

by Kenneth Anderson

As I’ve noted before, I am not an expert in the case law on revocation or renunciation of US citizenship, but I wanted to flag Professor Peter Schuck in the Wall Street Journal today arguing that it is indeed possible to revoke Faisal Shahzad’s citizenship.  Behind the subscriber wall, here.  A bit from the middle of the piece:

Revoking the citizenship of Awlaki and the Fort Hood killer, both U.S.-born, presents a more complicated constitutional question. Under a 1940 statute that is still in force, the government can de-nationalize citizens who serve in a foreign military; vote in a foreign election; swear allegiance to, hold office, or naturalize in a foreign state; expressly renounce their citizenship before certain U.S. officials; or conspire to make war against the nation.

But a 1967 Supreme Court decision, Afroyim v. Rusk, held that Congress cannot revoke citizenship without the citizen’s consent. Thus, in the case of the Times Square bomber, the government would have to prove that when he committed any of the actions listed in the statute, he intended to relinquish his citizenship.

In a 1980 case, Vance v. Terrazas, the Court reaffirmed this “intent to relinquish” requirement, but allowed the government to prove it by a mere “preponderance of the evidence.” Afroyim andTerrazas, which were both 5-4 decisions, accepted that a jury might infer intent to relinquish citizenship based on conduct—that is, even if the individual didn’t utter the magic words “I intend to renounce my citizenship”—so long as he had fair opportunity to show otherwise.

The question, then, is which acts might prove the specific intent demanded by these two rulings. In Shahzad’s case, if the government can show that he placed a bomb in Times Square at the behest of a terrorist group seeking to kill people simply because they are Americans, I believe that it should easily suffice. Unlike the citizen’s act in Afroyim—voting in an Israeli election—the Times Square plot precludes any notion of allegiance.

Loss of citizenship is an extreme sanction. But as the Court has emphasized, it is a civil, not a criminal one.

I don’t pretend to a view on the Supreme Court precedents, let alone how they have been applied in practical situations.  For reasons unrelated to this debate, I do not see that there is any problem targeting Al-Awlaki, going to Julian’s post below, but that is a different issue from revocation of citizenship.

The NYT Belatedly Notices Targeted Killing Debate

by Julian Ku

The NYT’s Scott Shane notes that “The Obama administration’s decision to authorize the killing by the Central Intelligence Agency of a terrorism suspect who is an American citizen has set off a debate over the legal and political limits of drone missile strikes….”  Uh, duh.. There was even a whole congressional subcommittee hearing about it, and lots of blogging! (see related posts below)  Still, the article does provide a more detail on the Obama Administration’s attitude toward U.S. citizens it has targeted for killings:

Administration officials take the view that no legal or constitutional rights can protect Mr. Awlaki, a charismatic preacher who has said it is a religious duty to attack the United States and who the C.I.A. believes is actively plotting violence. The attempted bombing of Times Square on May 1 is the latest of more than a dozen terrorist plots in the West that investigators believe were inspired in part by Mr. Awlaki’s rhetoric.

“American citizenship doesn’t give you carte blanche to wage war against your own country,” said a counterterrorism official who discussed the classified program on condition of anonymity. “If you cast your lot with its enemies, you may well share their fate.”

This is tough talk that wouldn’t have been out of place in the much-maligned Bush administration.  But as we’ve noted, the domestic and international law relevant here is immensely complicated and hardly clear cut.  I agree that U.S. citizenship doesn’t give you carte blanche to wage war.  But, as one critic quoted in the article points out, it does protect you from being wiretapped without a warrant or interrogated without your Miranda rights.  So isn’t it weird that the U.S. Constitution doesn’t give you due process before you die in a drone attack, away from any conventional battlefield that is launched by an non-privileged combatant?

Pre-Order Polakow-Suransky’s New Book on Israel and South Africa

by Kevin Jon Heller

I was going to wait until the book — entitled The Unspoken Alliance: Israel’s Secret Relationship with Apartheid South Africa — came out to mention it, but now seems like an opportune time.  You can pre-order the book from Amazon here, and here is the description:

A revealing account of how Israel’s booming arms industry and apartheid South Africa’s international isolation led to a secretive military partnership between two seemingly unlikely allies.

Prior to the Six-Day War, Israel was a darling of the international left: socialist idealists like David Ben-Gurion and Golda Meir vocally opposed apartheid and built alliances with black leaders in newly independent African nations. South Africa, for its part, was controlled by a regime of Afrikaner nationalists who had enthusiastically supported Hitler during World War II.

But after Israel’s occupation of Palestinian territories in 1967, the country found itself estranged from former allies and threatened anew by old enemies. As both states became international pariahs, their covert military relationship blossomed: they exchanged billions of dollars’ worth of extremely sensitive material, including nuclear technology, boosting Israel’s sagging economy and strengthening the beleaguered apartheid regime.

By the time the right-wing Likud Party came to power in 1977, Israel had all but abandoned the moralism of its founders in favor of close and lucrative ties with South Africa. For nearly twenty years, Israel denied these ties, claiming that it opposed apartheid on moral and religious grounds even as it secretly supplied the arsenal of a white supremacist government.

Sasha Polakow-Suransky reveals the previously classified details of countless arms deals conducted behind the backs of Israel’s own diplomatic corps and in violation of a United Nations arms embargo. Based on extensive archival research and exclusive interviews with former generals and high-level government officials in both countries, The Unspoken Alliance tells a troubling story of Cold War paranoia, moral compromises, and Israel’s estrangement from the left. It is essential reading for anyone interested in Israel’s history and its future.

And here are some early reviews:

“In this path-breaking book, Polakow-Suransky traces the evolution of the alliance between Israel and apartheid South Africa, from its murky beginning to its inglorious end, following the transition to majority rule. It is based on the most meticulous archival research supplemented by remarkably revealing interviews with decision-makers in several countries. Wise, elegantly written, and strikingly fair-minded, it deserves the widest possible readership.”
—Avi Shlaim, author of The Iron Wall: Israel and the Arab World

“Interesting, unique, and telling. Its lesson is very clear: doing the right thing may also be the best political option. It also tells us that sometimes we need others to save us from ourselves.”
—Yossi Beilin, justice minister of Israel, 1999-2001

“A major, long-overdue study of the rise and demise of one of the most intriguing alliances of our time. Polakow-Suransky has written a masterfully researched history that reads like a thriller unraveling the secrets of an alliance between two embattled societies under siege. Woven into the author’s fascinating narrative lies the disturbing debate about the degree of moral and political congruence that might have existed between the two allies—Israel’s political and defense establishment on the one hand and the Afrikaner ‘master race’ on the other.”
—Shlomo Ben-Ami, foreign minister of Israel, 2000-2001

“An intensely observed, eye-opening book.”
—Kirkus Reviews

I”m guessing the book won’t be at the top of Dershowitz’s wish list.

Church and State Recommends Rejection of Ugandan Anti-Gay Bill

by Roger Alford

Last week a special committee organized by Ugandan President Yoweri Museveni has recommended that virtually every clause of the anti-gay bill drafted by Uganda backbencher David Bahati be rejected. As reported here,

The recommendations … come close to dismissing Mr Bahati’s draft legislation. The committee, put together to advise the government after Mr Bahati’s draft legislation left Uganda condemned by sections of the international community, looked deep into the language, tone and relevance of the draft legislation, dissecting every clause to determine its usefulness…. The result left the draft legislation almost bare, as nearly all of the clauses were found either redundant, repetitive of existing laws, or even useless…. It was hoped … that the Cabinet committee would make certain amendments to the draft law. As it turned out, the committee critiqued Mr Bahati’s work so deeply that no amendments were proposed.

It is expected that the Parliament will now reject the bill. The head of the special committee, Adolf Mwesige, said “he expected the full Parliament to vote down the bill within weeks.” Reportedly President Museveni also has promised to veto the bill if presented to him by Parliament. As with the United States, it would require a two-thirds vote to override his veto, which appears unlikely.

Several months earlier, the two largest conservative segments of the Ugandan Christian community–the Catholics and the Anglicans–likewise condemned the bill. In January, the Ugandan Catholic Church condemned the bill. As reported here:

The titular head of the Catholic Church in Uganda has weighed in on the proposed anti-homosexuality law, saying he rejects it because it is “at odds with the core values” of Christians. But while Kampala Archbishop Cyprian Lwanga’s opposition to the 2009 Anti-Homosexuality Bill is based on compassion, the cleric retains the view that homosexuality is immoral and violates God’s will. “The Bible says homosexuality is strictly forbidden,” Dr Lwanga said in a statement made public yesterday. “However, the Church equally teaches the Christian message of respect, compassion, and sensitivity…. [I]n a country where homosexuality is taboo and where many preachers have condemned gays, Dr Lwanga’s comments will be seen as unlikely opposition to a piece of legislation that proposes death or life imprisonment for gay people.

Then in February the conservative Ugandan Anglican church weighed in and also condemned the bill:

The country’s Anglicans yesterday added their voice against the Anti-Homosexuality Bill. Like the Catholics before them, the Church of Uganda officially rejected the Bill…. [T]he latest foray by Church of Uganda, which until last year played host and spiritual home for breakaway conformist American clerics/Anglicans disenchanted over acceptance of homosexuals in the Episcopal Church, deprives MP Bahati of the second biggest bloc after the Catholic Church here earlier raised objections to capital punishment embedded in the Bill.

Without the support of leading Christian denominations in Uganda or the Museveni Administration, it appears that the proposed legislation is dead. As I posted in January, “The goal of scrapping the draconian bill of a Ugandan backbencher should be easily achievable. But what is the best means to that end?” It appears that a combination of external and internal pressure from conservative and liberal groups has provided the appropriate pressure to kill the bill.

A Bit of Context About Goldstone

by Kevin Jon Heller

I will write in more detail when I have a bit more time, but I can’t let Dershowitz’s ridiculously slanted and ahistorical attack on Richard Goldstone pass without comment.  Sasha Polakow-Suransky, a Senior Editor at Foreign Affairs who is an expert on Israel-South Africa relations, has responded to the allegations made in the Yediot Ahronoth story Dershowitz cites, allegations that Polakow-Suransky points out are common knowledge in South Africa.  (Apparently, Dershowitz’s definition of “secret” is something that he doesn’t know about.)  Here is a snippet from the post that — responding to Jeffrey Goldberg and Jonathan Chait — puts Goldstone’s apartheid-era actions into context and notes Israel’s own rather sordid past concerning apartheid:

After all, Israel was the most significant arms supplier to that regime throughout the 1980s and served as a lifeline for the apartheid government during a period when Pretoria faced growing international condemnation and heightened domestic unrest (i.e. protests by 80 percent of the population demanding their democratic rights).

Anyone who served in the Israeli army during the late 1980s, as Goldberg did, should be well aware of this history.

During these years, military intelligence officials from the two countries held annual intelligence-sharing conferences and South African military representatives came to the West Bank to view the anti-riot equipment the Israeli army was using against Palestinians. When foreign journalists in the West Bank encountered visiting South African military officials, the Israeli military censor was quickly ordered to hush it up. Back in South Africa, a large contingent of Israeli rocketry experts was holed up in the seaside town of Arniston helping the South African government put the finishing touches on ballistic missiles intended to carry its next generation of nuclear weapons.

Knesset Speaker Reuven Rivlin, who denounced Goldstone as “a man of double standards,” because he “sentenced black people to death” appears to have some double standards of his own. Rivlin was no doubt fully informed of Israel’s military alliance with South Africa during the 1980s, given that he served on the Foreign Affairs and Defense Committee of the 12th Knesset from 1988-1992–a position that gave him nearly unfettered access to sensitive military documents and high-level discussions of Israel’s defense doctrine. These were the peak years of arms sales to South Africa, exceeding $1.5 billion in 1988 and approximately $800 million in 1989.

In their zeal to demonize Goldstone, Chait and Goldberg miss the point that it is possible to condemn the Goldstone Report without promoting a hypocritical campaign of character assassination. To his credit, Ron Kampeas of the Capital J Blog immediately denounced this smear strategy. He noted that self-righteous Israeli propaganda replete with Nazi comparisons “exposes you to ridicule,” especially given that “Israel sold arms to, traded with, in some instances allied with Apartheid South Africa,” a point that does not seem to have occurred to Chait and Goldberg. Kampeas continued, “At the time, when pressed on the matter, Israeli diplomats always boiled it down to ‘we take whatever friends we can get.’ (And I don’t remember budding diplomat Danny Ayalon sticking his neck out to say any different.)”

There are many legitimate grounds on which to criticize the Goldstone Report, but Goldstone’s past is not one of them. Rather than examining the historical record, Goldberg and Chait relied exclusively on the Yediot article in passing judgment on Goldstone’s early career. Their posts, and a more recent one by Ron Radosh, fail to acknowledge Goldstone’s crucial role in facilitating South Africa’s transition to democracy by chairing the investigative Commission on Public Violence and Intimidation from 1991-1994. Among other things, this commission exposed the apartheid government’s links to a so-called Third Force–made up of government security and ex-security operatives seeking to derail peaceful democratic elections.

The Goldstone Commission’s revelations outraged Nelson Mandela, leading him to conclude that F.W. de Klerk’s government had organized covert death squads. (For more on this topic, read the dispatches of British journalist John Carlin, the author of the book that became the movie Invictus.) Goldstone’s work earned him Mandela’s respect and, in 1994, South Africa’s first black president appointed Goldstone to the Constitutional Court–hardly the sort of honor the great moral icon of the 20th century would have bestowed on “a man without a moral compass,” as Goldberg calls him.

Funny how Dershowitz doesn’t mention any of that.  Must have been an innocent oversight.

No, Prof. Dershowitz, Tell Us What You Really Think of Richard Goldstone

by Julian Ku

Alan Dershowitz has never been shy to express his views, but I think he may be going a bit far here in reaction to recent stories about Judge Richard Goldstone’s service to the Apartheid regime in South Africa.

Goldstone was–quite literally–a hanging judge. He imposed and affirmed death sentences for more than two dozen blacks under circumstances where whites would almost certainly have escaped the noose. And he affirmed sentences of physical torture–euphemistically called “flogging”– for other blacks. He also enforced miscegenation and other racist laws with nary a word of criticism or dissent. He was an important part of the machinery of death, torture and racial subjugation that characterized Apartheid South Africa. His robe and gavel lent an air of legitimacy to an entirely illegitimate and barbaric regime.

It is no surprise that Goldstone kept this part of his life secret from academic colleagues, friends and the general public. I recall him at the lunch and dinner tables in Cambridge describing himself as a heroic part of the struggle against Apartheid.  Now it turns out he was the ugly face of Apartheid, covering its sins and crimes with a judicial robe. How differently we would have looked at him if we knew that he had climbed the judicial ladder on whipped backs and hanged bodies.

Dershowitz then goes on:

Goldstone  is an ambitious opportunist who lacks the courage of his convictions– if he ever had any. He has always put personal advancement over principle. He is a master of rationalization and self justification. This time he has run out of excuses. He’s been exposed as a poseur who will sell his integrity for a careerist opportunity. Fortunately he now has little integrity left to sell.

Yikes!  This is way, way over the top, especially on the integrity part. I don’t think there is any evidence Goldstone tried to hide any of this.

On the other hand, buried beneath the outrage is a very good point. Goldstone, like many other white South Africans, was complicit in aspects of the Apartheid regime.  This doesn’t necessarily make him a bad person, but it is certainly a difficult, morally ambiguous situation. And many of Goldstone’s defenders are they type who wouldn’t see this as a difficult, morally ambiguous situation.  Rather, they would think of an Alien Tort Statute lawsuit.  Luckily, those folks are Judge Goldstone’s friends…

A Really, Really Bad Idea

by Kevin Jon Heller

The New York Times is reporting that Moreno-Ocampo has offered Spain’s Judge Garzon a temporary position as one of his advisors:

Spain’s well-known investigating magistrate, Baltasar Garzón who is being prosecuted in a case filed by far-right Spanish groups, has been offered a temporary post as an external adviser to the prosecutor at the International Criminal Court in The Hague, a court official there said. The judge gained an international reputation as a fearless prosecutor of cases including those on Basque and Islamist terrorism, drug traffickers and the former Chilean dictator Augusto Pinochet. Mr. Garzón was indicted last month on charges of abusing his powers. He has denied the charges.

The appointment is a horrible idea, and a great disappointment after Moreno-Ocampo’s excellent appointments of Jose Alvarez and my colleague Tim McCormack.  The charges against Garzon are transparently political, and I have no doubt that he has a wealth of knowledge and skills that, in theory, could be useful to the OTP.  But the charges are still pending and there is no denying that Garzon is a polarizing figure, so this hardly seems the most opportune time to appoint him.  Besides, the Editors of the Wall Street Journal already have a difficult enough time piecing together the various sentences in the Rome Statute that deal with jurisdiction; now they will be even more confused.

Critics always accuse Moreno-Ocampo of being too political.  If that’s the case, he’s a remarkably bad politician.

UPDATE: Dov Jacobs has similar thoughts at his excellent — if oddly named — blog, Spreading the Jam.

U.N. Special Rapporteurs Weigh in On Arizona Immigration Law; I’m Still Unimpressed

by Julian Ku

I’m sorry, but I still find the argument that the Arizona Immigration Law violates the International Convention on the Elimination of Racial Discrimination deeply unpersuasive.  The fact that five U.N. special rapporteurs on human rights have weighed in here with the same analysis as Human Rights Watch doesn’t convince me of much, other than that I am even less impressed with U.N. special rapporteurs than I was before.  I understand that there are policy concerns here, and as someone who would probably look like an immigrant to most local police officers, I don’t relish being carded all the time. And yes, I get it that there are some serious national preemption arguments here.  So this law may be a bad idea.

But there are good international law arguments, and then there are just sad and pathetic pleas for relevance.  The attempt by international human rights law experts to get in on the backlash against the Arizona law is much closer to the latter.

Kagan to World: Don’t Ask Me Anything Revealing!

by Kevin Jon Heller

Roger blogged below about how Kagan called in 1995 for substantive questioning of Supreme Court nominees.  Just in time to avoid being asked such questions herself, she’s changed her mind:

The White House Monday said that Supreme Court nominee won’t follow her own advice from 1995 in answering questions on specific legal cases or issues, supporting Kagan’s flip flop on the issue that she first made a year ago.

Kagan wrote in 1995 that the confirmation process had become a “charade” because nominees were not answering direct questions, and said they should have to do so.

But during a briefing with reporters in the White House, Ron Klain, a top legal adviser to Vice President Joe Biden who played a key role in helping President Obama choose Kagan, said that she no longer holds this opinion.

Klain pointed to Kagan’s testimony during confirmation hearings for her current job as solicitor general, the government’s top lawyer.

“She was asked about it and said that both the passage of time and her perspective as a nominee had given her a new appreciation and respect for the difficulty of being a nominee, and the need to answer questions carefully,” Klain said, prompting laughter from a few reporters.

What a pathetic charade on Obama’s part.  Appoint someone who has no paper trail.  Have her “change her mind” about being asked anything to offset said lack of paper trail.  Ask progressives to trust you that you know what you’re doing.

I, for one, don’t trust Obama in the least.  I’m obviously disappointed that he is foregoing a once-in-a-generation opportunity to place a genuine progressive on the Court in favor of nominating someone that the right thinks is the least-bad option.  But I’m not surprised.  Will Kagan move the Court to the right on national-security issues?  It certainly seems that way.  Is that a bad thing from Obama’s perspective?  Not a chance.  He will almost certainly be President for another six years; do you think he wants a Justice who will follow in Stevens’ footsteps and limit his ability to detain and kill people?

Do I even need to answer that question?

Elena Kagan on International Law (Very Short Post)

by Peter Spiro

It doesn’t look like she’s written anything even remotely related to international law (it is surprising how little she’s written on anything, for an academic).

On the now-standard question of what role IL should have in constitutional interpretation, we have this out-on-a-limb answer from her confirmation as Solicitor General:

I do not believe that international law (assuming it has not been incorporated into domestic federal law) can prevent federal and state governments from broadening the application of the death penalty should they wish to do so.  In a case like Kennedy v. Louisiana, 128 S. Ct. 2641 (2008) [finding use of the death penalty unconstitutional for rape], the appropriate question is whether the Eighth Amendment of the U.S. Constitution forbids the application of the death penalty to a particular kind of crime, not whether international law does so.

Correct response!  Expect more of the same come this summer.  That will make it four nominees in a row that will have disclaimed the relevance of IL to constitutional interpretation.  It becomes an interesting case study in how the nomination process and hearings check the Court.  I doubt either Kagan or Sonia Sotomayor (“I will not use foreign law to interpret the Constitution”) would dare so much as drop a footnote to international authorities in defining constitutional rights for some time to come.

Kagan Invites Bork-Style Confirmation Hearing

by Roger Alford

In 1995, while Elena Kagan was an Assistant Professor of Law at the University of Chicago, she wrote a review about Stephen Carter’s book, The Confirmation Mess. Carter’s book, of course, was highly critical of the confirmation process and identified numerous ailments, including most famously, the handling of the confirmation hearing of Robert Bork.

Kagan begs to differ. The Bork confirmation hearing did not create a mess, she argues, it served as a model. There are few questions that are inappropriate. The President and the Senate have a constitutional duty and they should take it more seriously. The approaches taken by Justices Breyer and Ginsburg in their confirmation hearings were seriously flawed. The bottom line, she argues, is that the approach taken by the Senate with Robert Bork was fair game and that future nominees should be required to answer more searching and substantive questions:

The real confirmation mess, in short, is the absence of the mess that Carter describes. The problem is not that the Bork hearings have set a pattern for all others; the problem is that they have not. And the problem is not that senators engage in substantive discussion with Supreme Court nominees; the problem is that they do not. Senators effectively have accepted the limits on inquiry Carter proposes; the challenge now is to overthrow them.

She further argues that nominees should not be given the easy pass that Justices Ginsburg and Breyer received from the Senate….

Bashir Wants INTERPOL to Arrest Rebel Leader

by Kevin Jon Heller

There’s hypocrisy, and then there’s Omar al-Bashir:

Sudan’s justice minister has asked Interpol to arrest the leader of Darfur’s most powerful rebel group, state media said on Monday, a step likely to dash hopes of progress in a faltering peace process.


The Sudanese Media Centre quoted Abdel Basit Sabderat as saying the rebel Justice and Equality Movement (JEM) leader, Khalil Ibrahim, should stand trial for an unprecedented May 2008 attack on the capital Khartoum, which killed around 200 people.

“The relevant authorities of Interpol have been requested to arrest him wherever he is so that he may face trial … and be handed over to the Sudanese authorities,” SMC quoted Mr. Sabderat as saying.

He urged “all concerned states not to shelter him and to extradite him to face trial”, SMC added. Mr. Sabderat was not immediately available to confirm the report.

Mr. Ibrahim has left Qatar-based peace talks and is visiting Cairo, an ally of Khartoum. JEM officials declined to comment.

SMC said Mr. Ibrahim was accused of some 14 charges including murder and waging war against the state.

Khartoum’s move against Mr. Ibrahim is likely to end progress in the peace talks, prompted by a rapprochement between Sudan and neighbour Chad, who had hosted Darfur’s rebels.

“This means peace process over,” said an international source familiar with the Darfur file who declined to be named.

Right-wing critics love to complain that the ICC’s arrest warrant for Bashir undermines the peace process in Darfur.  Now that Bashir himself has made clear he is much more interested in “justice” — such as it is in the Sudan — than peace, it will be interesting to see if they continue to make that argument.

EJIL Talk! Dissects Ken Anderson’s “The Rise of International Criminal Law: Intended and Unintended Consequences”

by Julian Ku

I wanted to point our readers to a terrific discussion at EJIL Talk! on our own Ken Anderson’s recent article “The Rise of International Criminal Law: Intended and Unintended Consequences”.  Ken’s article “offers a high-altitude, high-speed look at the effects of international criminal law on other parts of public international law and organizations.”  EJIL Talk! has solicited two very interesting responses so far, one from Prof. Brad Roth and the other from Amrita Kapur.  All three wrestle with a topic I’m also interested in: are there negative externalities, so to speak, from the ubiquity of international criminal law? I think there are, as Jide Nzelibe and I argued here and which I continue to maintain here.  Definitely worth checking out.

Buy that Woman a Motor-Home!

by Kevin Jon Heller

Not surprisingly, Ed Whelan breaks from the post and takes the lead in the most-ridiculous-criticism-of-Elena-Kagan derby, claiming that not learning to drive until her late 20s…

… nicely captures Elena Kagan’s remoteness from the lives of most Americans.

Where did Kagan grow up?  Kansas, where her gold-plated limo ferried her to and from school while hordes of servants threw rose petals in her path?

Actually, New York City.  Where it’s unheard of for someone not to learn to drive.

P.S. Whelan’s “response” to his critics is even more amusing.  Check it out.

Upcoming Conference: “International Law and the Israeli-Arab Dispute”

by Julian Ku

Is there anything new or useful to say about “International Law and the Israeli-Arab Dispute”?  Well, a number of scholars (including Ken, Roger, and myself) will try to come up with something next Monday, May 17, during a conference at Northwestern University School of Law.  This is one of the few subjects intersecting international law where there is way too much writing, but not enough good writing. The agenda is below. Please feel free to drop by if you are in the area.



MAY 17, 2010

8-8:30 Breakfast

8:30-8:40 Welcome

Samuel Estreicher (NYU)

Eugene Kontorovich (Northwestern)

Larry Brown (CAMERA)

8:40-10 Occupation and Settlement

Avi Bell (Bar-Ilan, San Diego) Legality of Settlements and Settlers

Eugene Kontorovich (Northwestern) The Reality of Conquest: The Fate of Transferees in Occupied                                                                       Territory under International Law

10:15-12 Statehood and Refugees

Arthur Kent (Fordham) Myth of Right of Return

Julian Ku (Hofstra) Evolving Notions of Statehood

Jared Wessel (Skadden Arps) Collective Waiver of Right of Return

12-12:30 Universal Jurisdiction

David Moore (Brigham Young) Israel and the Exercise of Universal


12:45-2 Luncheon Discussion

Facilitator: Samuel Estreicher (NYU) The New Diplomacy of the Obama Administration

1:15-2:30 Use of Force

Kenneth Anderson (American) Proportionality in the Law and Ethics of War

Samuel Estreicher (NYU) Privileging Asymmetric Warfare

2:30-5 Issues of Factfinding and Bias

Roger Alford (Pepperdine) Legality of Arab Boycott of Israel

Jide Nzelibe (Northwestern) Provocateurs and Marginal Offenders

Jeremy Rabkin (George Mason) International Reponses to Civilian Casualties in Conflicts: A                                                                         Comparative Analysis

Nicholas Rostow (SUNY) The Goldstone Report

Ruth Wedgwood (Johns Hopkins) Facfinding by International Organizations

5-6 Q&A

Here Comes Associate Justice Elena Kagan; Sorry, Judge Wood, There is Always the ICJ

by Julian Ku

It’s a done deal:  President Obama will nominate U.S. Solicitor General Elena Kagan to the U.S. Supreme Court tomorrow.  Kagan will be the first nominee for the Court since the 1970s who has no judicial experience, although I doubt this will be a problem for her (it may even be an asset).  As Kevin has already noted, Kagan will probably draw fire from the left since she has taken, as Solicitor General, some relatively aggressive stands on matters relating to executive powers in wartime.  Indeed, as the Obama Administration keeps inching toward the Bush Administration’s approach on things (detentions, military commissions, wiretapping, targeted killings, and now, revising Miranda), Kagan may actually shift the court slightly to the right on these questions (I’m guessing she’s most liberal on social issues).  Kagan will almost certainly be confirmed. The only question will be by how many votes.

On the plus side, Judge Diane Wood is now free to consider that other great judicial job opening this spring: member of the International Court of Justice.  Wood is more than qualified for the ICJ, and would be the first U.S. appellate court judge to serve on the ICJ, I believe.  If she would accept such a nomination, it would be great for the ICJ since it would (no offense to past members of the ICJ) immeasureably raise its profile and prestige within the U.S. legal world (then again, this may not be a good thing).  Having been passed over twice for the U.S. Supreme Court, perhaps she would be open to something new?

Russians Let Go of Pirates; Blame Flaws in International Law

by Julian Ku

Last week, Russia announced with some fanfare that it had captured several Somali pirates who had attacked a Russian-flagged vessel.  It had also announced that (like the U.S.), these pirates would be brought back to Russia for trial.  And then yesterday, Russia announced…that it had let those same pirates go.

MOSCOW (AP) — The pirates seized by a Russian warship off the coast of Somalia have been released because of “imperfections” in international law, the Defense Ministry said Friday, a claim that sparked skepticism — and even suspicion the pirates might have been killed.

Authorities initially said the pirates would be brought to Russia to face criminal charges for hijacking a Russian oil tanker. But Defense Ministry spokesman Col. Alexei Kuznetsov told The Associated Press on Friday that the pirates had been released.

I am the first to admit there are legal hassles in prosecuting pirates, but I am baffled as to what legal flaws would have required Russia to release these alleged pirates.  Russia plainly has the power to punish here. I can only come up with nefarious theories: (1) they killed the pirates already; (2) they mistreated them in some serious way.  Something just doesn’t smell right here.

Chevron’s Discovery of Crude Outtakes

by Roger Alford

Yesterday a federal court in New York granted Chevron’s request for discovery of outtakes from the 2009 documentary Crude about the multi-billion dollar litigation in Ecuador. Chevron’s request was pursuant to 28 U.S.C. 1782, which authorizes a judge in the United States to order discovery of evidence to be used in proceedings before a foreign tribunal.

As reported here, Chevron’s lawyer, Randy Mastro, argued that over 600 hours of film that was left on the editing room floor will incriminate the plaintiffs’ lawyers and show collusion between the Ecuadorian judge, the court-appointed expert, the Ecuadorian government and plaintiffs. “We’re trying to show in Ecuador that the expert report is tainted,” Mastro said. “We have the right to show how the process was manipulated by the plaintiffs’ counsel working in concert with the government…. Outtakes are an extraordinary record in which the plaintiffs’ counsel and their clients participated.”

The Court held that an investment arbitration panel is a “foreign tribunal” within the meaning of the statute. “The arbitration here at issue is not pending in an arbitral tribunal established by private parties. It is pending in a tribunal established by an international treaty, the BIT between the United States and Ecuador.” But the court seemed to suggest that even if it was a private arbitration, it could still order discovery under Section 1782. In the wake of the Supreme Court’s 2004 decision of Intel Corp. v. Advanced Micro Devices, the court noted that several circuits have “held that international arbitral bodies under UNCITRAL rules constitute ‘foreign tribunals’ for purposes of Section 1782. This Court agrees.”

Kagan to Be Obama’s Pick for the Supreme Court?

by Kevin Jon Heller

That is what Mike Allen is reporting at Politico.  If he’s right, our next Supreme Court Justice will likely be the woman who recently argued this (h/t: my friend Steve Vladeck):

[W]ith regard to the material support statute, there are substantial (pending) issues with regard to its scope, given that the Ninth Circuit invalidated the “service,” “training,” and “expert advice or assistance” provisions on vagueness grounds.  That ruling is the subject of the Humanitarian Law Project case currently before the Supreme Court that I referenced earlier, one particular snippet of which bears mention here:

At one point, Justice Kennedy asked Solicitor General Kagan if filing an amicus brief on behalf of a designated foreign terrorist organization would constitute “service” under 2339B, and thereby subject the brief’s author to criminal prosecution [see pg. 47 of the transcript]. General Kagan’s answer, to perhaps everyone’s surprise, was “yes.” Specifically, as she put it, “to the extent that a lawyer drafts an amicus brief for the [designated groups], . . . then that indeed that would be prohibited.”

Can we finally stop pretending that there is anything even remotely progressive about Obama, at least insofar as national security is concerned?

Ian Hurd Responds to Michael Glennon on ICC and Crime of Aggression

by Kenneth Anderson

Ian Hurd, the distinguished scholar of international organizations (e.g., After Anarchy) at Northwestern University, has posted to SSRN a short response to an article much-discussed here at OJ, Michael Glennon, “The Blank Prose Crime of Aggression.”  Professor Hurd’s response is titled, “How Not to Argue Against the Crime of Aggression.” It is not long, elegantly argued and usefully systematic, and I would suggest is a model of what scholarly disagreement should look like.  My own views are in Mike Glennon’s turf, and I found that Professor Hurd’s short essay helped me understand on exactly what grounds I agree with Mike on this.  This conversation (including that over the recent Council on Foreign Relations report on the ICC) has generated somewhat more heat than light, in my estimation, and I regard Professor Hurd’s contribution as exceptionally thoughtful and highly salutary.

Breaking News: Thomas Buergenthal Will Step Down from ICJ

by Julian Ku

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Judge Thomas Buergenthal

Sure, some guy named John Paul Stevens is retiring from the U.S. Supreme Court, but there is another big judicial resignation this spring to note. Thomas Buergenthal, the U.S. member of the International Court of Justice, has announced that he will not finish out his term on the court. I am breaking some news here because the I.C.J. has not formally acknowledged his pending resignation. Nor have I seen any news reports about it. But I am informed by a very reliable source that Judge Buergenthal is stepping down early (his term expires in 2015) and that, indeed, the search for his successor is well underway. (I’m sure many readers of this blog knew about this way before I did).

I will leave for another day, and to more knowledgeable folks, the evaluations of Judge Buergenthal’s service on the ICJ. Let me get down to what we are all really interested in: who will be his replacement?

Technically, there is no U.S. seat on the I.C.J., nor does the U.S. government play a formal role in the nomination of members of the I.C.J. But through complex machinations (and long tradition), each permanent member of the Security Council always gets a judge on the Court. Hence, there is always a U.S. judge (Some background from the 2006 selections here).

So how will the U.S. judge be chosen? Well, it’s not exactly a transparent process. There is something called the U.S. National Group, which by tradition is chaired by the State Department’s Legal Advisor and often composed of previous Legal Advisors. That Group is instructed, by the ICJ’s Statute, to “consult its highest court of justice, its legal faculties and schools of law, and its national academies and national sections of international academies devoted to the study of law” for recommendations on whom to nominate.

I don’t know whether the National Group actually asks the U.S. Supreme Court for advice although, I bet it does. And I don’t know whether they ask all 183 U.S. law faculties. I doubt they do, because that would probably be a waste of time. I do know that they consult the American Society of International Law, and that the U.S. judge is almost always a very active and devoted member of ASIL. So I imagine that ASIL’s influence is quite strong. Still, the key group here is the National Group. I think that they are the real decisionmaker.

Here is the ICJ Statute’s standards for members of the Court. They should be “persons of high moral character, who possess the qualifications required in their respective countries for appointment to the highest judicial offices, or are jurisconsults of recognized competence in international law.” I know the National Group is still soliciting input on the nomination (at least until next week).

It’s true that, shockingly, the ICJ Statute does not require National Groups to consult “leading international law weblogs”. But never underestimate the power of the Internet. There is a good chance that at least one member of the U.S. National Group will read this post and the comments to it. (I can’t guarantee that person will actually take this post or comments seriously, but who knows?) So please refrain from snarky comments, and use the comments here to propose serious candidates for the Court (For example, Michael Reisman is a serious candidate. Diane Wood is a serious candidate, but I hear she has some other job in mind. Julian Ku? Not so much.). At the same time, it would be useful to think outside the box.  Please keep any comments to less than 100 words.

Nominate away!

Questions Concerning the White House Talking Points on Dean Kagan’s Hiring

by Kevin Jon Heller

As most people probably know, Duke’s Guy-Uriel Charles wrote a devastating blog post criticizing the lack of diversity in Harvard Law School hiring while Elena Kagan was Dean.  (Short version: 28 of 29 were white, one was asian; 23 of the 29 were men.)  The White House has now pushed back against the post by releasing what strikes me as a rather pathetic set of talking points — look, non-white student enrollment has gone up 2%! — concerning Dean Kagan’s tenure.  I’m sure Guy-Uriel and others will analyze the talking points better than I; I simply want to raise a few questions here.  One of the points the White House makes is that Guy-Uriel’s statistics are “misleading,” because “[t]hey do not account for a very critical part of the picture – the numbers of offers Kagan made to minority and women scholars. The numbers Charles cites reflect the yield – i.e., how many professors accepted Harvard’s offer to join the faculty.”  The document then provides a chart indicating that each year Harvard’s Lateral Appointments Committee made no less than 13% of its offers to non-whites and no less than 27% of its offers to women. Impressive, huh?

Well, perhaps not.  The chart is entitled “Total Visiting Professor Offers Approved by the Lateral Appointments Committee to Minorities and Women.”  At most schools — if not all — there is a fundamental difference between an offer to visit the school and an offer to “join the faculty.”  Indeed, although some visiting offers are “look-see visits” that can turn into permanent positions, others are simply “podium visits” that do not result in a vote on whether to hire the visitor.

So here are my questions for the Harvard folks out there.  First, does the chart reflect actual offers to join the faculty or simply offers to spend a semester at Harvard? (It has to be the latter.  I seriously doubt Harvard made 189 permanent offers between 2005 and 2008!)  Second, if it is the latter, how many of those visiting offers were “look-see” visits, how many were “podium” visits, and what was the racial/gender breakdown between the two?  Third, how many of the “look-see” visits resulted in a non-white and/or female visitor being offered a permanent position?

P.S. In the unlikely event that the numbers are accurate, shouldn’t we then be asking why so few non-white and women professors are willing to accept a permanent offer from one of the world’s most prestigious law schools?

Michael Kearney on the Palestinian Declaration

by Kevin Jon Heller

Michael Kearney at the University of York has written a long and interesting response to Julian’s post, which I have posted below to make sure people see it.  I’m far from expert about the law of statehood, so I’m reluctant to comment on the international-law debate.  I continue to believe, though, that accepting the Palestinian declaration would be disastrous for the ICC’s legitimacy.  I’m all for the ICC prosecuting American crimes in Afghanistan and British crimes in Iraq, but it is impossible to ignore the fact that such prosecutions would be extremely controversial even though they raise no significant jurisdictional problems.  It thus strikes me as extremely unwise to prosecute Israeli officials and soldiers — which would be equally if not more controversial — pursuant to a jurisdictional argument that is, at best, extremely close.  I would take issue, then, with Michael’s conclusion that “[t]o decide otherwise would not only permit continued impunity to reign but would be a manifestly unreasonable interpretation of the Rome Statute.”  There is nothing unreasonable about the critics’ position, even if we believe (and I’m not sure I do) that it’s ultimately incorrect.

Moreover, I think it’s critically important to question the kind of teleological reasoning that Michael seems to embrace concerning the interpretation of the Rome Statute.  The object and purpose of the Statute is not to combat impunity always and everywhere; its object and purpose is to combat impunity in situations over which the ICC has jurisdiction.  It thus seems illegitimate to me to argue that we can ignore seemingly clear provisions of the Rome Statute simply because the ICC’s ability to combat impunity would be thereby enhanced. Perhaps Article 12 is less clear than it appears; I certainly acknowledge that possibility.  Even if it is, though, we should not take into account ends-driven considerations such as “what will combat impunity better” when trying to decide what Article 12 means.

With that, on to Michael’s excellent comment:

As one of the authors of Al-Haq’s position paper on this question I would like to thank you for highlighting the OTP’s summary of submissions and promoting the debate. Since you are one of the signatories to David Davenport’s paper, I would like to take issue with some of the key points made therein. I won’t at this stage go into the other papers since this will already be a fairly long response.

As Davenport’s paper accepts, there is no universally accepted definition of statehood under international law (p8). Statehood therefore, is a question of political recognition and of power. Neither of these considerations can be accepted as the sole arbiters as to whether a people are to be protected by or excluded from the rule of international law.

Rather than follow the political question – that of whether Palestine is an actual state on a par with states such as Switzerland or Syria – Al-Haq has rooted its consideration of the matter strictly in international law. Al-Haq’s paper considers whether the PA exercises jurisdiction over the crimes set forth in the Rome Statute of the ICC, and whether the meaning of ‘state’ for the purposes of the Rome Statute can properly be interpreted to include an entity such as Palestine…

Lieberman “Terrorist Expatriation Act”- Constitutional But Meaningless

by Peter Spiro

Joe Lieberman has just rolled out a bill (text here) which would strip individuals associated with foreign terrorist groups of their US citizenship.

He’s been playing this as if it were a minor statutory fix.  It’s true, as he’s been stressing, that current law terminates citizenship for “entering, or serving in, the armed forces of a foreign state if (a) such armed forces are engaged in hostilities against the United States, or (b) such persons serves as a commissioned or non-commissioned officer.”  8 U.S.C. 1481.  But that applies only where such service is undertaken “with the intention of relinquishing United States nationality.”

That’s not just some statutory nicety.  The Supreme Court has found it a constitutional necessity.  Afroyim v. Rusk (1967) is the lead case, in which the Court found unconstitutional expatriation for the act of voting in a foreign political election.  In Vance v. Terrazas (1968), the Court found that

we are confident that it would be inconsistent with Afroyim to treat the expatriating acts specified in § 1481(a) as the equivalent of or as conclusive evidence of the indispensable voluntary assent of the citizen. “Of course,” any of the specified acts “may be highly persuasive evidence in the particular case of a purpose to abandon citizenship.”  But the trier of fact must in the end conclude that the citizen not only voluntarily committed the expatriating act prescribed in the statute, but also intended to relinquish his citizenship.

Now, these rulings do allow the government to terminate citizenship on the basis of conduct alone, without a formal renunciation before a consular officer, so long as that conduct reflects a specific intent to relinquish citizenship.  It was (consistent with Terrazas) long presumed that naturalization in another state reflected a desire on the part of individual to shed his US citizenship.  That’s no longer the case.  As a matter of administrative practice, the State Department since the 1990 has presumed individuals intend to retain their citizenship except where they expressly renounce before a US consular official.  This is true even if the oath of naturalization in another country includes an express renunciation of US citizenship.  Service in a foreign military?  Not a problem, Lieberman’s implication to the contrary.

So Lieberman’s proposal could reverse that practice, and the State Department would once again have to contend with with Terrazas.  Intent to relinquish would be pretty hard to establish, Shahzad’s case included.  (About the only case that would be a slam-dunk for the State Department would be this one: a guy who shreds his passport on YouTube.)  That’s the first way in which it would be ineffective: you just end up with another layer of litigation, about the last thing that anti-terror policies need after almost a decade of up-the-courts, down-the-courts delay.

And all for what, exactly?  Citizenship makes a difference only with respect to a small slice of one anti-terror policies.  By statute, the use of military commissions can only be used in the prosecution of noncitizens.  Under Verdugo, nonresident noncitizens don’t enjoy Fourth Amendment protections.  But remember what citizenship doesn’t protect you against: even Obama has authorized the targeted killing of citizens abroad, and Hamdi doesn’t mandate full due process for citizen detainees.

Lieberman and cosponsors try to frame this as a matter of prevention, depriving terrorists of the valuable tool of a US passport.  This is nonsense.  Anyone visibly affiliated with a terror group is already going to be on all sorts of no-fly and surveillance lists before that affiliation would warrant proceeding with expatriation.  A passport isn’t much of a weapon then.

Not even the Bush Administration went in this direction.  John Walker Lindh fought with the Taliban, a foreign military engaged in hostilities against the U.S.; DOJ considered the expatriation option, but didn’t pursue it.  Ditto for Hamdi himself (he ended up voluntarily relinquishing citizenship as part of an agreement leading to his release).  At least one draft of a draft Patriot Act sequel included provision similar to Lieberman’s that went nowhere.

I don’t expect this to become law, and if it does, it won’t be put to much work. This is more anti-terror showboating than anything else.

Can the ICC Prosecutor Investigate Gaza? ICC Prosecutor Opens the Debate

by Julian Ku

Last year, the Palestinian National Authority filed a declaration accepting the jurisdiction of the International Criminal Court.  This declaration is controversial, to say the least, because it could potentially give the ICC jurisdiction over Israeli military forces operating in Gaza or the West Bank.  Today, the ICC released a summary of the submissions it has received on whether the Palestinian’s declaration should be accepted (Full list after the jump).  Of particular note: Professor John Quigley’s strong (but to me still unpersuasive) argument in favor of Palestine Statehood and David Davenport’s measured and careful recommendation that the ICC avoid delving into the Palestinian statehood morass and reject the Palestinian declaration (Ken Anderson and I, along with several other scholars, signed on to this submission).  Weirdly, the one document missing appears to be from the Palestinian National Authority itself.  In any event, I would be very surprised if the ICC sided with Prof. Quigley, both for legal and policy reasons.

DeGirolami on Banning the Burqa

by Chris Borgen

My colleague Marc DeGirolami has a guest post over at PrawfsBlawg reacting to an op-ed in today’s New York Times by Jean-François Copé, the the majority leader of the French National Assembly, in which Copé defends banning the burqa and the niqab. While Marc sees that the argument that the burqa runs counter to Western culture “is not without considerable force” (as he put it in a response to a comment), he nonetheless finds that “there is the distinct odor of self-deluding dishonesty about this op-ed” and that Copé’s argument is “doubly false.” Check it out…

Trivia Question of the Day (Updated)

by Kevin Jon Heller

What’s the only modern international or internationalized criminal tribunal that either has or had universal jurisdiction?

Update: That didn’t take long.  Reader “Mark” answered correctly.  The answer is after the jump.

Looking for New and Innovative Ways to Implement U.S. Human Rights Treaties

by Julian Ku

I hadn’t been aware of this group, Human Rights at Home, which is seeking to “create a national political culture that supports and advocates for human rights.”  In fact, they have some interesting ideas of how to reform U.S. legal infrastructure to implement U.S. international human rights obligations.

  • revitalizing an Interagency Working Group on Human Rights to coordinate the efforts of the executive departments and agencies both to promote and respect human rights and to implement human rights obligations in U.S. domestic policy;
  • transforming the U.S. Commission on Civil Rights into a U.S. Commission on Civil and Human Rights, to expand its mandate to include not only civil and human rights issues, but also monitoring human rights implementation and enforcement efforts, and to make structural reforms to improve the commission’s ability to function as an independent national human rights institution;
  • ensuring meaningful government compliance with the International Convention on the Elimination of All Forms of Racial Discrimination, which the U.S. ratified in 1994; and
  • strengthening federal, state, and local government coordination in support of human rights.

I applaud creative thinking about how to implement U.S. treaty obligations.  I am most interested in the second and fourth bullet points.  The second is actually a very interesting idea, since the U.S. Commission on Civil Rights actually has relatively little direct enforcement power, but does have the power to demand information, issue reports, and generally publicize civil rights problems. It actually would be an interesting fit to add human rights to its portfolio. This elides the problem that the main treaties under its purview are non-self-executing.   The last bullet point is even more interesting. Depending on how grassroots you go, state and local governments could be a central player in international human rights implementation.  Certainly, the activists are right that their moment for this push is now.

The ATS Corporate Power Vacuum

by Roger Alford

Kudos to Northwestern’s Searle Center on Law, Regulation, and Economic Growth for a wonderful conference on ATS litigation last week. The papers by David Scheffer & Caroline Kaeb, John McGinnis & Ilya Somin, Jide Nzelibe, Michael Barsa & David Dana, Anthea Roberts, and Eugene Kontorovich were all outstanding. There are many topics worthy of retelling, but I wanted to focus on one issue that animated much of the discussion.

Not surprisingly, the topic of corporate liability featured prominently in the discussion. Corporations are quite exercised about their potential liability, and they are proving extremely sophisticated in their response.

What are the ramifications of this new wave of litigation against corporations? One would think that holding corporations liable for aiding and abetting government abuse will have a deterrent effect on future corporations. But the discussion last week seemed to suggest that an unintended consequence of this new trend may be for corporations to simply avoid certain parts of the world, leaving an ATS corporate power vacuum to be filled by competitors from China or India that do not have a U.S. nexus, do not share the same corporate values, and, shall we say, have a heightened appetite for risk.

For example, Talisman Energy has long been a favorite whipping boy for ATS litigation. But what may have gone unnoticed by most observers is that Talisman sold its investment in Sudan in 2002 to an Indian corporation, ONGC Videsh Ltd….

Gary Solis Discusses New Book at ASIL

by Kenneth Anderson

Congratulations to Gary Solis from all of us here at OJ on his new book on the law of armed conflict, which he will discuss tomorrow in DC at ASIL headquarters.  Register online to be sure you have a seat; co-sponsored with the ICRC and ASIL’s Lieber Society, and the ICRC’s Jamie Williamson and the ASIL Lieber Society’s Dick Jackson will be discussants.  I unfortunately can’t make it on account of last week of classes, but it should be a great program.  Below the fold is the official invitation.  (Also, you should consider joining ASIL, and then the Lieber Society interest group within ASIL, which is the law of armed conflict special section.)

Continue Reading…

Bashir’s Increasing International Isolation

by Kevin Jon Heller

Julian entitled a post last week “The ICC Begins to Fade in Importance in Sudan.”  Julian might want to have a talk with Bashir about that:

On the international summit circuit, no one can clear a room more quickly than Sudan’s president, Omar Hassan al-Bashir.

Leaders have maneuvered to stay out of photographs with him, dashed away from an official lunch to avoid sitting next to him and gone as far as canceling an entire international meeting to keep Mr. Bashir at bay.

The evasions are all part of the diplomatic dance that began a year ago when the International Criminal Court in The Hague issued a global arrest warrant for Mr. Bashir, citing charges of war crimes and crimes against humanity, for his role in the bloodshed in the western Darfur region of Sudan. The warrant, scoffed at by the Sudanese president, has also set off private and not-so-private scoffing at the suspect in various capitals.

The latest snub has come from Paris, which has plainly told Mr. Bashir that he is not on the guest list for the African-French summit meeting in Nice, on the French Riviera, on May 31. “Sudan is invited,” a French Foreign Ministry official said, “but President al-Bashir was asked to designate a representative.”

This followed an earlier, even stronger French rebuff. The original plan was for the gathering to be held in Sharm el Sheik, an Egyptian resort, but when Egypt’s president, Hosni Mubarak, refused to exclude Mr. Bashir, President Nicolas Sarkozy of France said he could not come, thereby sinking the meeting.


He has made a point of traveling to friendly countries, including Egypt, Mauritania, Saudi Arabia and Qatar, but he has not been to any of the 111 countries that joined the International Criminal Court, 30 of which are in Africa.

Some of those countries have warded off visits by warning him that, as court members, they are legally bound to arrest him. South Africa dissuaded him from attending last year’s inauguration of President Jacob Zuma, and he stayed away from two high-level meetings in Uganda and an African Union conference on Darfur in Nigeria. In March, he did not go to a meeting in Kenya, even though it dealt with the peace agreement between north and south Sudan. He also skipped the climate conference in Copenhagen and last fall’s meeting of the United Nations General Assembly in New York.

Other spaces have also appeared to shrink. Turkey, which is not a court member, invited Mr. Bashir to an Islamic bloc summit meeting last year, but after European Union pressure on the Turks, they quietly suggested that he stay away.

On some occasions when he has traveled, his movements have resulted in some quick dodging by his counterparts. At an international meeting in Qatar last year, President Luiz Inácio Lula da Silva of Brazil abruptly left a lunch table when Mr. Bashir arrived late, taking his designated seat next to Mr. da Silva.

At the same meeting, Colombian and Chilean officials sent word that they would not appear in an official group photograph if it included the Sudanese president. Mr. Bashir did not show up for the photo session.

Julian’s argument is, unfortunately, little more than a straw man.  No one — not even, or perhaps especially, the Office of the Prosecutor — expects Bashir to be arrested and delivered to the ICC anytime in the near future.  What we do expect is that the arrest warrant will make it increasingly difficult for Bashir to conduct Sudan’s foreign affairs, making him an ever-greater political liability for his cronies in the Sudanese government and the National Congress Party. As Marlise Simons’ excellent article indicates, that is exactly what we are beginning to see — and Bashir’s isolation will only become worse if (when) the Pre-Trial Chamber adds genocide charges to the warrant.

If Julian thinks that the ICC is fading in importance in the Sudan, it’s only because he’s not looking.

New International Organizations Blog: Eye on IOs

by Peggy McGuinness

Professor David Bosco has started a new blog focusing on international organizations, “Eye on IOs.” I like his subtitle — “A blog on the progress and pitfalls of international organizations.”  It reminds me of a chapter I wrote addressing “progress and paradox” in international security cooperation. (It is nice to have company as a moderate on questions of international institution building!)

Professor Bosco has  posted a comment on the Beth Simmons/Allison Danner study of ICC membership (“Credible Commitments”) published in the recent International Organization, in which they try to sort out the puzzle of why ICC membership is high among both peaceful “rule of law” states and conflict-prone states that lack strong rule of law. Bosco notes:

[Simmons and Danner’s] explanation is that states that have experienced recent conflict are using ICC ratification as a way of signaling (mainly to a domestic audience) their commitment to ratchet down violence by, in essence, tying their own hands:

This exposure to prosecution by an independent international institution acts as an implicit promise by governments that they will foreswear particularly heinous military options, and it endows that promise with a credibility that such governments would otherwise lack.

It’s a fascinating conclusion and their argument is well supported. But I wonder if there isn’t an alternative explanation in many cases: that states at high-risk for ICC scrutiny have chosen to “appease” the ICC by joining and, in some cases, even referring themselves to the court (as the Democratic Republic of Congo and Uganda have done) rather than “confront” it by refusing to join. After all, as these countries well know, refusing to ratify the Rome Statute doesn’t immunize them; the Security Council can always expand the ICC’s jurisdiction to cover states not party to the statute, as it has done in the case of Sudan.

Professor Bosco’s alternative explanation sounds right — perhaps more so if measured against the relatively low short-term domestic political cost for conflict-prone states for joining an untested and slow (in comparison with alternative actions that could be taken) international institution.

Check out the full blog. And welcome to the blogosphere “Eye on IOs”!

Foreign Law and the SCOTUS Front Door

by Kenneth Anderson

My Volokh Co-Conspirator John Elwood notes the reference to foreign courts, if not precisely law, in Justice Breyer’s comment on closing the SCOTUS main front door to visitors.

Australia to join the COE Cybercrime Convention

by Duncan Hollis

Australia’s government has announced that Australia will accede to the COE Cybercrime Convention (and not, as many are reporting that it will merely “sign” the Convention, which, I suppose, reflects the media’s continued inability or unwillingness to sort out the basic issues of treaty formation).  

With Australian accession, the COE Cybercrime Convention will have 27 states parties.  It remains the only cyber-specific multilateral treaty out there.  And prospects for a competitor appear (for the moment) unlikely.  Last month, U.N. talks failed to move forward on a global cybercrime treaty that Russia has been pushing, which would have different (some might say watered-down) transnational law enforcement provisions.  In contrast, parties to the COE Cybercrime Convention (which includes the United States) favor globalizing that instrument rather than starting negotiations anew on the world stage.   Thus, one might see the Australian accession as the latest salvo in the on-going fight over who should decide what rules governments will follow in defining and combatting cybercrime.  If that’s true, I think we can expect that Russia or a proxy will take a countervailing position in the near term, say for example, by renewing the push for a global treaty banning offensive cyberweapons?

Obama Makes a Funny (But Somewhat Creepy) Joke About Targeted Killings

by Julian Ku

At last night’s White House Correspondents Dinner, President Obama cracked a funny joke about his administration’s use of Predator Drones for targeted killings.  From the Politico:

— “The Jonas Brothers are here! … Sasha and Malia are huge fans but boys don’t get any ideas. I have two words for you: Predator Drones. You’ll never see it coming.”

Ha, ha, ha…er, on second thought, is it just me, or is this joke a little creepy?

Does the Arizona Immigration Law Violate the International Convention for the Elimination of Racial Discrimination?

by Julian Ku

Yes, says Human Rights Watch in this press release.   According to HRW, the new (and hotly controversial Arizona law) is in conflict  with ICERD.  I am troubled by the AZ law and think it is likely preempted by other federal law, but I am baffled as to how the AZ law could be a clear violation (or even any kind of violation) of ICERD.  Here is HRW’s argument:

Under the new law, police officers will be empowered to stop and interrogate any person whom they “reasonably suspect” might be in the United States illegally. The law includes provisions allowing Arizona residents who believe the local police are not enforcing the law vigorously enough to sue a city or town. As a result, police officers will be under pressure to make an arrest, even when in doubt, rather than risk a lawsuit, resulting in wrongful arrests and unfair enforcement, Human Rights Watch said.

While Arizona’s governor, Jan Brewer, has required training for police officers to prevent “racial profiling” – acting on the basis of racial or ethnic characteristics – police will have little to go on other than an individual’s appearance when choosing whom to stop. People of Latino descent, whether US citizens, legal residents, or undocumented persons, will be most at risk.

The Convention against Racial Discrimination requires the federal and all state and local governments to ensure that their immigration policies do not have the effect of discriminating against persons on the basis of race, color, descent, or national or ethnic origin. This includes ensuring that non-citizens enjoy equal protection and recognition before the law. The US government is prohibited from engaging in acts or the practice of racial discrimination against persons or groups of persons and must “ensure that all public authorities and public institutions, national and local, shall act in conformity with this obligation.

Emphasis added. I think this argument is very unpersuasive. Plainly, a nation has a right under ICERD to enforce its immigration laws against illegal aliens and non-citizens.  It is simply not plausible to me that ICERD requires ensuring that non-citizens enjoy equal protection.   This is stated in Article 1:2 and 1:3 of ICERD

2. This Convention shall not apply to distinctions, exclusions, restrictions or preferences made by a State Party to this Convention between citizens and non-citizens.

3. Nothing in this Convention may be interpreted as affecting in any way the legal provisions of States Parties concerning nationality, citizenship or naturalization, provided that such provisions do not discriminate against any particular nationality.

Emphasis added.  If a particular region of a country has immigrants of one race, it can’t possibly violate ICERD to enforce immigration laws against that group.   So this whole HRW claim is based on the assumption that a law that facially does not discriminate on the basis of race, and which its proponents say is not intended to discriminate on the basis of race, and which its executive officials say will not use racial profiling, is a plain violation of ICERD.

Certainly, Article 2:1:c instructs each nation to “take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists.”  But we don’t know what the effect of the AZ law will be. But given that immigration enforcement seems plainly treated as a different category under ICERD, the HRW analysis seems borderline frivolous.  The AZ law will probably be struck down, or perhaps repealed, but there is zero chance of this weak  ICERD argument being part of the analysis.

The New Republic’s Attack on Human Rights Watch

by Kevin Jon Heller

David Bernstein calls me out today for “blogging not a word” about The New Republic‘s recent attack on Human Rights Watch’s coverage of Israel.  He also claims that “HRW has not responded” and that “it’s almost as if ‘headquarters’ has sent out word to ignore the TNR piece in the hopes it will go away.”  I’ll oblige Bernstein with a comment — namely, to point out that, contrary to his claim, a member of HRW’s board has responded.  In fact, the response was published in The New Republic itself and linked to in the article attacking HRW (with the ambiguous description “HRW’s response”).

It doesn’t take many words to demonstrate the shocking inaccuracy of Bernstein’s coverage of HRW, does it?

P.S. I note with amusement that Noah Pollak has written almost exactly the same post as Bernstein at Commentary, entitled “The Sound of Silence” instead of “The Sound of Crickets Chirping.”  (To his credit, Pollak at least doesn’t falsely claim that HRW hasn’t responded to TNR’s attack.)  To paraphrase Bernstein, I’m not given to conspiratorial thinking, but it’s almost as if “headquarters” has sent out word to try to read something conspiratorial into HRW’s refusal to respond to critics who routinely misrepresent its work.

P.P.S. That was quick.  Bernstein has updated his post to acknowledge HRW’s response.  He doesn’t bother to indicate, though, beyond placing the new text in ambiguous brackets, that his original post was inaccurate.