Archive for
June, 2010

Foreign Law Watch, Kagan Edition

by Kenneth Anderson

From the AP account of the Kagan confirmation hearing of the now presumably de rigueur question of candidates … foreign law and interpretation of the US constitution, a topic on which both Roger and I (and fifteen trillion other scholars, at least if you include those of Other Galaxies Than Ours) have written.  I imagine most American OJ readers will already have seen this in some news account somewhere, but anyway.

Supreme Court nominee Elena Kagan says foreign law could be useful “for getting good ideas” when interpreting the Constitution but that justices should not feel bound by it … international law can be used as a guide, but it should not be considered binding when deciding Supreme Court cases because the Constitution is a unique document.

A Priest, Rabbi, Imam and Sheik Went to Law School

by Roger Alford

I am in Israel this week on a nationwide tour with Jewish, Christian and Muslim leaders from Los Angeles to examine in detail the current state of Israeli-Palestinian relations. We have heard from Arab and Jewish members of the Knesset, visited hot spots along the Green Line, toured holy sites together, spoken with journalists who report from both sides of the conflict, and met with leading economists, lawyers, academics, business professionals, educators, humanitarians, and religious leaders. The event is sponsored by the Jewish Federation of Greater Los Angeles and the Board of Rabbis of Southern California. It has been a whirlwind tour through the eye of the Middle East hurricane.

I will report on my impressions of the experience in later posts, but I wanted to flag for our readers one really impressive example of cooperation among religious leaders. There is a young, entrepreneurial law school in Israel known as the Ono Academic College. It’s not as prestigious as the major law schools in Israel, but it has launched a new program that is nothing short of remarkable. Ranan Hartman, Founder of Ono (and son of the famous Rabbi David Hartman) recognized that many of the top religious leaders in the country were routinely providing religious legal judgments and even acting as judges in the top religious courts of the country. Yet they had no formal legal training. So he had the audacious idea of reaching out to top Imams, Rabbis, Sheiks, and Priests in Israel to offer them the opportunity to take classes (at deep discounts) for three years together to earn a law degree. Even more amazing, they agreed. So for the past three years approximately forty Muslims, Christians, Druze and Jews have been studying together every Tuesday to earn their law degree. Now that the inaugural class has just graduated Ono will matriculate a fresh crop of Muslims, Christians, Druze and Jews this coming fall. Hartman hopes to reach the cream of the crop of religious leaders in Israel.

Picture the scene. This morning I was sitting in a bland classroom near Tel Aviv with Muslim, Jewish and Christian leaders from Los Angeles as we met with Orthodox (and other) Rabbis, Imams, Druze Sheiks and Catholic priests affectionately discussing their law school experience. These are not young leaders of the future, these are the current religious leadership in Israel, including judges of the Supreme Muslim Council of Israel, the Israeli Rabbinical Courts (Beth Dien), the Druze judicial courts, and Catholic judicial authorities. (For details read this story from the Jerusalem Post or watch this video clip from Israeli national television).

One Catholic priest said that the experience was miraculous in two respects. First, that the religious leaders would choose to attend law school; second that they would grow so close to one another in the process. Not surprisingly, they disagreed about many, many things. As President Ranan Hartman put it today, “I know that my dream may be your nightmare and your dream may be my nightmare, but that doesn’t stop us from learning together and liking one another.” Powerful. I would venture that there’s nothing like it anywhere else in the world.

Morrison: The Fastest Reversal Ever (?) of a U.S. Supreme Court Decision

by Julian Ku

I wanted to thank all of the contributors (Bill Dodge, Austen Parrish, Margaret Sachs) to our discussion here about the recent Supreme Court decision on the extraterritorial application of U.S. securities laws in Morrison v. National Australia Bank. I wanted to also point readers toward some very wise and interesting comments on the decision from Prof. Hannah Buxbaum (over at The Conglomerate).  And most importantly, I wanted to note that despite all the excitement, Morrison may be (partially) overruled in a matter of days. The Dodd-Frank Wall Street Reform and Consumer Protection Act that was passed out of a House-Senate Conference Committee last week seems to provide just the clear statement of congressional intent for extraterritorial jurisdiction of securities law cases that the Court in Morrison was demanding. Assuming no hiccups, that bill should reach President Obama’s desk any day now. Starting on p. 1330 of this version,

(b) EXTRATERRITORIAL JURISDICTION OF THE ANTIFRAUD PROVISIONS OF THE FEDERAL SECURITIES LAWS.—

(1) UNDER THE SECURITIES ACT OF 1933.— Section 22 of the Securities Act of 1933 (15 U.S.C. 77v(a)) is amended by adding at the end the following new subsection: ‘‘(c) EXTRATERRITORIAL JURISDICTION.—The district courts of the United States and the United States courts of any Territory shall have jurisdiction of an action or proceeding brought or instituted by the Commission or the United States alleging a violation of section 17(a) involving—

‘‘(1) conduct within the United States that constitutes significant steps in furtherance of the violation, even if the securities transaction occurs outside the United States and involves only foreign investors; or

‘‘(2) conduct occurring outside the United States that has a foreseeable substantial effect within the United States.’’.

The same language is added to the ’34 Exchange Act and the 1940 Investment Advisers Act.

Astute readers will notice, however, that this language does not seem to include private causes of action under the various securities laws.  So here is how Morrison still matters.  Under the Dodd-Frank bill, the SEC is instructed to “study” the propriety of allowing private causes of action based on extraterritorial jurisdiction as well as open this to public comment.  (Sec. 929Y at pp. 1347).  This means of course, that Morrison still controls with respect private causes of action.

There is a fascinating backstory of exactly when and how this language was added to the Dodd-Frank bill. The timing is strange.  Morrison was released around 10:19 a.m. on Thursday, June 24.  The Dodd-Frank Bill was supposedly completed at 5:39 a.m. Friday, June 25.  I don’t know if there was a prior version with the same language, but if not, this is some seriously fast work by Congress which could lead to a partial reversal of a Supreme Court opinion less than 24 hours after the opinion was released!  And so after 70 odd years of silence by both Congress and the Supreme Court on this issue, it is fascinating that June 24, 2010 became the day both branches of government have decided to speak.

Introducing the Newest Member of the ICJ: Xue Hanqin (薛捍勤)

by Julian Ku

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The U.N. General Assembly and Security Council today voted to elect Xue Hanqin (薛捍勤) of China to membership on the International Court of Justice.  Xue will fill out the rest of the Judge Shi Jiuyong’s term, which runs until 5 February 2012.  As I noted before, Xue has an extensive experience as a diplomat as well as a member of the International Law Commission. Additionally, she has published a number of interesting articles and speeches in English on various topics of international law.  Her main academic work (in English) is Transboundary Damage in International Law (Cambridge 2003).  And she has sometimes taken on the role as a public spokesperson for Chinese views on international law. In a 2006 address in The Hague, for instance, she offered the glimmerings of a Chinese approach to international law questions such as state sovereignty, universal jurisdiction, and the fragmentation of international law. (Not detailed or developed views, but sort of interesting nonetheless).

Gabriella Blum and Philip Heymann on Targeted Killing

by Kenneth Anderson

Harvard professors Gabriella Blum and Philip Heymann have a new, short article online at the Harvard National Security Law Journal (which, by the way, is doing many interesting things), Law and Policy of Targeted Killing (June 27, 2010).  A version of it will appear as a chapter in their forthcoming book on terrorism and counterterrorism.  It is a fine essay, not over-long, and well worth reading if you at all take an interest in these topics.  Here is a little bit from the introduction (continued below the fold):

More than any other counterterrorism tactic, targeted killing operations display the tension between addressing terrorism as a crime and addressing it as war.  The right of a government to use deadly force against a citizen is constrained by both domestic criminal law and international human rights norms that seek to protect the individual’s right to life and liberty.  In law enforcement, individuals are punished for their individual guilt.  Guilt must be proven in a court of law, with the individual facing trial enjoying the protections of due process guarantees. Killing an individual without trial is allowed only in very limited circumstances, such as self- defense (where the person poses an immediate threat) or the immediate necessity of saving more lives.  In almost any other case, it would be clearly unlawful, tantamount to extrajudicial execution or murder. Continue Reading…

A Final Thought on Mark Janis’ ‘America and the Law of Nations’

by Kenneth Anderson

Having now finished America and the Law of Nations, let me add one more thought.  I had originally been interested in this book principally for the period between the world wars; my work on the UN has given me a long interest in the collective action failures of the League, and attempts to judicialize aggression as a crime at the ICC has likewise given me an interest in earlier attempts to outlaw war, e.g., Kellogg-Briand.  But instead I find that the chapter that most captured my attention was Chapter 4, “Dodge, Worcester, Ladd, and Burritt: Christianity, Courts, and World Peace.”

That chapter argues that to “a surprising extent, the international courts of today are the offspring of nineteenth-century American utopians, religious enthusiasts by and large untrained in the law.”  (p. 72.)  Antebellum Americans, at that.   Given my own steeping in the European history of the later 19th century and the founding of the ICRC, I had always assumed that, to the extent there was what today we would call a transnational social movement toward these kinds of utopian impulses, they would have been centered in Europe.  Locksley Hall, The Parliament of Man, all that.  I would not have guessed that fifty years or more before, the provincial, remotely located Americans would have been making waves in these matters.  But Janis makes a strong scholarly case that antebellum American religious progressivists played a deep and wide role in fostering the spirit of internationalist utopianism that embraced the idea of international tribunals.

But note – and I think this remains relevant today – that historically this progressive movement was located within, and was sheltered by, a still larger, or at least more transcendentally motivating, universalist utopianism – Christianity itself.  It is not, so far as I can understand from Professor Janis’s account, the form of disconnected, deracinated cosmopolitanism that is sometimes urged as the basis for liberal internationalism today.  Perhaps we have come so far, in the progression of culture, technology, and ever more expansive idealism that the mediating universalisms such as religion can be set aside, but I rather doubt it. Rather, the risk of today’s deracinated cosmopolitan-liberal internationalism is, on the one hand, that it cannot and does not succeed on its own terms – but still manages to neuter, on the other, the one form of large scale political organization that has shown itself itself, even with its many failures, able to deliver to those it governs, the nation-state – particularly expressed as liberal, democratic, and secular (in the sense of divided public-private).  Vive Westphalia, &tc.

ps.  Reading over the comments, it seems as good a time as any to quote from Thomas Berger:

“Address me not in Christian sentiments,” said the Lady of the Lake, “the which I find too coarse for fine kings.  Thine obligation was to maintain power in as decent a way as would be yet the most effective.”

The irony, of course, is that the Lady offers Arthur a nearly pitch-perfect expression of Niebuhrian Christian moral realism. Continue Reading…

Morrison and the Effects Test

by William S. Dodge

[William S. Dodge is a Professor of Law at the University of California, Hastings College of the Law. One of his articles on extraterritoriality was cited in Justice Stevens’s concurring opinion.]

There is no doubt that Morrison v. National Australia Bank is a landmark opinion, not just because the Supreme Court addresses here, for the first time, the extraterritorial reach of U.S. securities law, but also for what the opinion tells us more generally about the presumption against extraterritoriality.

As Margaret Sachs has already recounted, the Courts of Appeals, under the Second Circuit’s leadership, had established two tests for applying § 10(b) of the Securities Exchange Act to cases with foreign elements. Under the effects test, § 10(b) applied to foreign misrepresentations causing substantial effects in the United States. Such effects could be shown if the shares were traded on an American exchange or if fraudulent materials were sent to investors in the United States. Under the conduct test, § 10(b) applied to substantial misrepresentations in the United States that caused losses abroad. (For a summary of the law as it used to be, see Vagts, Dodge & Koh, Transnational Business Problems 454-57 (4th ed. 2008).)

In Morrison, Justice Scalia, writing for the Court, held that the presumption against extraterritoriality applies to the Securities Exchange Act. One might have guessed this would lead the Court to reject the effects test and limit § 10(b) to fraudulent conduct in the United States. But in fact the Court did the reverse, eliminating the conduct test and endorsing a narrower version of the Second Circuit’s effects test. Section 10(b), the Court held, can apply to fraudulent conduct abroad but only if the shares in question are listed on an American exchange or otherwise sold in the United States. How can this be so?

In an article published more than a decade ago, I noted that there are at least three ways to understand the presumption against extraterritoriality: (1) that acts of Congress should presumptively apply only to conduct in the United States regardless of whether the conduct causes effects in the United States (Justice Holmes’s view in American Banana); (2) that acts of Congress should presumptively apply only to conduct that causes effects in the United States regardless of where the conduct occurs (Judge Bork’s view in Zoelsch v. Arthur Anderson & Co.); and (3) that acts of Congress should presumptively apply to conduct occurring within or having effects within the United States (Judge Mikva’s view in Environmental Defense Fund v. Massey). Because I believe the only proper basis for the presumption today is the notion that Congress is primarily concerned with domestic conditions, I argued that Judge Bork’s view—that acts of Congress should presumptively apply only to conduct that causes effects in the United States—was the correct one.

A majority of the Supreme Court now seems to agree. The basis for the presumption, Justice Scalia writes in Morrison, is “the perception that Congress ordinarily legislates with respect to domestic, not foreign matters.” Slip Op. 5-6. “[T]he focus of the Exchange Act,” he continues, “is not upon the place where the deception originated, but upon purchases and sales of securities in the United States.” Slip Op. 17. In other words, the location of the fraudulent conduct is irrelevant; what matters is whether the conduct affects transactions within the United States. Moreover, Judge Bork’s opinion in Zoelsch questioning the conduct test but endorsing the effects test is virtually the only lower court opinion for which Justice Scalia has a kind word in Morrison. Slip Op. 10-11.

I agree with and applaud this understanding of the presumption against extraterritoriality. (Ironically, my article was cited not by Scalia’s majority opinion but by Justice Stevens’s concurrence.) But Morrison sits uncomfortably alongside other opinions written by Justice Scalia and Justice Thomas (whom Scalia routinely joins on such questions), which have focused formalistically on the location of the conduct. In Pasquantino, to take the most obvious example, Justice Thomas (writing for a majority that included Scalia) rejected the argument by Justices Ginsburg and Breyer in dissent that the presumption against extraterritoriality barred application of the federal wire fraud statute to a scheme hatched in the United States to defraud Canada of tax revenue. “This domestic element of petitioners’ conduct is what the Government is punishing in this prosecution, no less than when it prosecutes a scheme to defraud a foreign individual or corporation,” wrote Thomas. Morrison distinguishes Pasquantino on the ground that the wire fraud statute prohibits any fraud while § 10(b) prohibits only fraud “in connection with the purchase or sale of any security registered on a national securities exchange or any security not so registered.” Slip Op. 23. But if the text of § 10(b) limits its reach, resort to the presumption should have been unnecessary in Morrison. And if resort to the presumption was relevant in Morrison to determine what fraud Congress had in mind with respect to § 10(b), it should have been equally relevant in Pasquantino to determine what fraud Congress had in mind with respect to 18 U.S.C. § 1343.

I would like to say that Morrison represents convergence on the principle that when courts construe regulatory statutes in an international context it is the effects that matter, not the conduct. Justices Breyer and Ginsburg have emphasized in cases like Small v. United States the “commonsense notion that Congress generally legislates with domestic conditions in mind.” And Justice Stevens adopted an effects view of the presumption as far back as his 1992 concurrence in Defenders of Wildlife v. Lujan. But in Morrison, Stevens and Ginsburg would have preserved the Second Circuit’s conduct test and so concurred only in the judgment, while Breyer joined the majority only to the extent it is consistent with his own inscrutable one page concurrence. So if Justice Scalia’s approach to the presumption in Morrison is inconsistent with his earlier views, at least he is in good company.

ECtHR Finds No Right to Same Sex Marriage: Will U.S. Courts Follow Their Lead?

by Julian Ku

Marko Milanovic over at EJIL Talk! has a nice discussion of a recent European Court of Human Rights Chamber decision (Schalk and Kopf v. Austria, no. 30141/04) finding that denying same-sex couples the right to marry does not violate a member state’s obligation under the European Convention of Human Rights. The analysis is complicated, but one part of it is striking to an American constitutional lawyer, since it rejects the claim that Austria’s refusal to register a same-sex marriage violates the Convention’s equality guarantees.  Although it is not exactly analogous, its analysis is roughly comparable to a U.S. court undertaking equal protection analysis.  Will the U.S. courts now considering the equal protection claim against California’s Proposition 8 cite Schalk and Kopf?

Reading a Couple of Books on Legal History, and a Comment on Fragmenting International Law

by Kenneth Anderson

Flying around on various airplanes, I’ve been reading a couple of books on topics in legal history that I’ve found enjoyable and intellectually profitable.  One is Stephen Neff’s Justice in Blue and Gray: A Legal History of the Civil War. I have benefitted greatly from Professor Neff’s earlier books in international law history, War and the Law of Nations and The Rights and Duties of Neutrals, and the Civil War book is no exception.  Professor Neff (whom I had the pleasure of meeting earlier this summer as he is visiting at George Washington this term) is one of the most graceful writers in the field – he reads much less like a law professor; he writes as a sophisticated historian writing for a sophisticated but not specialized audience.  He wears his vast learning lightly and without pedantry.

The second book is one that arrived as a review copy from Oxford, Mark Weston Janis’ America and the Law of Nations 1776-1939.  Professor Janis is likewise an elegant and fluid writer, and, just having finished this not-too-long book, I’m enthusiastic.  (It is usefully accompanied by his earlier book, which I read back when it came out in 2004, The American Tradition in International Law: Great Expectations, which ran up through 1914.)

I am not an expert in US foreign relations law, let alone its history, and both of Professor Janis’ books opened my eyes to a great deal of background.  The new volume helps frame the history, finally, as it leads up to the era of the United Nations.  It does so by ranging from international law’s place in US 19th century legal opinions and diplomatic writing to the role of incipient Wilsonian international organizations – rise and collapse – up through WWII.  Excellent book, congratulations to Professor Janis.

Continue Reading…

Morrison and Extraterritoriality: More Thoughts

by Austen Parrish

[Austen Parrish is a Professor of Law and Vice Dean at Southwestern Law School.  His scholarship focuses on extraterritoriality and the uses of domestic law and courts to resolve transboundary challenges.]

The decision is yet a day old, and already much has been said about Morrison.  As Julian notes, there is a lot to ponder in the case.  But some quick initial reactions perhaps are worth making.

In some ways, the case is not remarkable.  The decision and concurrence are as much focused on classic debates over statutory interpretation and the relationship of the courts to the legislature than anything peculiar to extraterritoriality.  Justice Scalia, applying a robust presumption against extraterritoriality, embraces a clear statement rule: the court should not presume that Congress intends to regulate the overseas conduct of foreigners absent clear and unmistakable evidence of Congressional intent.  The concurrence, written by Stevens, in contrast reflects a greater willingness to engage in a broader search for legislative intent.  While conflicting rationales may exist behind the decision, the Court as a whole is nervous over broadly expanding the geographic reach of U.S. laws absent at least some evidence that Congress intended the laws to apply so broadly.  Unlike in the antitrust context, Congress had not revised the anti-fraud provisions of the Securities Act to define the scope of its application in cases involving foreign elements. To this extent, the opinion is in line with the Court’s other recent pronouncements involving extraterritorial laws, such as in cases like Microsoft v. AT&T (2007), Small v. United States (2005), Spector v. Norwegian Cruise Line (2005), F.Hoffman-La Roche v. Empagran (2004) etc., where the presumption against extraterritoriality, in varying degrees, has been consistently reaffirmed.

In other ways, however, the case could potentially have wide ranging implications.  The case emphatically sweeps away the prior understanding of many lower courts that the U.S. Securities Law can apply to fraudulent investment deals outside the U.S., if those deals have some effect within U.S. territory.  The opinion, however, has implications in other contexts, separate and apart from the securities laws.  Over the last few decades, the so-called effects test has been used increasingly by courts as a way to allow U.S. courts to remedy transnational harms.  No longer limited to the antitrust or commercial contexts, courts apply all sorts of public and private laws to activity occurring abroad.  Courts have done so even when Congress has been silent, and no legislative intent can be found.  Several courts have assumed extraterritorial jurisdiction based on the fiction that Congress inevitably intends to regulate all conduct where adverse effects are felt within the United States.  The decision in Morrison should curtail that controversial practice.

The opinion may also have a very immediate impact.  The Court is considering whether to grant certiorari in the case British American Tobacco Co. v. United States. That case, in the context of the U.S government’s RICO suit against the tobacco industry asks whether civil RICO applies to the overseas conduct of a British defendant.  In that case, the D.C. Circuit bypassed the presumption against extraterritoriality and held that once an effect is felt within the United States, extraterritorial jurisdiction may be presumed.  The D.C. Circuit went beyond earlier lower court decisions that suggested that when an effect is felt in the United States, the presumption is reversed.  On Monday, the Court will announce its decision whether to accept certiorari in the BATCO case.  As John Elwood has pointed out over at the Volokh Conspiracy, it “may be that the Court simply decides to grant, vacate, and remand [the BATCO case] in light of [the Morrison] decision.” .  An amicus brief on that case, in which I was involved, can be found here.

While I have mixed emotions as to whether a clear a statement should be required from Congress or whether legislative intent to regulate extraterritoriality can be ascertained in other ways, the Court’s decision seems a step in the right direction.  A patchwork of incompatible rules has governed issues of extraterritoriality.  Although many scholars are nervous about a broad reading of the presumption against extraterritoriality, Morrison reaffirms the continuing importance of that canon of construction and should therefore make it easier for lower courts to apply.  More importantly, the case should temper the excesses of a broadly read effects test, which in recent years has given U.S. courts near universal jurisdiction.  As I have argued elsewhere, the effects test is problematic for a number of reasons and limiting its import through use of the presumption against extraterritoriality, seems a positive development.

A final point.  Although the more conservative and the more liberal members of the court are in general agreement that legislation should not be automatically read to apply to foreign conduct, the rationale behind that agreement is likely very distinct (more so than what is revealed by the Scalia-Stevens sparring over statutory interpretation).  While the more conservative justices are concerned about canons of construction, clear statement rules and legislative prerogative, the court’s more liberal members appear concerned with unreasonably interfering with the sovereign interests of other nations and to avoid unnecessary conflict between nations.  How this alliance will play out in other cases on the margins, particularly non-market cases involving environmental, labor, and other public laws, is less than clear.

Justice Department Comings and Goings

by Deborah Pearlstein

The Times and others are reporting that current Acting Head of the Office of Legal Counsel (OLC) at the Department of Justice, David Barron, will be leaving his post this summer to head back to his professorship at Harvard Law School. (OLC rose to national prominence during the last administration as the home of John Yoo and colleagues, who crafted unsupported legal arguments to justify the use of torture against detainees.) Barron has been the de facto head of the office throughout the Obama Administration, his tenure a result of Congress’ failure to confirm the President’s nominee for permanent head, Dawn Johnsen. Barron’s announcement comes on the heels of rumors in recent weeks that Barron’s OLC colleague, Marty Lederman, had also been planning to depart OLC sometime in the coming year, to return to his post as professor at Georgetown Law School.

At one level, such departures should be no surprise, coming around (or at least near) the 2-years-in-service mark, a time when many political appointees find themselves up against academic leave deadlines, or are otherwise longing for a return to their pre-government families and lives. Fair enough. Nonetheless, the departure of either or both will be a real loss to the Administration. Barron and Lederman have been deeply engaged in the suite of detainee issues the Administration has been grappling with since transition. We can hope to welcome them back to the blogosphere one of these days. But their real-time efforts inside DOJ will undoubtedly be missed.

International Securities Fraud Makes Supreme Court Debut

by Margaret Sachs

[Margaret V. Sachs is the Robert Cotten Alston Professor of Law at the University of Georgia School of Law and an expert on securities law]

The Supreme Court yesterday issued its decision in Morrison v. National Australia Bank, its first ever on the international reach of Section 10(b) and Rule 10b-5. Justice Scalia wrote for the Court, with additional opinions by Justice Breyer (concurring in part and concurring in the judgment) and Justice Stevens, joined by Justice Ginsberg (concurring in the judgment). Justice Sotomayor did not participate.

The federal securities laws in general, and the Securities Exchange Act in particular, say nothing about the international reach of the fraud provisions. Beginning in the 1960s, the lower federal courts developed an elaborate jurisprudence aimed at clarifying how far the reach extended. That jurisprudence – largely the creation of the renowned Judge Henry J. Friendly of the Second Circuit – proceeded from the assumption that back in the 1930s, Congress did not anticipate the eventual internationalization of the securities markets. Seeking to ascertain what Congress would have done if it had actually addressed the question, Judge Friendly and others formulated what came to be known as the “conduct” test and the “effects” test. Under the conduct test, a federal district court had subject matter jurisdiction if the bulk of the fraudulent conduct occurred in the US, even if the effects were felt largely, if not entirely, by investors outside the US. The most often-mentioned rationale for this test was that Congress would not have wanted the US to serve as a “launching pad” for fraud that did harm elsewhere. Under the effects test, jurisdiction attached when conduct, even if it occurred in other countries, produced immediate and substantial effects on US investors or US markets. The rationale for this test, not surprisingly, was that US investors and US markets had been Congress’s primary concern. While Judge Friendly and others recognized the possibility that other countries might object to assertions of jurisdiction by the US, they regarded the risk as minimal because, in their estimation, all countries were of one mind about fraud.

Morrison itself was a so-called “foreign cubed” case, that is, one brought by foreign plaintiffs who bought or sold foreign shares on a foreign exchange from a foreign defendant. The plaintiffs, citizens of Australia, had purchased shares of an Australian bank on the Australian Securities Exchange. They nonetheless filed a fraud-on-the market action in the Southern District of New York, which, they claimed, had jurisdiction to hear the case because the fraud at issue had been concocted in Florida, the location of the bank’s wholly-owned US subsidiary. Florida was the place where the subsidiary allegedly cooked its books and from which it then sent falsified figures to the bank’s headquarters in Australia. Headquarters then incorporated those figures without change into filings made with the Australian Securities Exchange as well as with other exchanges, including the New York Stock Exchange (where the bank’s American Depository Receipts were traded). There were no American plaintiffs in Morrison, with the exception of one whose claim was dismissed early on because of his failure to plead damages. He was not a part of the appeal.

The SDNY dismissed the case for lack of jurisdiction. Labeling the dismissal a “close call,” the court reasoned that there would have been no securities fraud at all without the act of incorporation that occurred in Australia. Thus, in the district court’s view, the critical conduct had occurred in Australia, not in the US. The Second Circuit affirmed on essentially similar grounds, without the trial court’s seeming hesitancy. The Second Circuit, however, expressly declined to bar all foreign cubed claims.

The Supreme Court affirmed the Second Circuit’s decision for reasons that were altogether alien to that court’s jurisprudence. Justice Scalia’s highly critical opinion began by observing that the Second Circuit had made a forty-year-long blunder in characterizing Rule 10b-5’s extraterritorial reach as jurisdictional, when in fact it pertained to the merits. (The parties did not dispute the merits characterization, but they had not briefed it.) A remand was nonetheless inappropriate, Justice Scalia explained, because this “threshold error” had not been integral to the reasoning of the courts below.

Justice Scalia went on to excoriate the Second Circuit for constructing a jurisprudence that ignored the presumption against extraterritoriality….

Just Call him Antonin Scalia: Anti-Imperialist (in the Extraterritorial Application of U.S. Laws)

by Julian Ku

U.S. courts have long struggled with questions about the extraterritorial scope of U.S. federal law.  Many U.S. laws regulating business activities, most notoriously antitrust law, have been interpreted to apply to conduct outside U.S. territory, even by foreign nationals. And this all has been a constant irritant to foreign nations, who have sometimes complained about the expansive, sometimes imperialistic, application of U.S. law to overseas business activities.

Luckily, that noted supporter of international friendship and comity, Justice Antonin Scalia, has come to rescue with his opinion for the Court in Morrison v. National Australia Bank. Scalia held that the presumption against extraterritoriality applies to federal securities laws, notwithstanding lots of lower court opinions to the contrary in the Second Circuit (the federal appellate court with jurisdiction over New York).  Indeed, the Court seems to be overturning decades of pretty-well entrenched Second Circuit jurisprudence.  (And all members of the court, including the concurring justices, seemed to reject without much regret the U.S. government’s brief that offered an alternative approach to the Second Circuit.  That brief was led by current nominee Elena Kagan).

There is a lot to ponder in this case, which touches on questions of statutory interpretation, federal securities law, and the extraterritorial scope of U.S. statutes. For me, though, the key holding is that, yes, there really is a hard presumption against the extraterritorial application of U.S. laws that requires a very clear statement by Congress to be overcome. As Justice Scalia writes:

The results of judicial-speculation-made-law—divining what Congress would have wanted if it had thought of the situation before the court—demonstrate the wisdom of the presumption against extraterritoriality. Rather than guess anew in each case, we apply the presumption in all cases, preserv­ing a stable background against which Congress can legislate with predictable effects.

It is true most lower courts didn’t seem to believe such a hard clear statement rule existed or that it applied in ALL cases. But they should now.  And I think foreign governments can stop complaining about the expansive imperialistic application of U.S. business law, thanks to Justice Scalia.

The ICJ Remains a Sophisticated Political Environment, And Becomes a Little More Gender-Diverse

by Julian Ku

I tread warily into ICJ blogging after my last bizarre brain cramp, but I can’t resist commenting on Roger’s posts (and the comments to his posts by very knowledgeable folks like Paul Stephan and David Kaye) on the new U.S. nominee Joan Donoghue.  Unlike Roger, I don’t have a problem with Donoghue’s qualifications in general (although it is worth pointing out that serving as General Counsel at Freddie Mac from 2001-2005 is NOT a positive credential). Although an academic is a fine qualification for the ICJ, being a career government lawyer in the foreign ministry of a leading power seems at least as good (and probably a better) qualification for the job of being an ICJ member than writing academic scholarship.

Indeed, (as Dapo Akande points out here) China’s selection of a new member this year, Xue Hanqin, suggests that the Donoghue choice is a wise one.  Like Donoghue, Xue is currently Legal Adviser to the Chinese Foreign Ministry and she has served as ambassador to ASEAN and a member of the International Law Commission.  Xue has published some interesting international law scholarship in English (and probably much more interesting stuff in Chinese) and is an impressive and dynamic speaker at public events. She will be formidable and Donoghue’s experience in government will probably prepare her well to work with a savvy intellectual/political figure like Xue.  Sure, the ICJ is a court, but it is also a sophisticated political environment where experience in international diplomacy still matters.  Academics may or may not have these skills

Although I doubt it was the most important factor in their selections, it is worth noting that Xue and Donoghue would be only the second and third women ever to serve as a permanent ICJ judge (the first was Dame Roslyn Higgins).  To the extent the ICJ has an expressive and symbolic power, the arrival of Xue and Donoghue will be an important and welcome milestone.

Supreme Court Upholds Criminal Ban on Teaching International Law

by Roger Alford

That’s a remarkable statement, but it actually is true. Yesterday the Supreme Court in Holder v. Humanitarian Law Project addressed the question of whether a federal statute criminalizing the provision of “material support” to terrorist organizations was constitutional. A humanitarian NGO group wanted to train members of two terrorist organizations, the PKK and the LTTE, to become more non-violent and use peaceful means to resolve their disputes. That included training them about international law.

But the Court—by a vote of 6 to 3—upheld the restriction, concluding that providing services of this nature contravened the statute and that that statute was constitutional.

Plaintiffs claim that §2339B is invalid to the extent it prohibits them from engaging in certain specified activities…. [T]hose activities are: (1) “train[ing] members of [the] PKK on how to use humanitarian and international law to peacefully resolve disputes”; (2) “engag[ing] in political advocacy on behalf of Kurds who live in Turkey”; and (3) “teach[ing] PKK members how to petition various representative bodies such as the United Nations for relief.”…

The Court concluded that the statute was not unconstitutionally vague, because teaching international law clearly fell within the meaning of the words “training” and “expert advice or assistance.”

Most of the activities in which plaintiffs seek to engage readily fall within the scope of the terms “training” and “expert advice or assistance.” Plaintiffs want to “train members of [the] PKK on how to use humanitarian and international law to peacefully resolve dispute.”… A person of ordinary intelligence would understand that instruction on resolving disputes through international law falls within the statute’s definition of “training” because it imparts a “specific skill,” not “general knowledge.”

The Court also concluded that teaching international law to members of the PKK and the LTTE did not violate First Amendment free speech:

Plaintiffs want to speak to the PKK and the LTTE, and whether they may do so under §2339B depends on what they say. If plaintiffs’ speech to those groups imparts a “specific skill” or communicates advice derived from “specialized knowledge”—for example, training on the use of international law or advice on petitioning the United Nations—then it is barred. On the other hand, plaintiffs’ speech is not barred if it imparts only general or unspecialized knowledge.

It seems odd, but any effort to train members of terrorist organizations to renounce their ways and pursue the path of peace is prohibited by federal statute.

Not surprisingly, Justice Breyer—joined by Justices Ginsburg and Sotomayor—wrote a scathing dissent, and singled out the criminalization of teaching international human rights law in particular:

[T]he majority discusses the plaintiffs’ proposal to “‘train members of [the] PKK on how to use humanitarian and international law to peacefully resolve disputes.’” The majority justifies the criminalization of this activity insignificant part on the ground that “peaceful negotiation[s]” might just “bu[y] time . . . , lulling opponents into complacency.” And the PKK might use its new information about “the structures of the international legal system . . . to threaten, manipulate, and disrupt.” What is one to say about these arguments—arguments that would deny First Amendment protection to the peaceful teaching of international human rights law on the ground that a little knowledge about “the international legal system” is too dangerous a thing; that an opponent’s subsequent willingness to negotiate might be faked, so let’s not teach him how to try?…

The risk that those who are taught will put otherwise innocent speech or knowledge to bad use is omnipresent, at least where that risk rests on little more than (even informed) speculation. Hence to accept this kind of argument without more and to apply it to the teaching of a subject such as international human rights law is to adopt a rule of law that, contrary to the Constitution’s text and First Amendment precedent, would automatically forbid the teaching of any subject in a case where national security interests conflict with the First Amendment.

I am not a First Amendment scholar, but I think the dissent has the better argument. Applying this statute to impose a criminal ban on teaching members of terrorist organizations about the rule of law, or international human rights, or the non-violent writings of the Sermon on the Mount, Mahatma Gandhi, or Martin Luther King, is just a remarkably inappropriate content-based restriction on speech.

Naval War College Conference

by Kenneth Anderson

I’m on radio silence, as I’m at the Naval War College conference on international law, which is where all the cool people are this week … odd, though, I seem to be the only OJ blogger here!  Could it be that I am the only cool OJ … no, no! Seriously, though, congratulations to Derek Jinks and Dennis Mandsager and the rest of the folks who organized this great meeting.  (I was last on radio silence finishing up my short policy manuscript on UN-US relations.  I’m not sure I’d describe it as “done,” but the editors took it away from me, saying that I’d keep fiddling forever.)

ASIL International Economic Law Interest Group: A Call for Papers

by Duncan Hollis

The American Society of International Law has an active International Economic Law (IEL) Interest Group. Most notably, it holds a biennial conference geared to a common IEL theme, with the papers presented then collected and published in some form, including THE POLITICS OF INTERNATIONAL ECONOMIC LAW, Tomer Broude, Amy Porges and Marc L. Busch eds., Cambridge University Press (forthcoming 2010); INTERNATIONAL ECONOMIC LAW: THE STATE AND FUTURE OF THE DISCIPLINE, Colin B. Picker, Isabella D. Bunn and Douglas W. Arner eds., Oxford: Hart Publishing, 2008; and TRADE AS THE GUARANTOR OF PEACE, LIBERTY AND SECURITY? CRITICAL HISTORICAL AND EMPIRICAL PERSPECTIVES, Padideh Ala’i, Tomer Broude, & Colin Picker eds., ASIL Press, 2006.

The IEL interest group will hold its next biennial conference on November 18-20, 2010 at the University of Minnesota Law School (Minnestoa is co-sponsoring the conference and its Journal of International Law is apparently poised to publish this year’s collection of papers as part of a special symposium issue). The theme this time is International Economic Law in a Time of Change: Reassessing Legal Theory, Doctrine, Methodology and Policy Prescriptions. Here’s an extract from the call for papers:

The start of the second decade of the twenty-first century is witnessing a confluence of events affecting international economic law that calls for re-evaluation. The international context has radically changed. Most analysts contend that we are shifting toward a multi-polar world in light of economic transformations in China, India, Brazil, and other developing and transitional countries, coupled with economic stagnation in the United States and Europe which are beset by a financial crisis and embroiled in foreign wars and security concerns. These developments have arguably complicated international economic governance, yet other factors–such as the current financial crisis–press consideration of new forms of international economic governance, such as the G-20. Global economic interdependence, exemplified by global production and supply chains, calls for sustained attention to international economic law and institutions. . . .

This call for papers welcomes submissions that provide new analytic frameworks, reassess legal theory, evaluate developments in legal doctrine, engage in empirical analysis of the way international economic law operates, and provide guidance for policymakers, regulators and adjudicators in this time of international economic change.

The range of possible topics is wide—the list below is provided as a thought-starter of possible topics identified by the conference committee. We welcome however quality proposals on any international economic law topic.
* Methodological approaches for studying international economic law and their implications;
* Interpretive approaches to international economic law: theory vs. practice;
* Reform of international economic governance institutions, such as the WTO, IMF, World Bank, the G-8/G-20; international standards organizations;
* The interaction of institutions in a fragmented international economic law system;
* The role of hard and soft law in international economic governance, such as financial regulation;
* The interaction of private transnational economic governance regimes with public law;
* The interaction of international economic law and domestic law and politics;
* Theoretical and empirical studies on how international economic law institutions work;
* Theoretical and empirical studies on the handling of trade and investment disputes;
* Accountability and legitimacy of international economic governance;
* Climate change and its implications for international economic governance;
* Handling food and consumer safety risks in international trade;
* International economic law and the reassessment of development policies;
* New governance techniques in international economic law: their prospects and limits;
* Teaching international economic law: using new technologies;
* The future of international economic law after the financial crisis;
* The rise of China and a new international economic order?;
* Proliferating regional trade and investment agreements: complementing or supplanting multilateralism?; and
* The implications of the Doha Round for international economic law governance

The deadline for paper proposals is July 30, 2010, with decisions on inclusion by September 1, 2010, and full drafts due by November 1, 2010. Paper proposals should include the author’s name and full contact information, and an abstract of no more than 300 words. A Conference Committee will review and select proposals. Questions about the conference or paper proposals can be directed to 2010IELconference [at] gmail [dot] com.

The Gitmo Task Force Report

by Deborah Pearlstein

Cross-posted at Balkinization

Nothing like summertime to catch up on a little light reading I spent too little time with during the semester. So especially after being re-energized at this year’s American Constitution Society Convention (where I did a panel with Gene Fidell and others far more interesting than I on military commissions vs. federal courts, and got treated to a Cory Booker barn-burner of a “do something” speech), herewith my first catching-up blog.

If you read any new document this summer in the ongoing detention-interrogation-trial saga that is Guantanamo Bay, make it the (relatively) recently released final report of the Guantanamo Review Task Force. This was the inter-agency body established by Executive Order a few days after President Obama took office and charged with reviewing (which required first collecting) all of the government’s existing information about the then-current residents of Guantanamo Bay and making recommendations for their disposition. The report is available here and was the subject of a few articles (in the Times and Wash Post),though my sense is that it was largely overlooked when it was released. The report itself is a concise 32 pages, and contains (among other instructive passages), the most detailed official public description (beginning p. 22) I’ve seen explaining why the executive branch has determined that 48 detainees at Gitmo should still be detained but cannot be prosecuted in either an Article III or military commission court.

Before I get to the reasons why 48 detainees have been deemed unprosecutable-but-unreleaseable, I must start out by pausing on the number, which seems pretty striking in the eight years I’ve spent following U.S. counterterrorism detention operations post-9/11. Out of the 800-some originally shipped to Guantanamo, out of the tens of thousands detained by the United States since 2001(in operations from Afghanistan to Iraq and beyond), out of the millions of people on the planet who undoubtedly wish to do us harm – the whole debate, and the future of U.S. detention policy, has now evidently come to down to the apparent intractability of these 4 dozen cases.

Indeed, as the Task Force report indicates, the real fraction of the post-9/11 detainee population who might fit into the ‘intractable’ category if seized today is almost certainly smaller than that. For example, some of the final 48 aren’t prosecutable because the federal criminal material support law that existed in 2001, when these detainees were seized, did not extend to offenses committed outside the territory of the United States. That territorial gap has long since been filled by an amendment to the material support statute. So if the U.S. picked up one of those men today, prosecution would be an option. Others of the 48 (unclear from the report how many, but at least a handful) have been rendered ‘unprosecutable’ because of decisions the last administration made – which decisions cannot now be undone. Like what? Some of these men have been detained so long, the statute of limitations on the offense for which they might have been prosecuted has run. For some of them, the only/best evidence we have of any wrongdoing were statements gleaned from witnesses subject to torture or cruel treatment. And there are others (like a Taliban military commander) who – had we treated them in accordance with international law in the first place – it appears would have been far less controversially detainable by the U.S. and/or the Afghans under existing detention authorities (like the statutory Authorization for Use of Military Force (AUMF), the international laws of armed conflict, and/or specific U.S.-Afghan and/or UN authority).

For apparently a large subset of the 48, the United States simply made no attempt to collect (or save) any information about them at the time of their capture that might subsequently be used in a prosecution, for war crimes or otherwise. In some cases, such a decision might well make sense. A Taliban commander caught by U.S. forces in Afghanistan in 2002 was picked up in a classic international armed conflict, and, particularly had he been afforded the protections of the Geneva Conventions, could be lawfully detained for the duration of that conflict without need for trial. But it’s not at all clear that the set of men detained-without-effort-at-evidence-collection is the same as the set of men lawfully detainable under the international law of armed conflict. On the contrary, much in the detention practice of the last administration suggested that people were detained (in CIA facilities and elsewhere) without any concept of an end-game – whether the plan was to prosecute them for war crimes some day, or to detain them until the end of the Afghan conflict, or simply to detain them forever without much worrying about the law of why or how. In short, it seems likely that for some of these remaining 48, there was simply no plan at all. Presumably, for the wouldbe terrorist detainee we pick up tomorrow, we have a plan now.

In all events, if we subtract all of those but-for cases from the Gitmo 48, how many remain who would pose an intractable detention dilemma, seemingly fall into a gap in existing legal authority, if we picked them up today? A dozen? A handful? For the sake of this group, some still argue, we should pursue new statutory authorization for the (indefinite?) detention of (which?) terrorist suspects for the (indefinite?) future of the United States. When Holmes wrote that hard cases make bad law, he wasn’t kidding.

Ok, so what it is about these 48 men such that, as the report put it, “the totality of available information – including credible information that might not be admissible in a criminal prosecution – indicated that the detainee poses a high level of threat that cannot be mitigated sufficiently except through continued detention.” The report says these detainees “were characterized by one or more of the following factors…”: (1) “Significant organizational role within al-Qaida, the Taliban, or associated forces.” (2) “Advanced [jihadist] training or [combat] experience.” (3) “Expressed recidivist intent;” or, (4) “History of associations with extremist activity.”

While there remain questions about what it means “forces…associated” with the Taliban or al-Qaida, category (1) above seems to fall pretty squarely into the interpretation of the AUMF the Administration has now successfully advanced before the D.C. federal courts. It is at least in part consistent with the kind of detention contemplated by the international law of armed conflict. And beyond that – as the habeas cases are making clear – the legality of such detentions depends a lot on the particular facts of the case. Category (2), while also leaving some ambiguities, sounds a fair bit like conduct that is now – but was not necessarily in 2001 – covered by the federal criminal laws of the United States. Receiving military training from a terrorist organization is its own independent federal crime and/or is almost certainly prosecutable under the extraterritorial material support offense. Category (4) – “History of associations with extremist activity” – seems to me simply too vague to make heads or tails of. It is not – and the report does not suggest that it is – a legal category of some kind. But even as a descriptive tag, it seems to me broad enough to include almost anything. Or not. So for now I leave it to one side.

Which brings us to Category (3) – those with “[e]xpressed recidivist intent.” Assuming such men do not also fall into any of the other descriptive categories, I take it that such an individual is one for whom the circumstances of his seizure are either unknown or not plausibly in the context of armed conflict, for whom there is no available information as to his past activities, but who, at some point during the past 8 years of detention in/around Guantanamo Bay, has indicated that if released, he’d like to, for example, kill Americans. If I were President Obama, this is the guy whose case would keep me up nights. But here’s a question, and it is a genuine one: By what law may the United States detain someone who, without more (i.e. no evidence of Al Qaeda membership, of engagement in armed conflict, etc.), expresses an intention to do harm?

Opt-Ins and Opt-Outs

by Kevin Jon Heller

Dapo Akande has an important post today at EJIL: Talk! that asks, as he puts it, “what exactly was agreed in Kampala on the crime of aggression?”  I think this paragraph is particularly important:

The opt out provision is the most confusing aspect of the aggression amendments. Who exactly  is required to opt out? Once the requisite number of ratifications are reached and a decision is made in or after 2017 to activate the aggression provisions, are all States parties to be regarded as bound such that the ICC has jurisdiction over aggression committed by the nationals of all States parties unless they opt out? Or does the ICC only have jurisdiction over nationals of States parties who have accepted/ratified the amendment unless that State party opts out? Bill Schabas and Kevin Jon Heller appear to believe that the all States parties are bound unless they opt out. So, absent an opt out any national of any State party can be prosecuted for aggression once the amendments come into force. However, I have recently spoken to members of two State delegations at Kampala who take the view that only those States parties that ratify the amendments are bound and that only aggression committed by a State that has ratified the amendment can be prosecuted by the Court, unless they opt out. This latter view would seem to accord with Art. 121(5) that the amendments only enter into force for those States that have ratified or accepted them. Further that provision states, the Court may not prosecute with respect to the crimes committed by nationals of, or on the territory of those who State parties who do not accept.

I actually do not take the position that Dapo ascribes to me, and I regret not registering my disagreement with it in my original post.  As I argued with regard to the understandings, I believe that, in the absence of agreement by all 111 States Parties, the Rome Statute can only be amended pursuant to the procedures established in Article 121.  Nearly 30% of the States Parties were not present at the Review Conference, which means that any amendment adopted by the delegates must comply with Article 121.  And Article 121(5) makes clear that no State Party is bound by an amendment unless it ratifies it:

Any amendment to articles 5, 6, 7 and 8 of this Statute shall enter into force for those States Parties which have accepted the amendment one year after the deposit of their instruments of ratification or acceptance. In respect of a State Party which has not accepted the amendment, the Court shall not exercise its jurisdiction regarding a crime covered by the amendment when committed by that State Party’s nationals or on its territory.

I believe, then, that a State Party must “opt-in” to the aggression amendments before those amendments are binding on it.  Until such time, the Court will not have jurisdiction over aggression “committed by that State Party’s nationals or on its territory” — and that is true even if the aggression amendments have received the requisite 30 ratifications (and 2/3 of the States Parties have approved the amendments in 2017).  Once a State Party has opted-in, however, it then has the right under new Article 15bis(4) to opt-out.

That may seem like an odd procedure — why require an opt-in before permitting a State Party to opt-out?  But it actually makes sense, as the chart in my original post indicates.  There is, in fact, a fundamental difference between a State Party who opts-in and then opts-out and a State Party who never opts in: the first State Party is protected against acts of aggression committed against it, but the second State Party is not.  Don’t forget, opting-out pursuant to new Article 15bis(4) will only divest the Court of jurisdiction to prosecute  “a crime of aggression arising from an act of aggression committed by a State Party”; opting-out will not divest the Court of jurisdiction to prosecute a crime of aggression committed on the territory of that State Party.

Differently put: a State Party that never opts in will be in the same position as a non-party State, while a State Party that opts-in and then opts-out will be in a unique position — it will be better protected against aggression than a non-party State, but its nationals will be no less immune from prosecution than nationals of a non-party State

As I said before, I have a problem with that asymmetry.  I think States Parties should either accept the crime of aggression in toto or not accept it at all.  But the asymmetry clearly exists — and it explains why it is not nonsensical to require States Parties to ratify the aggression amendments before opting-out of them.

Donoghue Confirmed as Choice for ICJ Vacancy

by Roger Alford

Secretary of State Hillary Clinton has confirmed Joan Donoghue as the choice to fill the vacancy on the ICJ left by Judge Thomas Buergenthal. She describes Donoghue as “judicious, fair, an extraordinary international legal counsel, and an excellent choice for the Court.“

Let me also pick up on a comment to my previous post, in which Peter Trooboff defends Donoghue’s independence and intellect. Neither Clinton’s press release nor Trooboff’s comment address my central concern of why Donoghue was chosen over candidates who were clearly more qualified. The most logical answer is political influence of the Obama Administration and/or confidence among the State Department Legal Advisers of the U.S. national group in her future voting behavior.

Incidentally, my concern about the role of politics in the election of ICJ judges is nothing new. The process of election through the national group of the PCA with the approval of the Security Council and the General Assembly was designed to minimize political influence in the nomination process. More recently, former Legal Adviser Davis Robinson expressed such concerns at the 2003 ASIL annual meeting, candidly admitting that most national groups usually “are extensions of their governments.” He did note that the U.S. national group on occasion has displayed streaks of independence, with the choice of Richard Baxter over the Carter Administration’s preferred candidate—former Supreme Court Justice Arthur Goldberg—as the most famous example. But Robinson emphasized that historically U.S. government control is neither sought nor exercised.

With respect to the choice of Donoghue, can one say with confidence that that U.S. government control was neither sought nor exercised? Did Harold Koh display appropriate discretion in pushing for his immediate subordinate at State to fill the ICJ slot? Did the U.S. national group exercise its authority with the same independence as it has in the past? I have no doubt that Donoghue is qualified in the Article 2 sense, but I seriously doubt that a career State Department lawyer who is virtually unknown outside government is the best person for the job, particularly given the alternatives. Or if you wish to do an historical analysis, compare her credentials with those of Hackworth, Jessup, Dillard, Baxter, Schwebel, and Buergenthal at the time of their nominations. It just doesn’t add up.

What could possibly have tipped the balance in favor of Donoghue over more qualified candidates other than the concerns I raised in my previous post? Taking seriously the requirements of judicial independence and impartiality, this choice at a minimum presents an appearance of impropriety.

Is the “Mosquito” Teenager-Repellent Device “Degrading”?

by Julian Ku

I don’t know what to make of this report about a controversial device used to repel teenagers and children by using a high-pitched frequency only young people can hear.

The mosquito works by emitting a pulse at 16-18.5 kilohertz that switches on and off four times a second for up to 20 minutes. It emits an irritating, high-pitched sound that can be heard only by children and people into their early 20s, and is used to prevent teenagers congregating outside shops, schools and railway stations.

A Council of Europe investigation, however, calls the use of these devices — “mosquitos” — a violation of the European Convention on Human Rights.  According to this report, the devices contravene, among other things, the prohibition on discrimination based on age and the prohibition on inhuman or degrading treatment.  The Report seems to emphasize the degrading point.  I would have to know more about the devices, but on its face, I wonder how it could meet the the ECHR’s prohibition of inhuman and degrading treatment under Article 3.  Does degrading really have a separate independent meaning from the cruel and inhuman language of that provision? In other words, could something violate Article 3 by being degrading, but not cruel or inhumane? I don’t know enough about the ECHR case law to say, but it seems implausible to me.

Intelligence Activities and International Law

by Kenneth Anderson

Peyton Cooke has an interesting paper on the status of “intelligence” activities in international and domestic law.  It doesn’t seem to be on SSRN, but it is “Bringing the Spies in from the Cold: Legal Cosmopolitanism and Intelligence under the Laws of War,” 44 USFLRev 601 (Winter 2010).  The argument takes up Eric Posner’s critique of “legal cosmopolitanism,” as a way to frame various questions of “intelligence” – including interrogation, detention, and targeting.  It looks to draw intelligence activities under the laws of war, although I am simplifying a more complicated argument and view.  My view, as I’ve discussed here, goes a different direction than armed conflict, but I’ll leave that aside.  This is an interesting paper and worth a read.

U.S. LawProf Erlinder Freed on Bail in Rwanda

by Julian Ku

I kind of expected this would turn out this way, but it does the Rwandan government no credit that they finally released jailed U.S. law professor Peter Erlinder, albeit on bail and due to concerns about his health.  Needless to say, I doubt Professor Erlinder will be returning to Rwanda anytime soon.

Peter Erlinder, the American lawyer jailed inRwanda after being accused of denying the country’s genocide, was released Thursday on bail amid growing international pressure, allowing him to leave Rwanda, possibly for good.

Judges in a high court in Rwanda’s capital, Kigali, overturned an earlier decision to deny bail to Mr. Erlinder, 62, citing questions over his medical condition. Mr. Erlinder, who has been hospitalized since Tuesday with high blood pressure, was not present.

“Peter can go back to the United States,” said Mr. Erlinder’s lawyer, Kennedy Ogetto, adding that there was no scheduled time for him to return. “There is no date.”

The court’s decision came after pressure from the United Nations and the United States to free Mr. Erlinder, who works at the International Criminal Tribunal for Rwanda. Dozens of lawyers at the tribunal, which handles cases related to the Rwandan genocide but is based in Tanzania, said that Mr. Erlinder had been arrested for his work there, despite holding diplomatic immunity, and they had threatened to stop working because of his case.

Mr. Erlinder was arrested days after going to Rwanda in May to represent Victoire Ingabire, a presidential candidate charged with “divisionism” and “genocide ideology,” and with collaborating with terrorists ahead of elections scheduled for August.

Does the U.N. Believe in Rule of Law (for Its Employees)?

by Julian Ku

Interesting story in the NYT about the U.N.’s difficulty in creating a fair and effective system to resolve internal disputes, especially employee disputes.  Last July, the U.N. created a new Dispute Tribunal composed of independent judges to remedy a much despised previous system.  But the new Tribunal, and the U.N. bureaucracy’s unwillingness to cooperate with it, is getting some tough reviews.

Diplomats, lawyers and others tracking the cases describe the United Nations’ stance on the tribunal as contradictory, if not hypocritical, given the organization’s role in promoting the rule of law globally. “The organization has to decide from the S.G. on down whether this is an organization that respects the rule of law or not,” said George Irving, a former president of the staff union and a lawyer who has worked on administrative cases at the United Nations for more than 30 years. “What you are witnessing essentially is a power struggle. It is all about control, who is going to control the system.”

In several instances, the United Nations has ignored a judge’s orders to produce documents or have officials testify about how decisions were reached. In one case, the judge ordered the organization to pay $20,000 in compensation for the mistreatment of a translator who questioned why he was not promoted.

Part of the problem here is that the U.N. is not very good at policing itself, either as a matter of institutional design or institutional culture.  And because the U.N. refuses to accept interference from other legal systems, it creates a law-free zone, at least with respect to employment matters.

Scott Paul on Compensating the Victims of Armed Conflict

by Kevin Jon Heller

The following is a guest post by Scott Paul, the Making Amends Campaign Fellow with the Campaign for Innocent Victims in Conflict.  I’m delighted to welcome Scott to OJ; in his previous life, he was was one of my favorite bloggers — a regular contributor to The Washington Note and Bolton Watch.

Mohammad was approaching a checkpoint with his brother in Kunduz in 2008 some hours after an IED explosion. Afghan and U.S. soldiers checked the two brothers and found nothing suspicious. Then something went wrong and suddenly, the Americans were firing into the car. Both men were seriously injured. Mohammed’s brother was shot in the back of the head. When they went to the PRT for help after recovering at the hospital, they were turned away and told, “This is war.” No other explanation followed.

This is war. To lawyers, it means IHL, as the lex specialis for armed conflict, may displace human rights law depending on the nature of the conflict. For Mohammad and his brother, it meant facing recovery, steep medical bills and the loss of their livelihoods without so much as an apology from the Americans, let alone help for getting back on their feet.

States have a general obligation to make reparation for their internationally wrongful acts as per the Draft Articles of State Responsibility; in armed conflict, Additional Protocol 1 to the Geneva Conventions sets out an obligation to compensate for violations of the Conventions. The traditional understanding of these rules is that they detail obligations between states and compel no direct relief for an individual victim of the violations. However, many parties to conflict pass along compensation to the individuals that have suffered harm and the trend in international law is to favor compensation of individual victims based on their needs and inherent dignity. The Rome Statute of the ICC now provides for direct compensation out of the Victims’ Trust Fund, albeit not by a responsible state. In Nemariam v. Ethiopia, the U.S. Circuit Court for D.C. went as far as to conclude, in the context of a forum non conveniens motion, that the Ethiopia-Eritrea Claims Commission was an inadequate alternative forum to U.S. courts because it only offered victims indirect remedies; while not an authoritative statement on international law, Nemariam represents the rapid shift from sovereign prerogatives toward victim’s rights currently that is taking place.

Whether the individual or her state benefits, that a party to armed conflict has an obligation to make compensation for violations of international law is widely agreed…

Joan Donoghue to Fill Vacancy at the ICJ

by Roger Alford

Joan Donoghue, the Principal Deputy Legal Adviser in the Department of State, has been selected to be the next United States Judge for the International Court of Justice, according to reliable sources. Donoghue will replace Thomas Buergenthal, who has ably served as a judge on the ICJ since 2000.

Donoghue is a career State Department lawyer chosen by the US national group of the PCA, which pursuant to Article 4 of the ICJ Statute is tasked with nominating candidates to the ICJ.

Donoghue is a relative unknown outside government circles, but is very respected within the State Department. Indeed, in 2009 she was Acting Legal Adviser prior to Koh’s confirmation. In the early 1990s Donoghue wrote a handful of articles, most of them dealing with sovereign immunity, that have received some scholarly attention, but not much. She graduated from Berkeley Law School in 1981 and has been at the State Department since the early 1980s.

Donoghue was chosen over the two other top candidates, Lucy Reed, Freshfields partner and past president of the ASIL, and David Caron, the current president of the ASIL and professor at Berkeley. There is no doubt that Reed and Caron are higher profile choices and also would have been outstanding judges. Both Reed and Caron would have fit the Tom Buergenthal or Theodor Meron model of appointing superstars in the international field, while Donoghue is closer to the Schwebel model of choosing a State Department insider.

I am biased, but it does not take much imagination to determine how the committee chose Donoghue over Reed and Caron. The US national group that made the decision includes the current Legal Adviser, Harold Koh, and three past Legal Advisers, David Andrews, John Bellinger, and former ICJ judge Stephen Schwebel. Donoghue was an extremely safe choice for the State Department lawyers to make. Indeed, one seriously doubts that Donoghue will be voting against the United States any time soon.

Padania Beats Kurdistan in World Cup Final!

by Chris Borgen

Padania’s victory was not in the football (American translation: “soccer”) World Cup being played in South Africa but in the one that was just played in Gozo. You know, the Viva World Cup, the tournament among the unrecognized states of the world.

The World Cup being played in South Africa is sponsored by FIFA, the Federation Internationale de Football Association, the governing body of international soccer that is an association of the national football leagues from around the world. But, as author Steve Menary put it, there are “the lands that FIFA forgot,” such as the Turkish Republic of Northern Cyprus, Gozo, Occitania, Somaliland, and, of course, three-time world (?) champions Padania. (No Transnistria, but Sealand is an Associate Member.) The Viva World Cup is organized by the NF-Board (see also wiki), which may have originally stood for “Non-FIFA Board” but is now referred to as the “New Federation Board.”

According to the EUObserver, the NF-Board

is also in contact with football associations in Abkhazia and South Ossetia in Georgia, the Basque Country in France and Spain, Chechnya in Russia, Nagorno-Karabakh in Azerbaijan and Transnistria in Moldova about future participation. Kosovo, which is recognised by 22 EU member states, is trying to get into the official football body, Fifa, instead.

Clearly, if Kosovo has the opportunity move up FIFA play, they’ll try to do so. FIFA accreditation is like statehood recognition: it is the gold standard for international relations. As for those who remain in the coalition of the unrecognized, while one of the NF-Board co-founders says the league eschews politics, I’m not sure the teams got the memo:

NFB co-founder and football historian Jean-Luc Kit told EUobserver that the games do not have a political agenda, other than to promote mutual understanding.

“We are allergic to politics. If anybody tries to make a political or religious statement during a match, then we stop the match,” he said. “We have never changed a border with a game of football.”

The teams do get to wear their ‘national’ colours, fly their flags and sing their anthems before each game, however… [snip]

Viva World Cup participants are not shy about its political connotations.

“It’s important politically for us to take part. We are trying to take part in all international events and organisations. But we are being systematically blocked by the Greek Cypriot administration,” Havva Ulgen, a Brussels-based envoy for the Turkish Republic of Northern Cyprus, said. Her team is not playing this year due to a “technicality.”

I’m curious as to what kind of technicality can prevent an entity that already has Security Council resolutions (541 and 550) calling on all UN members not to recognize it as a state from playing in a league of national regions and unrecognized states. That must be some technicality.

Anyway, the next Viva World Cup is in 2012.  Unlike the FIFA World Cup, which is held every four years, the Viva World Cup is every two years, perhaps because alot can happen to an unrecognized region in four years… I’m looking at you Kosovo, South Ossetia, and Abkhazia! The next Viva World Cup will be in Iraqi Kurdistan. I think smart money will be on Padania, the Brazil of the unrecognized. (OK, I know this year Brazil may not be the Brazil of the recognized, but you get my point.)

Why the VCLT Does Not Save Understanding Seven

by Kevin Jon Heller

Both Marko and Joanna Harrington (in comments) have relied on Article 31 of the Vienna Convention on the Law of Treaties to justify the idea that the Court will have to rely on understanding seven to interpret new Article 8bis, the idea being that the adoption of the understandings by consensus is a subsequent agreement that Article 31 makes relevant to the Rome Statute’s context.  That argument, however, is inconsistent with the plain language of Article 31:

1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty; any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.

3. There shall be taken into account, together with the context: any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions.

Notice the highlighted language — a subsequent agreement is binding under Article 31 only if all of the parties to a treaty accept that agreement.  That’s an obvious requirement; a subset of the parties to a multilateral treaty cannot decide to change the terms of the treaty without the others’ consent.  But it’s a requirement that is fatal to understanding seven, because there were at most 80 of the 111 States Parties present when the understandings were adopted by consensus.  Nearly 30% of the parties to the Rome Statute have thus not accepted the understandings — which means that understanding seven cannot be binding under Article 31.

There is, of course, one exception to the rule that a subset of the parties to a multilateral treaty cannot change its terms without the consent of all of the other parties — namely, where the treaty itself provides for such non-unanimous changes.  That is exactly what Article 121(3) of the Rome Statute does with regard to amendments:

The adoption of an amendment at a meeting of the Assembly of States Parties or at a Review Conference on which consensus cannot be reached shall require a two-thirds majority of States Parties.

There is a strong argument that Article 121(3) is poorly drafted — read literally, it would allow 10 States Parties to adopt an amendment on behalf of all 111 if only 10 were present at a particular moment during an ASP meeting or at a Review Conference.  But at least Article 121(3) is in the Rome Statute.  Nothing in Article 121 provides that a subset of the ASP can adopt an understanding by consensus.  So, again, understanding seven can be binding on the Court only if qualifies as a subsequent agreement under Article 31 of the VCLT — and given that it was adopted by less than 75% of the States Parties, it obviously does not.

Marko Milanovic on Understandings

by Kevin Jon Heller

Marko posted the following long response to my previous post on understandings.  I’m promoting it to the main page to make sure everyone reads it.

Kevin,

Thanks so much for your post. Not only is this issue fascinating in its own right, there are also several fundamental, more conceptual questions here that sort of poke their head through. Let me try to respond:

(1) First, the word ‘binding’ that I used in my previous comment was inappropriate, or at the very least misleading. I didn’t mean to say that the understandings were themselves binding as a source of applicable law. Rather, they are relevant considerations for the interpretation of the amendments, which are binding. In other words, an understanding of this type is not itself ‘law’, but it is something that helps us see what the law means. They are ‘binding’ on the Court itself to the extent that the process of interpretation makes them such, not because they constitute applicable law. And because they are not ‘law’, they are neither valid nor invalid, but just constitute the agreement of states on how a particular text, which they adopted, is to be interpreted.

This brings me to two fundamental points: how does one conceptualize the Statute vis-a-vis general international law; and how does one conceptualize the process of interpreting the Statute.

(2) In your response to my comment in the previous thread, you said that the Rome Statute is a ’self-enclosed system,’ and that it could not be amended by understandings. I do agree on the amendment point – but note the philosophical or ideological position that you take with regard to the Statute, that it is ’self-enclosed.’ I myself do not consider it such. Rather, my own ideological position is that it forms a part of a reasonably coherent system of international law, and that the rules of that system apply to it as well, both within and without. This is also, I think, how states see it.

But however you look at it, the basic ‘rule’ about interpreting the Statute (or indeed any legal instrument, domestic or international) must be external to it, because one would first need to interpret the Statute to see what that rule was, which would logically be a circular operation.

Are the Aggression “Understandings” Valid?

by Kevin Jon Heller

Readers who have been following the Review Conference are most likely aware that the delegates adopted by consensus seven “understandings” concerning aggression in addition to a definition of the crime, the conditions of jurisdiction of the crime, and the elements of the crime.  I believe that those understandings have no actual force and should be ignored by the judges when they begin to apply the new aggression provisions.  In this post I will explain why.

The understandings themselves are very different.  Here I want to focus primarily on the seventh understanding, which was proposed by the United States:

It is understood that in establishing whether an act of aggression constitutes a manifest violation of the Charter of the United Nations, the three components of character, gravity and scale must be sufficient to justify a “manifest” determination. No one component can be significant enough to satisfy the manifest standard by itself.

If valid, this understanding directs the Court to adopt a particular interpretation of the “manifest violation” requirement in new Article 8bis(1).  That is not the only possible interpretation of the requirement; nothing in Article 8bis(1) itself prevents the Court from balancing the three factors — for example, finding a particularly grave use of force to be a manifest violation despite its small scale. Understanding seven thus directly affects the substantive definition of the crime of aggression.  Indeed, Harold Koh took precisely that position today, telling the press that “[t]he United States considered the definition of aggression flawed, but a number of important safeguards were adopted. Understandings were adopted to make the definition more precise, to ensure that the crime will be applied only to the most egregious circumstances.”

Can an understanding do that?  I’m skeptical.  First, we should note that nothing in the Rome Statute contemplates “understandings,” much less provides that an understanding can modify the substantive definition of a crime within the Court’s jurisdiction.

Second, if understandings are — to quote my friend Marko Milanovic — “[f]or all practical purposes… as binding as the text of the Statute itself,” they directly contradict the text of the Rome Statute.  To begin with, understandings would then be a source of law on which the Court would have to rely when interpreting the Rome Statute.  But nothing in Article 21 of the Statute, “Applicable Law,” permits reference to understandings,,,

Oklahoma’s Unnecessary Law to Ban Citation of Sharia and International Law

by Julian Ku

According to news reports, Oklahoma voters will consider a proposed amendment to their state constitution this fall that would ban “an local courts from considering Shariah or other international law in their rulings.” I have little doubt it will pass, and that (since it is an amendment to the OK Constitution) it is constitutional.  But it is really unnecessary and overbroad. Indeed, it could hurt Oklahoma in some non-trivial ways, especially with regard to international business transactions and foreign investment.  Here is the meat of the proposed amendment:

C. The Courts provided for in subsection A of this section, when exercising their judicial authority, shall uphold and adhere to the law as provided in the United States Constitution, the Oklahoma Constitution, the United States Code, federal regulations promulgated pursuant thereto, established common law, the Oklahoma Statutes and rules promulgated pursuant thereto, and if necessary the law of another state of the United States provided the law of the other state does not include Sharia Law, in making judicial decisions. The courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international law or Sharia Law. The provisions of this subsection shall apply to all cases before the respective courts including, but not limited to, cases of first impression.

(Emphasis added). The amendment is overbroad because it does not define “sharia law,” and appears to prohibit Oklahoma courts from considering international law or any other kind of foreign law in their decisions.  So, a contract which selects German law, but is litigated in an OK court (like Campbell v. AIG, 976 P.2d 1102 (1999)), would be interpreted contrary to the parties’ clear intent. And a case which involves principles of international law to determine river boundaries, like Hanes v. State, 973 P.2d 330 (1998), could not be decided under those principles.

The amendment is also unnecessary because Oklahoma law (like many states) already permits courts to consider particular applications of foreign law to determine whether they violate the public policy of the forum.  And if there is a big problem with Sharia law in Oklahoma, then the Legislature can address that problem if and when it arises.

Having said all of this, what is interesting is that Oklahoma voters will likely pass this amendment.  As a constitutional amendment, I assume Oklahoma’s legislature is stuck with it, and Oklahoma courts as well. Indeed, there is no obvious basis for a constitutional challenge that I can think of offhand.  This means that we may see some odd litigation and judicial decisions down the road out of Oklahoma. And it means that most foreign investors should be extremely wary of assenting to the jurisdiction of Oklahoma courts.

Israel’s Idea of an “Independent” Inquiry into the Attack on the Flotilla

by Kevin Jon Heller

Someone should tell Mr. Netanyahu that he is supposed to wait until after the inquiry to announce its predetermined findings:

Prime Minister Benjamin Netanyahu said at the start of Monday’s cabinet meeting that the main goal of the Gaza flotilla probe is to prove to the world that the Israel Navy operation on the Gaza-bound aid ship was appropriate and met international standards.

“The government decision will make it clear to the world that Israel is acting legally, responsibly, and with complete transparency,” said Netanyahu.

Kind of puts Israel’s desperate hand-wringing about the Goldstone Report into perspective, doesn’t it?

Greg Gordon on the Review Conference and Aggression

by Kevin Jon Heller

The following is a guest post by Greg Gordon, Associate Professor of Law and Director of the Center for Human Rights and Genocide Studies at the University of North Dakota.  He attended the Review Conference on behalf of the International League for Human Rights.

A VIEW OF THE AGGRESSION AMENDMENTS FROM KAMPALA

Having been on the ground in Kampala, my take on the ICC aggression amendments is quite different from Kevin’s. Let me begin by saying that we could have very easily had no operationalization of the crime at all. Mere adoption of a definition – a largely hollow gesture – was a distinct possibility. Kevin’s analysis of 15bis is essentially correct but I think some contextualization is in order.

First, the fact that the two non-Security Council trigger mechanisms exist at all is a minor miracle. Many believed we would walk away from Kampala with only “Definition Plus” – with the “Plus” meaning Security Council trigger only. After all, as I said, it was entirely within the realm of possibility that we would have nothing other than a definition (so even “Definition Plus” seemed like a positive outcome – the fortnight was quite an emotional rollercoaster!).

Second, not only were the additional two trigger mechanisms preserved, but we were able to secure the so-called “green light” option (allowing the Prosecutor to investigate in the absence of a Security Council determination of aggression – provided six months has passed, the Pre-Trial Division has given the investigation its blessing, and the Security Council has not issued an Article 16 resolution suspending it for 12 months). That is clearly preferable to the “red light” option which would have killed any investigation ab initio without a Security Council determination of aggression. Moreover, the filter mechanism could have been more onerous and less efficient as it might have had to go through an external body, such as the International Court of Justice or the General Assembly (these were distinct green-light possibilities going into the Conference). Similarly, the Security Council could have been granted one-time, case-kill veto power but was instead limited to its Article 16 power. Believe me, this represented a tremendous amount of work and compromise. The Security Council P5 nations and most European countries were against the entire notion of Article 15bis.

In that regard, it is also important to consider the opt-out regime. I think this was a fait accompli, regardless of what had happened at the Conference, given Article 121(5), which declares: “Any amendment to articles 5, 6, 7 and 8 of this Statute shall enter into force for those State Parties which have accepted the amendment one year after the deposit of their instruments of ratification or acceptance. In respect of a State Party which has not accepted the amendment, the Court shall not exercise its jurisdiction regarding a crime covered by the amendment when committed by that State Party’s nationals or on its territory.” The rub is in the second sentence. Apparently, one or more of the Security Council P5 nations managed to have this clause inserted at the last minute before the close of the 1998 Rome Conference (American fingerprints are all over this!). Among other things, they must have been thinking about protection from any future aggression amendment (expressly contemplated by Article 5(2)).

There was an argument that only Article 121(4) applied to the proposed aggression amendments. Article 124 provides: “Except as provided in paragraph 5, an amendment shall enter into force for all States Parties one year after instruments of ratification or acceptance have been deposited with the Secretary-General of the United Nations by seven-eighths of them.”…

Brett Schaefer’s Critical (from the Right) Take on the ICC Review Conference

by Julian Ku

It is worth also considering the views of those critical of the entire ICC effort to the define aggression and bring it within the ICC Statute.  Brett Schaefer at Heritage offers this final take, which he calls the U.S. effort a qualified success due to its ability to delay implementation and to insert “understandings” into the ICC Statute.

[T]he U.S. was able to insert several “understandings” into the resolution. These understandings affirm that the crime of aggression does not limit or prejudice existing or developing rules of international law for purposes other than the statute; state that the resolution shall not be interpreted as “creating the right or obligation to exercise domestic jurisdiction with respect to an act of aggression committed by another State”; emphasize that a determination of an act of aggression must weigh “all of the circumstances of each particular case” including the gravity of the acts and their consequences; and assert that the character, gravity, and scale of a crime of aggression must all be sufficient to meet the standard of a “manifest” violation of the U.N. Charter. Taken together, these understandings should help guide the court in dismissing lesser, frivolous, or politically motivated allegations of aggression and protect military missions based on self-defense, humanitarian intervention, or other legitimate purposes consistent with the U.N. Charter.   

Harrington’s Final Take on the Kampala Review Conference

by Julian Ku

Having called her out a few hours ago not knowing she was on her way back from Uganda, I thought I should excerpt Joanna Harrington’s final post on the Review Conference, where she offers another great account of the final negotiations.  She also offers this final take, which is more positive than Kevin’s take:

For some, it will undoubtedly seem self-defeating to define the crime of aggression and agree on the modalities for its prosecution only to defer effective entry into force and allow states to opt out of the regime. But it is important to recall that international law, including international criminal law, is a slowly evolving and maturing phenomenon. Instant gratification is not within the culture of international law.

But we have moved forward along a continuum marked by the abortive attempts to prosecute the German Kaiser after WWI for a “supreme offence against international morality”, to Nüremberg’s successful if limited prosecutions of “crimes against peace”, to the eventual establishment of the ICC in 1998 after the Cold War years stymied earlier efforts to establish a system of international criminal justice. From this perspective, and to use an analogy that comes to mind after taking four flights to return home, the caveats and delays built into the Kampala amendments are the last few twists and turns on the final approaches to the destination.

Those impatient to see the ICC exercise its jurisdiction over the crime of aggression may take comfort that it is now simply a matter of time. Others may, however, welcome the delay, viewing the ICC’s jurisdiction with respect to crimes against humanity, war crimes and genocide as of prime importance and a priority for its efforts.

The Sadly Neutered Crime of Aggression

by Kevin Jon Heller

I’ve long supported providing the ICC with jurisdiction over the crime of aggression.  Call me old-fashioned, but I believe there is a great deal of truth to the IMT’s insistence that “[t]o initiate a war of aggression… is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.”  We cannot collapse the distinction between the jus ad bellum and the jus in bello, but it is no doubt true that war crimes and crimes against humanity are particularly likely to be committed in the context of an illegal war.  (See, e.g., Iraq.)  Prevent the illegal war, you prevent the subsequent crimes.

The good news: the Review Conference has adopted a definition of aggression.  The bad news: the conditions governing the exercise of jurisdiction make it very unlikely that any significant act of aggression will ever be prosecuted.  Here is the relevant paragraph, 15 bis, concerning non-Security Council referrals:

4. The Court may, in accordance with article 12, exercise jurisdiction over a crime of aggression, arising from an act of aggression committed by a State Party, unless that State Party has previously declared that it does not accept such jurisdiction by lodging a declaration with the Registrar. The withdrawal of such a declaration may be effected at any time and shall be considered by the State Party within three years.

5. In respect of a State that is not a party to this Statute, the Court shall not exercise its jurisdiction over the crime of aggression when committed by that State’s nationals or on its territory.

This is, to say the least, a very restrictive provision.  The following chart explains when the ICC will have jurisdiction over an act of aggression.  The two actors refer to the state committing aggression (state of nationality) and the state against whom aggression is committed (territorial state). “OO” refers to a State Party that has opted out of jurisdiction.

  • State Party & State Party —–> Jurisdiction
  • State Party & State Party OO —–> Jurisdiction
  • State Party & Non-State Party —–> No Jurisdiction
  • State Party OO & State Party —–> No Jurisdiction
  • State Party OO & State Party OO —–> No Jurisdiction
  • State Party OO & Non-State Party —–> No Jurisdiction
  • Non-State Party & State Party —–> No Jurisdiction
  • Non-State Party & State Party OO —–> No Jurisdiction
  • Non-State Party & Non-State Party —–> No Jurisdiction

In other words, the ICC will only have jurisdiction over an act of aggression committed by a State Party who has accepted (by omission) that jurisdiction and only when that act is committed against a State Party.

There are a number of problems with this jurisdictional regime, which deviates substantially from the regime that governs the other crimes within the ICC’s jurisdiction.  First, the Court will have no jurisdiction over a State Party’s act of aggression against a non-State Party, even though it would have jurisdiction over war crimes and crimes against humanity committed as a result of that act.  That is an unfortunate asymmetry.

Second, it permits States Parties to take an a la carte approach to the ICC’s jurisdiction.  I could be wrong, but I find it unlikely that any state that routinely uses force against other states (or against non-state actors located in other states) will not opt out of aggression.  Why wouldn’t they?  There may be some reputation cost for a state not to be a part of the ICC, but it is difficult to believe that there will be any such cost for a state that joins the ICC but limits the Court’s jurisdiction over it to war crimes, crimes against humanity, and genocide.  The ICC’s jurisdiction over aggression will thus almost certainly be limited to states that do not have either the motive or the wherewithal to commit the crime in the first place.  (To be fair, the opt out provision does eliminate a possible disincentive for a state to join the ICC, which is a good thing.)

Third — and this is a serious problem — it permits States Parties to take a completely hypocritical approach to aggression.  As the chart indicates, a State Party that opts out of aggression cannot be prosecuted if it commits an act of aggression against a State Party that has not opted out.  But the converse is not true: States Parties that have not opted out could be prosecuted for acts of aggression against an opting-out State Party.  An opting-out State Party is thus protected against aggression by other States Parties but is permitted to commit acts of aggression itself, even against States Parties that have not opted out.  If anyone can think of a principled rationale for such asymmetry, let me know.

Fourth, and finally, the ICC will not have jurisdiction over a non-State Party that commits an act of aggression against a State Party, even though the Rome Statute specifically provides such territorial jurisdiction for war crimes, crimes against humanity, and genocide.  Perhaps that concession was necessary to gain the support of some States Parties, although I don’t understand why a State Party (opt in or opt out) would want to deprive the ICC of jurisdiction over an act of aggression committed against itself by a non-State Party.  But I do not see any legal rationale for the limitation.  Dapo Akande has argued that aggression is different than the other crimes in terms of the territorial state’s right under international law to transfer its jurisdiction to an international tribunal.  I rarely disagree with Dapo — and I feel great trepidation when I do.  But I disagree with him here.  It’s a complicated argument, one that I hope to discuss in a later post.  Suffice it to say for now (perhaps) that I don’t believe that applying normal principles of territorial jurisdiction to the crime of aggression would require the Court to adjudicate the “the rights or responsibilities of a non-consenting and absent third State” any more, or any differently, than it already does for a crime against humanity involving a non-Party state agent.  After all, just as the crime of aggression requires proof that a state engaged in an act of aggression, a crime against humanity requires proof that the crime took place “pursuant to or in furtherance of a State or organizational policy to commit such attack.”

You will hear many voices in the coming weeks praising the Review Conference for breaking the Security Council’s stranglehold on determining whether an act of aggression has occurred.  There is more than a grain of truth to that; it is indeed important that the ICC will decide that issue for itself in situations within its jurisdiction.  But the “within its jurisdiction” qualification is important.  As the above discussion indicates, it is an open question how many acts of aggression the ICC will ever have the opportunity to adjudicate.

ICC Review Conference: Early Reports of an Ingeniously Confusing Deal on Aggression

by Julian Ku

It looks like the ICC Review Conference has reached consensus on a definition of the “crime of aggression” and the mechanisms governing the ICC Prosecutor’s jurisdiction over such a crime.  According to the AFP, the new amendment to the Rome Statute provides:

[T]hat the UN Security Council will hold primary responsibility for determining whether an act of aggression has occurred.

But where the Security Council takes no action, the ICC prosecutor or a state party could initiate an aggression case.

The amendment provides for the Security Council to be able to halt any aggression case initiated by the prosecution or by a state party by passing a resolution to that affect.

But such a resolution would need to be renewed every 12 months to stop the prosecution going ahead.

ICC states can exempt themselves from jurisdiction over the crime of aggression by submitting a declaration of non-acceptance to the court. Citizens of countries not party to the court will also be immune from prosecution.

Those exemptions, however, will not apply in cases where the Security Council has determined aggression has occurred.

I await more learned and on the ground reports on the details of the new amendment (Where are you Joanna Harrington?!?). From this report, the amendment sounds like an ingeniously confusing system that gives the Security Council primacy in the initiation of a prosecution, but would still permit an ICC Prosecutor to act against the wishes of the Council.  But it would also permit states to exempt themselves, unless the UNSC disagrees.  And it will go into effect sometime in 2017, after President Obama’s second term expires, so he won’t have to worry about it. Very nice work by the U.S. team in Kampala. This isn’t exactly what they wanted, but it is not a terrible result either.

Universities and Development in Poor Countries

by Kenneth Anderson

Over at AidWatch (William Easterly’s blog), guest blogger Moussa P. Blimpo puts up a post on the role of universities in development in poor countries, in Africa and elsewhere.  There are a lot of tradeoffs, explicit and implied – should universal primary education take precedence over university education, for example.  What is the role of universities in poor countries in training a local elite?  Don’t the graduates simply emigrate and take their skills with them?  Blimpo, who has just earned his PhD from NYU, asks:

Why is it that so little attention and funding is given to universities?  With practical training, wouldn’t these young men and women be the one who will create jobs tomorrow? Shouldn’t African universities be strengthened to enable Africans to think about African problems?

The comment thread is particularly interesting, with numbers of people contesting that universities are the right priority.  I have mixed views.  In another part of my (non-Predator drone) life, I’m a senior fellow and board chair of the US arm of the Rift Valley Institute, which does work on the Rift Valley region in Africa, with particular attention to Sudan.  I’m not a fellow on account of my experience in Africa, which is zero, but on account of my long background in development and particularly development finance organizations – not to mention experience in international NGO law in a practical way – but these questions come up for RVI.  Its mission includes local education, and there is a particular concern about, in the local setting, “elite” education rather than simply primary education.  It is a hard, if not impossible, sell to funders, however, because the results are so diffuse, long term, and intangible.

The Transnationalist Obama Administration, Except on Treaties

by Julian Ku

John Bellinger has a nice op-ed today pointing out that the 112th Congress is on course to set a record for the fewest treaties ratified during a single session of Congress.

Despite the presence of 59 Democrats, the Senate has approved only one treaty (a tax agreement with France) during the 112th Congress. The Obama administration must make more vigorous efforts with respect to the many important treaties awaiting Senate approval.

In fact, as I pointed out back in February and in May, the administration has only submitted three (now four, including the new START arms reduction treaty) treaties to the Senate so far.  As Bellinger points out,

The Obama administration took office promising a “return” to the U.S. commitment to international law. Obama officials have publicly supported Senate passage of various multilateral conventions, including the Comprehensive Test Ban Treaty and the Convention on the Elimination of Discrimination Against Women (neither of which the Bush administration supported). But as time has passed, the Obama administration’s commitment to the ratification of treaties has taken a back seat to health care and other legislative priorities. Sadly, the White House made no effort to obtain Senate approval for the Law of the Sea convention last year, when the political opportunity for passage was greatest (because the Democrats had both a cloture-proof majority for several months in a non-election year and political momentum after Obama’s win).

Meanwhile, several other important treaties await Senate action, including agreements to limit illegal trafficking in firearms, dumping of waste at sea and production of toxic chemicals. All of these deserve vigorous support from the administration.

I actually don’t mind that the Administration hasn’t submitted the Law of the Sea Treaty or CEDAW or other treaties since I am unsure whether those treaties are really all that important or necessary. But the fact that the Administration likely to submit fewer treaties during its first four years than the first George W. Bush Administration should caution us against simplistic assessments of the two presidents as being either pro or anti-international law.

Will the Gaza Flotilla Dispute Go to the ICJ?

by Julian Ku

The Jerusalem Post reports that the Turkish government, in collaboration with Hamas, is considering applying to the International Court of Justice over the Gaza Flotilla incident.

The agreement to work together against Israel reportedly came in a Thursday telephone conversation between Turkey’s justice minister, Sadullah Ergin and his Hamas counterpart, Muhammad Faraj Al-Ghoul.

As the article points out, it is far from clear how the ICJ could get a case involving Israel and Turkey because neither state has accepted the compulsory jurisdiction of the ICJ.  (For that matter, neither state has accepted the jurisdiction of the ICC either).  The only way this case gets to the ICJ is as an advisory opinion referral.  This could happen. I wonder if Israel would put up a defense. They have some pretty strong legal arguments. But is the ICJ biased against Israel? The 2004 Wall judgment doesn’t inspire confidence from Israel’s point of view, but the membership of the Court has changed. And I think that Israel would have a better chance at the ICJ than in the court of world media opinion.

Life Sentences for Two Genocide Convictions at ICTY

by Peggy McGuinness

The news out of The Hague today is the genocide convictions of Popovic and Beara, both of whom the ICTY trial chamber found to be key leaders of the Srbrenica massacre of 1995.  Each was sentenced to life imprisonment, among the longest sentences for the ICTY. Lesser convictions and sentences were handed down to five other former Bosnian Serb officials. Here’s the AP story and an excerpt from the ICTY news release:

Seven former high-ranking Bosnian Serb military and police officials were today convicted by Trial Chamber II of a range of crimes committed in 1995 in relation to the fall of the enclaves of Srebrenica and Žepa, eastern Bosnia and Herzegovina.

Vujadin Popović, the Chief of Security of the Drina Corps of the Bosnian Serb Army (VRS) and Ljubiša Beara, Chief of Security in the VRS Main staff were found guilty of genocide, extermination, murder and persecution and sentenced to life imprisonment. Drago Nikolić, the Chief of Security in the Zvornik Brigade, was found guilty of aiding and abetting genocide, extermination, murder and persecution and sentenced to 35 years’ imprisonment. Ljubomir Borovčanin, Deputy Commander of the Special Police Brigade of the police forces was convicted of aiding and abetting extermination, murder, persecution and forcible transfer (Judge Kwon dissenting) under Article 7(1) of the Statute and, as a superior, of murder as a crime against humanity and as a violation of the laws of customs of war under Article (3). He was sentenced to 17 years’ imprisonment. Radivoje Miletić, the Chief of the Administration for Operations and Training at the VRS Main Staff was found guilty of murder by majority, persecution and inhumane acts (forcible transfer). He was sentenced to 19 years’ imprisonment. Milan Gvero, the Assistant Commander for Moral, Legal and Religious Affairs of the VRS Main Staff, was found guilty of persecution and inhumane acts and acquitted of the two counts of murder and that of deportation. He was sentenced to 5 years’ imprisonment. Vinko Pandurević, Commander of the Zvornik Brigade, was found guilty of aiding and abetting murder (Judge Kwon dissenting), persecution and inhumane acts. He was acquitted of charges of genocide, extermination and deportation. He was sentenced to 13 years’ imprisonment.


Today’s judgement concerns the largest trial to date held before the Tribunal and deals with a wide range of crimes committed by the Bosnian Serb forces against Bosnian Muslims during and following the fall of the former UN protected zones of Srebrenica and Žepa in July 1995.

The full text of the court’s summary of the judgment is here.

Horton and Alston Talk Drones (and Murder and Experimentation at Gitmo)

by Kevin Jon Heller

I haven’t had enough time to blog about Philip Alston’s excellent report on drone warfare, but interested readers should check out today’s conversation between Scott Horton and Alston at Harpers.com.  Here’s a taste of one of Alston’s answers:

Of course, calling something a war crime doesn’t make it so–the question is whether it is recognized as such under international law–and your question raises a broader concern and reflects the deeply disturbing approach of the United States to the laws of war since 9/11. The U.S. has put forward the novel theory of a brand new “law of 9/11” under which it can sidestep the laws of war or re-interpret them when it suits. This approach is no doubt appealing and convenient in the short term. But it will inevitably return to bite the U.S., and will undermine the international legal framework on which the U.S. relies in so many other contexts. In this particular instance, if the U.S. were to insist that use of lethal force in an armed conflict by a civilian who is a citizen of another country is a “war crime” just because that person is a civilian, it won’t have a leg to stand on if another state prosecutes a CIA agent involved in the drone killing program on exactly the same grounds.

More broadly, in asserting an ever-expanding “right” to target and kill individuals anywhere in the world, the U.S. completely undermines the rules it has helped craft over half a century designed to prevent other states from carrying out extrajudicial killings. The rules the U.S. asserts today will surely be invoked by Russia, China, Iran, or any number of other countries tomorrow.

You can read the whole thing here.

So How is the ICC Review Conference Going?

by Julian Ku

I couldn’t make it to Kampala for the review conference (not that anyone invited me), but luckily, the magic of the internet means I don’t have to go to find out how things are going.  For two really different takes on the negotiations, I highly recommend you follow EJIL Talk’s ongoing coverage here and Brett D. Schaefer (of the Heritage Foundation) here.  One interesting note: Harold Koh has become the unlikely leader of a U.S.-China-Russia movement to limit the ICC Prosecutor’s ability to initiate investigations of the crime of “aggression.”  It also seems that Koh’s attempt to limit the ICC’s “aggression” jurisdiction is going to fail, but it is not clear yet. Stay tuned!

Does the World Need a CyberWarfare Arms Limitation Treaty?

by Julian Ku

Now that the U.S. military has a CyberCommand, is it time for the U.S. to begin talks on a CyberWarfare Arms Limitation Treaty with Russia and other nations? (CALT?)  The new Cyber Command chief says…maybe.  Stewart Baker at Volokh, and former Homeland Security official in the Bush administration and author of a forthcoming book Skating on Stilts, thinks this is a really bad idea. The problem is that the U.S. military is highly legalized, and likely cyber-enemies are not.

The rise of JAG authority over every detail of warfighting means that the Pentagon would be exquisitely sensitive to arguable violations of international law in carrying out operations in cyberspace.  Our guys would sit with their fingers poised over the “return” button for hours while the JAGs were trying to figure out whether the Belarussian remarks in committee were a consensus or an individual interpretation of article 42bis.  And nobody else would give a damn what the treaty said, because they wouldn’t expect to get caught and because even implausible deniability can’t be rebutted with the certainty needed to make a legal case, let alone send missiles in response.

This seems sensible, but I don’t know enough about cyberwarfare to know if he’s right. And his description of the power of the JAGs over U.S military operations sounds right to me.

Conversation at Bloggingheads.tv

by Kevin Jon Heller

A few days ago, I recorded a conversation for Bloggingheads.tv with Mark Leon Goldberg of the invaluable UN Dispatch.  It was a wide ranging discussion — and long, 45 minutes — covering everything from the Gaza blockade to the definition of aggression to drone attacks.  Something tells me, though, that the only thing people will remember is my description of the US as the concern troll of the ICC’s Review Conference…

You can watch the conversation here.  Sorry about the low quality video!  I’m much cuter in person.

More Questions for Ken

by Kevin Jon Heller

I know Ken’s busy finishing his book and can’t yet reply to Marko’s remarkable post.  (And personal congrats, Marko, on the lectureship.  Nottingham is lucky to have you!)  When he does, I hope he’ll address the criminal-law aspects of his belief that self-defense justifies targeted killings outside of armed conflict.  I have two scenarios in mind, borrowed and adapted from Marko’s post.

Scenario 1: The CIA kills Mephistopheles in Pakistan using a drone, because the Pakistani military is either unwilling or unable to prevent him from carrying out his dirty-bomb attack on a US city.  Pakistan somehow manages to get their hands on the CIA agent who piloted the drone and charges him with murder in a domestic Pakistani court.  What is the role of self-defense in that prosecution?  Does it divest the court of jurisdiction?  Is it an affirmative defense?  And who invokes it — the CIA agent?  The US government?

Scenario 2: The CIA kills Mephistopheles in Pakistan using a drone, because the Pakistani military is either unwilling or unable to prevent him from carrying out his dirty-bomb attack on a US city.  Mephistopheles is a US citizen.  A US attorney appointed by a newly-elected Democratic president — one who realizes you must look backward to move forward — charges the CIA agent who piloted the drone with violating 18 USC 1119, the federal foreign-murder statute.  Same questions as above.  What is the role of self-defense in that prosecution?  Does it divest the district court of jurisdiction?  Is it an affirmative defense?  And who invokes it — the CIA agent?  The US government?

Readers who are interested in a preview of Ken’s typically thoughtful approach to US counterterrorism policy can find a lengthy report for the Brookings Institution here.

Judge Goldstone Removed from Hebrew University’s Board of Governors

by Kevin Jon Heller

Despite the increasingly desperate nature of the attacks on Judge Goldstone, I never thought an academic institution would give in to the hysteria:

In response to an enquiry by the Alternative Information Center (AIC) about its reported removal of Judge Richard Goldstone from the Board of Governors, Hebrew University of Jerusalem responded by email that:

“The Hebrew University of Jerusalem revises from time to time its membership roles on its Board of Governors. It recently has been decided to remove from the list of governors a number of members, among them Judge Richard Goldstone, who was an honorary member of the board but for more than a decade has not attended its meetings nor expressed interest in the operations of the board. The purpose of this technical act is to enlist new, active members for the board in place of those who do not play any role on behalf of the University.”

However, on 25 April the online Hebrew language newspaper nrg.co.il quoted the Hebrew University as saying that “honorary membership in the Board of Governors is a position given to people on the basis of actions that justify this at the time. The university possesses no mechanism to annul the membership of honour of a member.”

Hebrew University was further quoted in the above article that following the early 2010 request of a Hebrew University graduate to annul Judge Goldstone’s membership in the Board of Governors due to his participation in the United Nations Fact Finding Mission on the Gaza Conflict, that “the subject was considered and the decision (not to annul) was taken following discussion in a senior forum of the university.”

What a dark and shameful day for Hebrew University.

Marko Milanovic on Self-Defense

by Kenneth Anderson

OJ’s good friend Marko Milanovic has offered a super-substantive response to my brief comments re self-defense in my not-yet-response to Professor Alston’s report on targeted killing and drones.  I will have things to say about that and also my reactions to the interior of the Special Rapporteur’s report – happy to say that I avoided any $100 a day fines by completing the grading, but now face threats to my family from my editors, who have given me a drop-dead date for my US-UN relations book, which, by the way, has turned out to be an Essay in Grand Neoconservativism Redux, but that another time …  I strongly encourage anyone following the targeted killing, drone warfare, self-defense and armed conflict debate to go over to EJILTalk and read Marko’s essay.  I put a little bit below.

However, much more important, we at OJ want to congratulate the University of Nottingham Law School on its shrewd judgment in extending Marko a lectureship there.  That is wonderful news, and our congratulations to Marko as well as his new faculty of law.  Okay, from Marko’s essay:

Four basic scenarios

I’d first like to set out four basic factual scenarios, so that we could get a bit away from the heady heights of abstraction, and thus hopefully facilitate mutual understanding. First, for our present purposes, we need to get IHL out of the picture. In other words, we need to envisage the killing of a suspected terrorist that takes place outside any armed conflict. With that out of the way, the other important contextual element is where the killing takes place, i.e. whether the person being killed was located within or outside the territory of the state which is doing the killing. So:

(1) Imagine an Osama Bin Laden clone, who is equally nefarious, but who had nothing to do with 9/11 and is in no way affiliated with Al Qaeda. Let’s call him Mephistopheles. Old Mephisto has his own terrorist cabal somewhere in Pakistan, and plans an imminent attack on a US city, say with a dirty bomb or something equally horrific. Pakistan’s military is either unwilling or unable to prevent Mephisto from completing the attack, and therefore the US sends a drone which manages to take him out.

(2) For our second scenario, let’s take all of the facts from the first, but with one important difference: while in the first scenario Pakistan does not want to, or cannot prevent Mephisto from conducting his attack, in this scenario Pakistan gives its consent to the US to do its drone strike.

(3) In our third scenario, Mephisto has really outdone himself. Not only is he the mastermind of his own terrorist organization, but he actually operates from a volcanic rock in the middle of the Pacific, a terra nullius which no state claims as its own, and from ships which deliberately do not fly the flag of any state. The US military’s drones still find these ships to be easy targets, and Mephisto’s island base fares no better.

(4) In our fourth and final scenario, Mephisto is a Pakistani national, but he is actually living in the United States, where he has completed doctoral studies in nuclear physics, engineering, or what have you with flying colors, and has maybe even obtained US citizenship. He somehow manages to build a dirty bomb, and decides to put it in a car and drive it all the way to Times Square in New York City, where he intends to detonate it. Fortunately, the US military in Pakistan is informed by Pakistani security services of Mephisto’s plan, and the President authorizes a drone attack (or, perhaps slightly more plausibly, a mere sniper) to take out Mephisto while he’s driving on the New Jersey Turnpike.

All four scenarios involve targeted killings. The first scenario is one of extraterritorial killing, and the territorial state (Pakistan) has not consented to the use of force within its boundaries. The second scenario is also extraterritorial, but the territorial state has in fact consented. The third scenario is likewise extraterritorial, but the killing does not take place on the territory of any state. Finally, the fourth scenario is intraterritorial.

So, what does international law have to say about these scenarios of targeted killing, again all of which take place outside armed conflict?

I have to tell everyone, this is a great essay-post.  I have read it twice now, and have printed it out to read again.  If you are following this discussion, you really need to read this.  I am forwarding it, for example, to lawyer friends in DOS, DOD, DNI, Hoover, Brookings, and the CIA.  But I won’t try to respond to any of this until I get my UN manuscript turned in, however, and finish seriously reading and marking up Philip Alston’s report.

(One other thought – the Goettingen Journal of International Law, an online student edited journal in English for which I’ve written in the past, and had a great experience with its editors, has dropped me a note inquiring about the idea of a special issue or part-issue on drones and targeted killing.  Basically asking for advice.  My sense is that as a purely general topic, it has been done – or by the time a symposium issue could be pulled together – to death and beyond.  So the question is, if you were offering advice to the editors on how to focus a little writing symposium on this topic, how would you do it?  If you have thoughts, on that or, of course, any of the rest of this, please feel free to put them in the comments, and I’m sure the GoJIL editors would appreciate them.)

Please, Can We Stop the Stupid Gaza Piracy Charge?

by Julian Ku

The Gaza Flotilla raid has launched an unbelievable amount of public commentary related to public international law because so much of the debate is framed around the legality of Israel’s raid, its blockade of Gaza, etc.  Some of the discussion has been interesting and useful (see again Kevin’s posts on legality of the blockade).  But then there is the continuing tendency of Israel’s more unhinged critics to keep calling the raid “an act of piracy.”  As I explained before, even if Israel had boarded the ships in Turkish waters and massacred everyone just for fun, it would not be piracy. Yet this hasn’t stopped the following random assortment of Israel critics from continuing to use the stupid piracy charge:

The Foreign Minister of Turkey

Libya’s U.N. Ambassador

Spanish Member of the European Parliament

The Nation

Pat Buchanan

Bill Press

The Canadian Union of Postal Workers (!?!?)

I could go on, but I won’t.  Aside from demonstrating the limits of this blog’s readership the flagrant stupidity of this “piracy” meme reflects a remarkable lack of seriousness among (some of) Israel’s critics about the legality of the raid and the blockade.  So next time you hear the Foreign Minister of Turkey decrying Israel’s violations of international law, for instance, you can feel confident he actually cares nothing at all about international law, and is just looking for a convenient slogan to slam Israel.

IDF: Okay, So Maybe They Weren’t Al-Qaeda After All

by Kevin Jon Heller

This would be amusing, were the Obama administration not backing Israel’s insistence that any investigation into the attack on the flotilla be conducted (read: whitewashed) by Israel itself:

When placed under journalistic scrutiny, the IDF is being forced to admit that its claims about the flotilla’s links to international terror are based on innuendo, not facts. On June 2, the IDF blasted out a press release to reporters and bloggers with the shocking headline: “Attackers of the IDF soldiers found to be Al Qaeda mercenaries.” The only supporting evidence offered in the release was a claim that the passengers “were equipped with bullet proof vests, night vision goggles, and weapons.” A screen capture of the press release is below:

The IDF distributed this press release on June 2. The following  day, it changed the headline, essentially retracting its lurid  accusation.

Not content to believe that night vision goggles signal membership in Al Qaeda, reporter Lia Tarachansky of The Real News Network and I called the IDF press office to ask for more conclusive evidence. Tarachansky reached the IDF’s Israel desk, interviewing a spokesperson in Hebrew; I spoke with the North America desk, using English. We both received the same reply from Army spokespeople: “We don’t have any evidence. The press release was based on information from the [Israeli] National Security Council.” (The Israeli National Security Council is Netanyahu’s kitchen cabinet of advisors).

Today, the Israeli Army’s press office changed the headline of its press release (see below), basically retracting its claim about the flotilla’s Al Qaeda links. The new headline reads: “Attackers of the IDF Soldiers Found Without Identification Papers” (the top of the browser screen still contains the original headline about Al Qaeda). The more Israel’s claims about the flotilla’s terrorist links are challenged, the more they fall apart.

Thoughts on Samantar

by Peter Rutledge

[Peter “Bo” Rutledge is Associate Professor of Law at the University of Georgia Law School and the author, with Gary Born, of International Civil Litigation in United States Courts]

I’ve been thinking a lot about Samantar since its release as I expect it’ll occupy an important place in the next edition of Gary’s and my International Civil Litigation (we’re working on it right now – should be in proof stage by Spring 2011, in book form for Fall 2011 classes). In addition to the several comment, I offer some thoughts on the profoundly unsatisfying decision in the case. To be clear, like Bill and Chimene, I don’t think that the Court necessarily reached the wrong result. Rather, like Roger and Beth, I believe the way it went about resolving the case leaves far too many unanswered questions that, I can attest from recent work on a difficult sovereign immunity case, desperately need some clarification:

1. What’s the scope of the common law immunity for foreign officials? The ultimate section of Samantar can be read to support the notion that this common law immunity survives the FSIA. But prior to Samantar a great deal of confusion persisted among the lower courts over how it operated with respect to such matters as scope of employment, the treatment of highl-level ministers close to the head of state, former employees, and conduct committed in violation of international law. Samantar supplies no guidance on these matters.

2. Whatever the scope, what’s the source of law? Federal common law one might naturally say. But not so fast. How do we square that with the scope of employment prong under the non-commercial tort exception? Some lower court case law suggests that state law, not federal law, informs the question. Other case law looks to the law of the sovereign itself. Consequently, we end up in a situation where different sources of law inform the same inquiry, an unfortunate result.

3. What’s the authority for the federal common law? Most of you are familiar with the very good Seventh Circuit cases arising out of the Enahoro litigation that discuss this question. After Erie and maybe Sosa too, one might reasonably wonder what’s the residual scope of a federal court’s common law making authority in the field. Clearly, there’s some. But just as Sosaleft a lot of people scratching their heads about how extensive it was, this case does too. Of course, one might distinguish between a federal common law to create a cause of action vs federal common law making power to generate an affirmative defense (like immunity). But the defensibility of that distinction depends critically on the value underpinning one’s view of federal common law power. If the underlying value is comity, then perhaps the distinction makes sense. But if the underlying value is separation of powers (or simply a more modest view of judicial lawmaking power), then the two are not so easily distinguished.

4. What do we do about forum shopping? However textually twisted it might have been, the FSIA-based approach to individual immunity at least had the functional value of keeping these cases in federal court. As a result of Verlinden, one could avoid the risk of inconsistent results in federal and state court through the FSIA’s removal provision. But after this case, the risk of forum shopping become rampant – to keep a case in state court, just file align the parties in a way to avoid 1332 removal and structure your causes of action to avoid federal claims. Wouldn’t that be a pretty airtight way of keeping a case out of federal court despite the potentially profound impact of the case on foreign relations (though I agree with Duncan this actually clears a barrier for folks who wish to go the ATS route)? The effect, I suggest, may be greater pressure to find substantive federal common law with preemptive effect in state court (much like we saw in a couple of post-Sabbatino act of state cases)

Unfortunately, the Court simply blew past much of this. Instead of confronting them either in the opinion, or at least some well written separate opinions, they regurgitated the tired old debates over legislative history which don’t meaningfully illuminate things.

Grateful in advance for any reactions (on- or off-line) to these comments as well as, more generally, suggestions in the sovereign immunity chapter in the book. Cheers!

What Goods Are Affected by the Blockade?

by Kevin Jon Heller

I’m not about to get into a debate over whether there is a humanitarian crisis in Gaza; you either think there is or you don’t, and facts won’t matter.  So I thought I would simply post the following chart from that notorious left-wing propaganda outlet The Economist and let readers judge for themselves whether the blockade is designed solely to prevent weapon-smuggling:

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Nasty comments will be deleted.  (And I’ve been impressed by the quality of the debate so far.)

The Civil War and the Blockade of Gaza (a Response to Posner)

by Kevin Jon Heller

In addition to saying kind things about me, which I appreciate, Julian noted in his earlier post that Eric Posner has an editorial in today’s Wall Street Journal that uses Lincoln’s blockade of the Confederate States of America (CSA) to defend the legality of Israel’s blockade of Gaza.  I find the editorial very unconvincing, for two reasons.  First, it provides an unacceptably selective account of Lincoln’s blockade, one that simply ignores the European reaction.  Second, the editorial misconstrues The Prize Cases.  Those are important problems, because the European reaction to the blockade and the Supreme Court’s treatment of it provide a critical qualification to Posner’s thesis that there is “a certain latitude for countries to use blockades against internal as well as external enemies.”  In particular, they indicate that an “internal” blockade of a highly-organized non-state actor like the CSA or Hamas is only permissible if the blockading state is willing to recognize that the non-state actor thereby becomes a belligerent who is entitled to the same privileges as the blockading state itself.

Background: “Insurgent” vs. “Belligerent”

First, some background.  It is important to understand why it matters, for purposes of international law, whether a non-state actor is considered an “insurgent” or a “belligerent.”  The classic discussion of the difference in terms of the Civil War remains Constitutional Problems Under Lincoln, written in 1926 by James Randall, a law professor at the University of Illinois.  Here is how Randall lays out the importance of the distinction (pp. 59-60):

Having noted the controversy concerning the executive measures taken at the outset of the war, we are now led to inquire into the legal character of the conflict itself. Was it a domestic uprising by mere insurgents who owed allegiance to the sovereign power whose authority they were endeavoring to overthrow, or was it a public war between recognized belligerents? In other words, was the struggle a clash between governments, or was it a conflict waged by a combination of individuals against their government?

The legal bearings of this problem were far-reaching. Upon its solution depended the Government’s official attitude toward the Confederate States. The decision as to whether belligerent powers should be accorded to the Southern Government was involved, and this would inevitably engender foreign difficulties in case other nations should adopt a theory of the war at variance with the theory of the Washington Government. The propriety of various acts of the President would be involved also, for the President’s powers and duties in case of insurrection are different from those which obtain in time of recognized war. Many other questions would be involved: the treatment of captured “insurgents” as criminals instead of prisoners of war; the possible punishment of such “insurgents” as traitors, and the confiscation of their property; the use of the municipal power over the territory claimed by the insurgents when such territory should be captured; the legality of Confederate captures at sea, and the disposition to be made of the crews of Confederate warships and privateers. The decision of these and other important issues depended upon the fundamental principle that should be adopted as to what the existing conflict was in its legal character.

Insurrection, it will be readily recognized, is not the same as war. There are varying degrees of disturbances with which a government may be confronted: riot, insurrection; rebellion; civil war. A riot is a minor disturbance of the peace which is perpetrated by a mob. An insurrection is an organized armed uprising which seriously threatens the stability of government and endangers social order. An insurgent has been defined as “one who in combination with others takes part in active and forcible opposition to the constituted authorities, where there has been no recognition of belligerency.” Insurrection is distinguished from rebellion in that it is less extensive and its political and military organization is less highly developed. The term insurrection would be appropriate for a movement directed against the enforcement of particular laws, while the word rebellion denotes an attempt to overthrow the government itself, at least in a particular part of the country. War is a conflict conducted between recognized belligerents. It has been defined as ”that state in which a nation prosecutes its right by force.” The essential fact is that war is not, legally, a coercion of individuals. It is a condition in which individuals are relieved from responsibility for acts that would otherwise be criminal — a condition in which force is exerted either between established nations or between organized groups whose character as belligerent powers is conceded. A nation does not claim the municipal power over its enemies in a public war, but it does assert that claim in the case of insurrection or rebellion.

Randall highlights the importance of whether CSA soldiers were insurgents or belligerents.  Insurgents are nothing more than common criminals.  They have no right to participate in hostilities, they can be prosecuted for murder if they kill a member of the enemy’s armed forces, and they are not entitled to POW status upon capture.  Belligerents, by contrast, are privileged combatants.  They are allowed to participate in hostilities, they cannot be prosecuted for murder if they kill members of the enemy’s armed forces, and they are entitled to be treated as POWs upon capture.  They are, in other words, functionally equivalent to the armed forces of an actual state, even though they fight for an authority that is a non-state actor.

The Issue

We can now turn to the issue of whether the CSA was an insurgent or a belligerent.  Here is what the editorial says: “During the U.S. Civil War, the Union claimed to blockade the Confederacy while at the same time maintaining that the Confederacy was not a sovereign state but an agent of insurrection.” Posner believes, in other words, that the Union treated the CSA as an insurgency, not as a belligerency.  That is correct as far as it goes — but it is incomplete in in two critical respects…

Why International Law Can’t Resolve the Legality of the Gaza Blockade

by Julian Ku

I want to take a moment to salute Kevin for his post on the legality of the Gaza blockade, which has drawn a record 94 comments and thousands of page views. Talk about fostering discussion and debate!

Kevin has put his finger on the key legal issue: the legality of the blockade.  While the question of whether excessive force was used is also central, the facts are too murky to figure this question out, and we may never figure this out.  But the facts on the blockade are fairly settled.  And, as Eric Posner points out in today’s WSJ, it is the law here is a bit murky but could certainly be read to support Israel’s position.  Most importantly, I think he is right to argue that there is no clear international law rule here for either side.

Longstanding customary international law permits states to enforce publicly announced blockades on the high seas. The Gaza blockade was known to all, and certainly to those who launched the ships for the very purpose of breaking it. The real question is whether the Israeli blockade is lawful. Blockades certainly are during times of war or armed conflict. The U.S.-led coalition imposed a blockade on Iraq during the first Gulf War.

The catch here is the meaning of “armed conflict.” Traditionally, armed conflict can take place only between sovereign states. If Gaza were clearly a sovereign state, then Israel would be at war with Gaza and the blockade would be lawful. If, however, Gaza were just a part of Israel, Israel would have the right to control its borders— but not by intercepting foreign ships outside its 12-mile territorial sea or contiguous zone.

Gaza is not a sovereign state (although it has its own government, controlled by Hamas) and is not a part of Israel or of any other state. Its status is ambiguous, and so too is the nature of the armed conflict between Israel and Hamas. Thus there is no clear answer to the question whether the blockade is lawful.

However, the traditional idea of armed conflict involving only sovereign states has long given way to a looser definition that includes some conflicts between states and nonstate actors. The international rules governing blockades attempt to balance belligerents’ interest in security and other countries’ economic interests in shipping. During war, security interests prevail.

Ken’s Not-Yet-Response re Drone Warfare and Targeted Killing and Professor Alston’s Report

by Kenneth Anderson

I have been flattered to be called out on the topic of drones, targeted killing, the CIA, and related issues arising mostly from the release today of Professor Philip Alston’s UN special rapporteur report (press release here).  Deborah has a useful summary and some important quotes from the press release in her earlier post.  I’ve read the report once, and am reading it again, but am not ready to comment.  Well, not quite.  I’m under pressure to produce some commentary for some newspaper and print journalism, while getting the grading completed before my faculty’s $100 a day late fine kicks in … sorry to punt, but I’m not quite sure I want to weigh in with a quick blog post as yet on the topic (okay, this gets a little longer than planned, but it’s not really a response to the report).

I will say, though, that Philip’s careful discussion, set against the way in which the State Department frames the issues, is a demonstration once again of the ways in which public international law seems to be increasingly discourses passing in the night.  It’s one reason I hesitate to take the issue up here – I’m not persuaded that we all speak a sufficiently shared methodological language in these highly intertwined legal-political issues to be able to do much more than set out a view and the sources that we find persuasive.  The importance of actual historical state practice of leading states, or not, on the one hand, versus the importance of such things as pronouncements of the ICJ or other tribunals or statements by UN bodies or rapporteurs or military manuals of states that don’t actually fight, or not, on the other … you see the problem.

So, yes, I endorse the “independent” self-defense view as an alternative legal basis for the use of force, which is to say, I reject the view that uses of force are a binary exhausted by law enforcement and armed conflict (I’ve posted another round of this discussion and the CIA in the second hearing testimony that I’ve just posted at SSRN).  Given the existence of an armed conflict with Al Qaeda, among other parties at this point, whether any particular drone strike is an act within the armed conflict or an exercise of independent self-defense is open to interpretation, with the possibility of overlapping rationales in some cases.

I endorse the State Department’s view of this, as I understand it from Legal Adviser Koh’s ASIL speech, and think it nothing novel – merely the reassertion of US legal views – going well back before the Obama, Bush fils, and Clinton administrations, to Reagan and Bush pere, and no doubt well before that even.  If a state cannot or will not control its territory to prevent it from being used as safe haven for terrorists or terrorist groups, then even the important international legal rule of territorial sovereignty can be overcome by an affirmative defense of self-defense; that use of force might be in the form of armed conflict, but it might be something that does not rise to that level of hostilities and thus constitute an act of self-defense use of force simpliciter.  That use of force is justified under jus ad bellum and is directed against the threat – the terrorists – and because it is a use of force, it must meet standards that are, as the Legal Adviser said, the principles underlying armed conflict rules, distinction and proportionality and, I would add, necessity in the first place in determining to target.  Necessity giving rise to self-defense; distinction in defining the target; proportionality in the evaluation of collateral damage. Continue Reading…

Samantar Insta-Symposium: The View From the Counsel’s Table

by Beth Stephens

[Prof. Beth Stephens of Rutgers Law School at Camden has litigated and written widely on related issues. Additionally, she served a counsel for one of the (victorious) respondents in the Samantar case.  We are of course honored that she is able to share her views with us. Again, a reminder that “Related Posts” will send you to a collection of all of the posts on this topic.] 

The Supreme Court decision in Samantar v. Yousuf put to rest to a line of Circuit court decisions that has baffled me for twenty years. Immunity for some foreign government officials for some official acts may or may not be good policy, but I’ve never understood the argument that such immunity could be found within the text of the FSIA. Moreover, the executive branch under multiple administrations, shared my reading of the statute – a level of support that has been rare in my professional career. 

 

The executive branch has also argued consistently over many years that common law immunity for foreign government officials survived passage of the FSIA. The Supreme Court in Samantar seemed to agree, but took pains to say very little about the scope of any such immunity. The Court acknowledged the existence of “specialized” or “position-based” immunities for diplomats, consuls and heads-of-state, and stated that “we do not doubt that in some circumstances the immunity of the foreign state extends to an individual for acts taken in his official capacity.” The decision remanded the case to the District Court to consider any non-FSIA defenses, including whether Samantar “is entitled to immunity under the common law.”

 

Putting aside the issues likely to arise on remand in Samantar, a case on which I served as one of the counsel for the Respondents, a few points on where other cases may go from here:

 

Prior to Samantar, even in Circuits that followed Chuidian, the FSIA had not posed a significant hurdle to human rights cases because most cases followed the pattern of the lawsuit against Ferdinand Marcos, in which the Ninth Circuit applied Chuidian but found that Marcos’ acts of torture, execution, and disappearance “were clearly acts outside of his authority as President,” “were not taken within any official mandate,” and, as a result, were not protected by the FSIA.

 

A key issue for future cases will be to determine what law will govern the circumstances in which a suit will be deemed an “official capacity” suit for immunity purposes. Looking purely to the law of the foreign state, as interpreted by the government of that state, would pose a difficult conflict. I do not think, for example, that our courts will conclude that a foreign official accused of genocide can claim sovereign immunity based upon an assertion that, in committing the genocide, he or she was acting within the official policy of a foreign government. If the reach of official authority that will entitle an individual to assert immunity is governed at least in part by international law, government officials who have committed violations of widely accepted international human rights norms will not be protected by immunity. The Torture Victim Protection Act provides a model: The TVPA states clearly that some acts are tortious and subject to suit in U.S. courts when committed under color of foreign law.

 

Finally, the common law of immunity today is not necessarily identical to the common law of 1976. Since that time, relevant doctrines of U.S. law, domestic law in other countries, and international law have all evolved. Human rights norms have expanded greatly, along with international and domestic approaches to accountability. For example, statutory changes in the United States such as the TVPA would override pre-existing common law. Similarly, treaties and customary international law may impose obligations to hold accountable those who violate human rights that did not exist when the executive branch and the courts last addressed the immunity of foreign government officials.

Samantar Insta-Symposium: What Samantar Doesn’t Decide

by William S. Dodge

[We are grateful to continue our discussion on Samantar with a comment from Prof. William Dodge of the UC Hastings College of Law. Please keep following us for more thoughts in future posts and click “Related Posts” to see earlier contributions on this question.]

 

Like my colleague Chimene Keitner, I wrote an amicus brief supporting respondents (co-authored with Mike Ramsey), and I too am happy with the result in Samantar.

 

Although Curt Bradley’s post magnanimously notes that his position lost 9-0 in Samantar, it would be wrong to see the decision as a defeat for Curt and his co-author Jack Goldsmith. What they have succeeded in doing, despite the loss in Samantar, is to raise the issue of official immunity, which it is safe to predict will now be pleaded as a defense to many ATS and TVPA claims.

 

After Samantar, we know that the immunities of foreign officials (at least those not covered by treaties) are “properly governed by the common law.” I find it interesting that the Court never says “federal common law,” though I doubt anyone thinks the Court meant for the district court to apply the common law of Virginia on remand. Cf. Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 421-27 (1964) (holding that the closely analogous act of state doctrine must be applied as a matter of federal common law).

 

One critical issue the district court will have to address is the relationship between the (federal) common law of immunity and customary international law. Curt’s post finds it remarkable, that the Court didn’t say more about international law, but as footnote 14 of the opinion points out, the Court didn’t have to say anything in order to decide this case. In fact, sovereign immunity has long been treated as a question of comity in the United States rather than as a question of customary international law. The Schooner Exchange v. McFaddon, 11 U.S. 116, 136-37, 146 (1812), says that immunity is based on consent and may be withdrawn. (The analysis of Schooner Exchange gets somewhat complicated because international law at the time recognized that some rules of the law of nations were optional, a topic Curt has also written about recently.) The Santissima Trinidad, 20 U.S. 283, 353 (1822), expressly states that sovereign immunity is a matter of “public comity and convenience” and modern decisions like Verlinden are to the same effect. Thus, even if the House of Lords decision in Jones were a relevant statement of customary international law (and Chimene’s brief does an able job of explaining why it is not), it would not necessarily be applied directly as common law.

 

Another critical issue is the role of the executive. The Court’s brief history of foreign sovereign immunity skips from 1812 to 1938, omitting a period during which the executive’s determinations of immunity were not treated as conclusive. See, e.g., Berizzi Bros. Co. v. The Pesaro, 271 U.S. 562 (1926). Most (perhaps all) of the modern cases deferring to the executive’s determinations of official immunity have involved diplomatic or head of state immunity. It is one thing for the President to determine under his power to send and receive ambassadors who is a diplomat or under his recognition power who is a head of state, but perhaps quite another to determine whether torture is an “official act” for which a defendant is entitled to immunity. The Solicitor General’s brief took the position that the immunity of foreign officials is governed by “principles adopted by the executive branch,” but it is not immediately obvious where the President gets this law-making power from.

 

In any event, Samantar should provide lots of grist for the law review mill.

Samantar Insta-Symposium: Recognizing Personal Responsibility

by Chimene Keitner

[In our continuing discussion of Samantar, we are very pleased to share the thoughts of Professor Chimene Keitner, of U.C. Hastings College of Law.  More comments to come soon.]

As counsel for Professors of Public International Law and Comparative Law as amici curiae in support of Respondents, I obviously agree with the Court’s disposition. As Opinio Juris readers know courtesy of Julian, I recently published a brief essay in YJIL Online that argues against reading the FSIA to encompass individuals as a matter of logic, policy, and international law. In my view, it is entirely appropriate that the Court read the FSIA as it was written, and left it to the district court to address Samantar’s claim of common law immunity in the first instance.

In arguing for immunity, Samantar seemed to take for granted that, if the FSIA applied to individuals, he would enjoy immunity for torture and extrajudicial killing. He argued that, both under the common law and the FSIA, “individual immunity … was coextensive with the law of state immunity and always immunized a foreign official for acts taken on behalf of the foreign state” (slip op. at 14). As a historical matter, this is demonstrably false. The Court correctly observed that “the relationship between a state’s immunity and an official’s immunity is more complicated than petitioner suggests” (slip op. at 15).

I do not think it is a fair criticism of the Court’s decision to say that it will invite further litigation because, even if the FSIA applied to individuals, one would still have to decide when to treat an individual as the foreign state. The only decision that would have precluded further litigation would have been one that ignored the long-standing principle that individuals can be personally responsible, both civilly and criminally, for certain conduct that is also attributable to the state.

I agree that Samantar will not open the floodgates to unrestricted ATS and TVPA cases against current and former officials. Status-based immunities shield many current officials from suit in U.S. court. Suits will be dismissed if the state is an indispensable party under Republic of Philippines v. Pimentel, 553 U.S. 851 (2008), or if the state is the real party in interest under the line of cases I discuss in the amicus brief (Section II.B). It is not contrary to a textual analysis of the FSIA to acknowledge that certain cases nominally brought against individuals will be dismissed on common law immunity grounds, such as those involving claims for breach of contract or entitlement to state funds.

What struck me most as I was doing research for the amicus brief, and that has led me to continue researching historical practice in this area, is the relative lack of scholarly or judicial attention to the contours of conduct-based immunity, as opposed to status-based immunity (or “position-based individual immunities,” slip op. at 13 n.12). I see it as a strength, rather than a weakness, that the Court abstains from pronouncing prematurely on this question. For example, my research indicates that the Solicitor General overstates the case for absolute executive deference to determinations of conduct-based (as opposed to status-based) immunity in its amicus brief by neglecting U.S. practice before the 1940s. I also take issue with characterizations of early U.S. practice and customary international law that suggest immunity is required for all conduct that involves state action, regardless of the nature of that conduct, as discussed in the amicus brief.

Kentucky v. Graham, 473 U.S. 159 (1985), does not suggest otherwise. The quoted language refers to a suit brought against an official in his or her official capacity, which by definition imposes direct financial liability on the state itself. It is well established in U.S. law that individual officials may be sued in their personal capacity for certain conduct performed under color of law. As the Supreme Court emphasized in Hafer v. Melo, which followed Kentucky v. Graham, “[p]ersonal-capacity suits, on the other hand, seek to impose individual liability upon a government officer for actions taken under color of state law.” 502 U.S. 21, 25 (1991). The Court futher observed: “The requirement of action under color of state law means that Hafer may be liable for  discharging respondents precisely because of her authority as auditor general. We cannot accept the novel proposition that this same official authority insulates Hafer from suit.” Id. at 27-28. The Court’s citation to Kentucky v. Graham in Samantar suggests that it finds this domestic law reasoning relevant to determining when a foreign state is the real party in interest. Moreover, as I discuss in the amicus brief and the YJIL Online essay, other courts have also focused on the nature of the relief requested to differentiate between personal capacity and official capacity suits.

This does not mean that, as soon as an official leaves office, he or she will face the prospect of a trial in U.S. court for any controversial decision taken on behalf of the state. Multiple filters, including status-based immunities, the requirement of personal jurisdiction, the act of state doctrine, the political question doctrine, the exhaustion requirement in the Torture Victim Protection Act, the limited class of actionable violations under the Alien Tort Statute as interpreted by Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), and others limit the number of cases that will actually go forward. To the extent that some continue to object to the use of U.S. courts to impose personal responsibility on individuals who commit serious international law violations, any filters that allow even a few cases to proceed will inevitably seem insufficient. However, re-inventing the law of immunity to create a categorical barrier to such cases is not warranted. In addition to misreading prior case law, categorical immunity would undermine Congress’s provision of civil remedies (e.g., in the Torture Victim Protection Act) and criminal penalties (e.g., in the Torture Convention Implementation Act and the Genocide Accountability Act) against individuals who are responsible for certain core violations. Individuals may be entitled to claim immunity in certain circumstances, but such claims must go beyond simply asserting that they acted on behalf of the state.

Samantar Insta-Symposium: Foreclosing “Official Capacity” Suits

by Roger Alford

The most interesting aspect of the Samantar v. Yousuf opinion yesterday was the final section addressing the “artful pleading” problem. The Court stated that “[e]ven if a suit is not governed by the [FSIA], it may still be barred by foreign sovereign immunity under the common law. And not every suit can successfully be pleaded against an individual official alone.” It then raised three limitations to possible suits against individuals under the common law: (1) absence of personal jurisdiction; (2) dismissing the suit because of a necessary party; and (3) treating the state as the real party in interest where an individual’s conduct was done in his official capacity. (Slip op. at 18-19).

I think the last limitation could prove to significantly limit future suits against government officials. The Court stated that “it may be the case that some actions against an official in his official capacity should be treated as actions against the foreign state itself, as the state is the real party in interest. Cf. Kentucky v. Graham, 473 U.S. 159, 166 (1985) (‘[A]n official-capacity suit is, in all respects other than name, to be treated as a suit against the entity. It is not a suit against the official personally, for the real party in interest is the entity.'”).

A quick search suggests that lower courts were split on the question of whether individuals acting in their official capacity enjoyed sovereign immunity. The Court yesterday rejected the argument that individuals fall within the FSIA, but affirmed that they could fall within common law immunity.

Henceforth the central focus of litigation against government officials will be whether they were acting within their official capacity. Defendants will seek to show they were acting with authority or under orders when they tortured or killed, while plaintiffs will argue the opposite. Unlike head of state immunity, it matters not whether they are government officials at the time of suit. All that matters is if their alleged unlawful conduct was taken as a government official. If so, then the state is the real party in interest, and sovereign immunity is triggered.

The UN’s New Report on Targeted Killing

by Deborah Pearlstein

Cross-posted at Balkinization

I hate to interrupt the terrific insta-symposium on the Supreme Court’s decision in Samantar already underway at Opinio Juris, but I did want to note the much-anticipated release of Philip Alston’s report as UN Special Rapporteur on Extra-Judicial Killings. I take it the relevant press release and report will be available here. I’m just now paging through it, but for now, a few brief notes.

Broadly, while acknowledging the sometime-legality of targeted killing, the report cautions that “circumstances in which targeted killings are alleged to be legal” have become “excessively broad,” and mechanisms that might help ensure accountability for their legality – including any measure of transparency – are missing. From the press release:

“[T]here are indeed circumstances in which targeted killings may be legal. Targeted killings are permitted in armed conflict situations when used against combatants or fighters, or civilians who directly engage in combat-like activities,” Mr. Alston noted, “but they are increasingly being used far from any battle zone.” According to the UN Special Rapporteur, the United States, in particular, has put forward a novel theory that there is a ‘law of 9/11’ that enables it to legally use force in the territory of other States as part of its inherent right to self-defence on the basis that it is in an armed conflict with al-Qaeda, the Taliban and ‘associated forces’, although the latter group is fluid and undefined. “This expansive and open-ended interpretation of the right to self-defence goes a long way towards destroying the prohibition on the use of armed force contained in the UN Charter. If invoked by other States, in pursuit of those they deem to be terrorists and to have attacked them, it would cause chaos,” he said. Mr. Alston emphasized that “I do not for a moment question the seriousness of the challenges posed by terrorism. I condemn wholeheartedly the actions of al-Qaeda and all other groups that kill innocent civilians, as well as any groups that increase the danger of attacks on civilians by hiding in their midst. These actions unequivocally violate international law. But the fact that such enemies do not play by the rules does not mean that a Government can cast those rules aside or unilaterally re-interpret them. The credibility of any Government’s claim that it is fighting to uphold the rule of law depends on its willingness to disclose how it interprets and applies the law – and the actions it takes when the law is broken.”

As for the accountability issue, again from the press release, Alston is quoted as saying:

“[I]t is an essential requirement of international law that States using targeted killings demonstrate that they are complying with the various rules governing their use in situations of armed conflict.” The clearest challenge to this principal today, according to the independent expert, comes from the program operated by the US Central Intelligence Agency in which targeted killings are carried out from unmanned aerial vehicles or drones. “It is clear that many hundreds of people have been killed, and that this number includes some innocent civilians. Because the program remains shrouded in official secrecy, the international community does not know when and where the CIA is authorized to kill, the criteria for individuals who may be killed, how it ensures killings are legal, and what follow-up there is when civilians are illegally killed.” The UN Special Rapporteur stressed that “in a situation in which there is no disclosure of who has been killed, for what reason, and whether innocent civilians have died, the legal principle of international accountability is, by definition, comprehensively violated.”

Importantly, Alston contrasts the CIA program in this regard with “the well-established practice of the US Department of Defense. While it is by no means perfect, the US military has a relatively public accountability process, as demonstrated earlier this week by its report on the incident in Uruzgan, Afghanistan, in which at least 23 civilians were killed based on erroneous intelligence from surveillance drone operators. Intelligence agencies, which by definition are determined to remain unaccountable except to their own paymasters, have no place in running programs that kill people in other countries.”

A final note for now. The report provides, among other things, the clearest, most concise (and usefully footnoted) summary of the complex and overlapping areas of law governing targeted killing I have yet seen – addressing law of war, self-defense, and international human rights law issues. I’ll be most interested to hear from Ken, among others, on what if anything the report gets wrong in this respect. On first glance, it looks awfully solid to me.

Samantar Insta-Symposium: Samantar and Foreign Official Immunity

by Curtis Bradley

[We are pleased to share comments on the U.S. Supreme Court’s decision yesterday in Samantar v. Yousuf from Professor Curtis Bradley, who has written a great deal on the issue considered by the Court yesterday.  We hope to share comments from other informed observers on the decision over the next couple of days ].

As I bask in the glow of not having a single Justice in Samantar accept the theory of the FSIA that Jack Goldsmith and I had proposed, the following thoughts occur to me:

1. The decision strikes me as a perfectly reasonable construction of the FSIA’s text. I’ve always liked and admired Justice Stevens, but I’ve also thought that he had a tendency sometimes to gravitate towards the eccentric. This decision, however, is very lawyerly and does a nice job of addressing most of the counter-arguments. It is easy to imagine that Stevens’ opinion might have persuaded some Justices who were leaning the other way, especially Justices committed to textualism.

2. Supporters of broad executive power should be pleased with the decision. The Court describes with approval the pre-FSIA practice whereby an executive suggestion of immunity would cause courts to “surrender their jurisdiction,” and it appears to view that executive authority as part of the “common law” regime that it says has been preserved for suits against foreign officials despite the enactment of the FSIA. The Court says, for example, that “[w]e have been given no reason to believe that Congress saw as a problem, or wanted to eliminate, the State Department’s role in determinations regarding individual official immunity.”

3. Those who would describe this decision as a big victory for international human rights litigation are getting ahead of themselves. For a long time, the Filartiga line of cases simply ignored the issue of individual official immunity. That had started to change with some recent lower court cases (e.g., cases brought against Israeli officials), and now the issue will be front and center. The Court in Samantar emphasizes the “narrowness” of its holding and makes clear that it is deciding only the issue of the FSIA’s applicability. It also says that it “does not doubt that in some circumstances the immunity of the foreign state extends to an individual for acts taken in his official capacity,” and it repeatedly suggests that the common law may offer immunity to individual officials. As noted above, the Court also seems to indicate that the executive branch can issue binding suggestions of immunity in suits against foreign officials. Finally, it says (somewhat surprisingly given its textual analysis of the FSIA), that “it may be the case that some actions against an official in his official capacity should be treated as actions against the foreign state itself, as the state is the real party in interest.”

4. The Court, like the executive branch in its amicus brief, says remarkably little about international law. Contrast that with the British House of Lords’ 2006 decision in Jones, where the court was faced with a similar statutory construction issue and focused extensively on the international law backdrop (and concluded that the Filartiga line of cases was in violation of the customary international law of immunity). Contrast it as well with Justice Stevens’ own opinion in Hamdan v. Rumsfeld, which relied heavily on international law in construing the Uniform Code of Military Justice.

5. Regardless of your views of the impact of the decision on executive power, human rights litigation, or international law, the decision is good for lawyers and law professors. With its undefined references to common law immunity, and its lack of clarification regarding the role of international law, the Court has invited years of litigation and law review articles. Amusingly, one of the reasons the Court cites for declining to construe the FSIA to cover foreign official immunity is that the courts that have adopted this construction “have had to develop, in the complete absence of any statutory text, rules governing when an official is entitled to immunity under the FSIA.” But now that is still going to happen, albeit this time with even less effort by courts to connect their decisions to the policy choices that Congress has made. For discussion of one of the many areas of likely debate in the coming years, see here.

Why Is Israel’s Blockade of Gaza Legal? (Updated)

by Kevin Jon Heller

I know that will sound like a provocative question, but it’s not meant to be.  According to the Jerusalem Post, Israel justifies its interdiction of the “Freedom Flotilla” by reference to Article 67(a) of the San Remo Manual on International Law Applicable to Armed Conflict at Sea, which permits the attack of neutral merchant vessels that “are believed on reasonable grounds to be carrying contraband or breaching a blockade, and after prior warning they intentionally and clearly refuse to stop, or intentionally and clearly resist visit, search or capture.”  The interdiction thus depends on the legality of the blockade of Gaza — and I am genuinely confused as to why that blockade is legal.  The Jerusalem Post says the Israeli government is arguing that “Israel was in a state of armed conflict with Gaza and therefore entitled by international law to blockade Gaza.”  But that defense ignores a critical question: what kind of armed conflict?

If the conflict between Israel and Hamas is an international armed conflict (IAC), there is no question that Israel has the right to blockade Gaza.  (Which is not to say that the manner in which Israel is blockading Gaza is legal.  That’s a different question.)  The 1909 Declaration Concerning the Laws of Naval War (the London Declaration), the first international instrument to acknowledge the legality of blockades, specifically recognized the right of belligerents to blockade their enemy during time of war.  Article 97 of the San Remo Manual does likewise.  And there is certainly no shortage of state practice supporting the legitimacy of blockades during IAC (the US blockade of Cuba, for example).

But what justifies a blockade in non-international armed conflict (NIAC)?  The London Declaration does not justify such a blockade, because it only applies to “war”– war being understood at the time as armed conflict between two states.  Does the San Remo Manual justify it?  The Manual is not a picture of clarity concerning when its rules apply, but it does not seem to contemplate non-international sea conflicts.  Article 1 speaks of “the parties to an armed conflict at sea,”  which does not seem to include NIAC, unless perhaps a rebel group has a navy.  (Do any?)  Article 2 parallels the Martens Clause in the 1907 Hague Convention (IV) Respecting the Laws and Customs of War on Land, which only applies to IAC.  Article 3 acknowledges the right of self-defense under Article 51 of the UN Charter, but — as Marko Milanovic has pointed out — that right is an exception to the prohibition on the use of force in Article 2(4), which only operates between states.  And numerous articles in the Manual refer specifically to “belligerent States” (see, for example, 10, 20, 34).

There also appears to be little, if any, state practice to support the idea that a blockade is legally permissible in NIAC.   According to the Jerusalem Post, the Israeli government is defending the blockade by citing Yoram Dinstein’s statement that “there are several instances of contemporary (post-UN Charter of the Law of the Seas) practices of blockades, e.g. in the Vietnam and in the Gulf War.”  But those were all blockades in IAC.  I can’t think of any blockades in NIAC other than Israel’s blockade of Gaza — though readers should feel free, of course, to correct me.

The seeming absence of support for blockades in NIAC is obviously important, because it is difficult to argue that Israel is involved in an IAC with Hamas.  First, it is obviously not in a traditional IAC, because Gaza is not a state.  Second, not even Israel claims that the conflict has been internationalized by the involvement of another state.  And third, although the Israeli Supreme Court held — controversially — in the Targeted Killings case that armed conflict between an occupying power and a rebel group is international, Israel’s official position is that it not currently occupying Gaza.

Israel’s defense of the blockade thus appears to create a serious dilemma for it.  Insofar as Israel insists that it is not currently occupying Gaza, it cannot plausibly claim that it is involved in an IAC with Hamas.  And if it is not currently involved in an IAC with Hamas, it is difficult to see how it can legally justify the blockade of Gaza.  Its blockade of Gaza, therefore, seems to depend on its willingness to concede that it is occupying Gaza and is thus in an IAC with Hamas.  But Israel does not want to do that, because it would then be bound by the very restrictive rules of belligerent occupation in the Fourth Geneva Convention.  (For a discussion of the difference between the humanitarian obligations imposed by belligerent occupation and by blockades, see Dapo Akande’s post at EJIL: Talk! here.)

There is, however, another possibility: that Israel’s blockade of Gaza is not a “belligerent blockade” at all, but is instead something akin to a “pacific blockade,” defined by the Dictionary of International Law as “a form of coercive measure short of war, whereby a state (or group of states) bars access to the coast of a state or part of it in order to prevent entry and exit of ships of the state under blockade.”  I say “akin to” a pacific blockade, because — as the definition indicates — such blockades assume that the blockaded entity is a state, not a non-state actor.  Even if Israel’s blockade of Gaza would analogically qualify as a pacific blockade, however, it would still be of questionable legality: pacific blockades are only legal with the approval of the Security Council, according to the Dictionary of International Law, and the Security Council has never approved the blockade of Gaza.

It seems to me, in short, that it is difficult to argue Israel has the legal right to blockade Gaza.  But let me be clear — I am not certain that I am correct. I am not an expert regarding the law of blockades.  I am not an expert regarding the law of the sea.  I am not an expert regarding the San Remo Manual.  So I am genuinely open to being convinced that my argument is wrong.

Readers?  Your thoughts?  (And be warned that I will delete nasty or irrelevant comments.  I’m trying to encourage genuine academic debate over the legality of the blockade; I have no interest, at least in this post, in debating the normative or political merits of Israel’s actions.)

UPDATE: As a number of commenters have pointed out, Lincoln’s blockade of the Confederate States of America (CSA) during the Civil War is a relevant historical precedent.  But I think that the Civil War blockade actually supports the argument I’ve made above.  As noted in the Lincoln section of the University of Virginia’s Miller Center of Public Affairs, the international community viewed the blockade as an act of war that required the CSA to be formally recognized as a belligerent, thus effectively transforming what was previously a NIAC into an IAC:

The first crisis occurred when England issued a proclamation of neutrality, which rested upon the logic of the Union’s declared blockade. According to English reasoning, although Lincoln proclaimed the rebels to be insurrectionists and thus not recognizable under international law as a belligerent power engaged in war, his declared blockade was an act of war, which would have to be conducted against a sovereign state. Thus Lincoln had actually granted belligerency status to the Confederacy and thereby forced foreign powers to do the same. By proclaiming neutrality, England afforded the Confederacy the status of a belligerent power. Other European nations followed England’s lead. Belligerency status gave the Confederacy the right, according to international law… to contract loans and to purchase arms from neutral nations. It also allowed England to provide safe harbors for both Union and Confederate warships and merchant vessels, to build blockade runners and warships for the Confederacy, and to formally debate in Parliament the merits of active intervention.

L.C. Green, one of the great IHL scholars, agrees with this analysis.  If this is still the state of the law — and I don’t know whether it is — it would be possible to argue that Israel’s conflict with Hamas is an IAC and Israel is thus entitled to blockade Gaza.

But there’s a catch — and a big one.  If the “cost” of the blockade is formally recognizing Hamas as a belligerent, maintaining the blockade would mean recognizing Hamas fighters as privileged combatants.  (Just as the armed forces of any state are privileged combatants.)  That would be fundamentally unacceptable to Israel, because Hamas fighters would then be entitled to attack Israeli combatants and would have to be treated as POWs upon capture.

Two Thoughts on Peter Erlinder’s Arrest in Rwanda

by Kevin Jon Heller

Julian beat me to the punch regarding the news that Peter Erlinder, the William Mitchell law professor who is one of the leading defense attorneys at the ICTR, has been arrested in Rwanda for “genocide denial” — code for “criticizing the Kagame government.”  There is no need to waste time criticizing the arrest; anyone who follows Rwanda knows that Kagame is a petty dictator.  But two larger points are worth emphasizing.

First, this latest turn of events should be the death knell of the Office of the Prosecutor’s efforts to transfer the remaining ICTR cases to domestic Rwandan courts.  As I have noted before, the Trial and Appeals Chambers have shown great courage in refusing transfer requests, correctly recognizing that the the likelihood that ICTR defendants will receive a fair trial from Kagame’s government is essentially zero.  The OTP is likely to redouble its efforts to transfer cases as the ICTR’s completion date draws near, but it is difficult to see how the Chambers could change its position given Erlinder’s arrest.  If Rwanda is willing to arrest a defense attorney for doing his job, can anyone maintain with a straight face that transferred defendants would be tried fairly?

Second, and relatedly, the ICTR has uttered nary a word in protest of Erlinder’s arrest.  That’s absolutely shameful — and is indicative of the Tribunal’s general contempt for defense attorneys.  The very first post I ever wrote for Opinio Juris, way back in February 2006, focused on the second-class status of defense attorneys at the international tribunals.  Unfortunately, it seems clear that nothing has changed in the past four years.

Australia’s Application to the ICJ Causes Japanese Government to Fall!

by Julian Ku

I’m sure that this smashing application by Australia to the ICJ is the proximate reason for the Japanese Prime Minister’s sudden resignation today. Behold the power of the World Court litigation! OK, I’m violating my late-night blogging rule (see earlier posts for my dumb brain cramps when I blog at midnight) and getting a little punchy. But it is a weird coincidence, isn’t it?

Although the full Australia application is not online yet, the argument looks like it tracks the expected claims under the International Convention for the Regulation of Whaling with secondary arguments under CITES and the U.N. Convention on Biodiversity. More details later when the full application is put up online. Will the new Japanese Government be willing to make a deal?

ATS vs. FSIA, ATS wins?

by Duncan Hollis

I’m interrupting my current teaching assignment in Rome (a tough gig I know) to flag for reader’s the U.S. Supreme Court’s decision today in Samantar v. Yousef (see here).  As Julian noted in an earlier post, the question before the Court in this case was whether the Foreign Sovereign Immunities Act (FSIA) immunized foreign government officials for their official acts.  For human rights activists, however, the case had real import for the future of litigation under the Alien Tort Statute (ATS).  Simply put, the FSIA already makes it difficult to bring an ATS suit vs. a foreign state directly (barring the application of one of that statute’s exceptions to immunity).  If the FSIA were read to also afford immunity to foreign officials who commit international law violations, the pool of possible ATS defendants would be quite small indeed (and, ironically, might end up being limited primarily to non-state actors for their complicity in bad acts performed by the very state and government officials who had immunity under the FSIA). 

The Court today, however, declined to go down that road.  Instead, it found that the FSIA does not apply to foreign government offcials.  I’d welcome commentary on what folks think this means for the future of ATS suits or the FSIA itself.  My own first take, however, is a simple one, namely, that human rights activists should be breathing a huge sigh of relief tonight.  The Court had a chance here to gut the ATS, and it declined to do so.  Now, maybe foreign government officials will eventually find an alternative path to immunity (the Court, for example, declined to address the question of whether such officials qualify for common law immunities).  But, at least in the near term, it seems foreign government offiicals remain inside the potential ATS defendant pool.

Did the Israeli Defense Forces Commandos Commit “Piracy”? Nope.

by Julian Ku

I tread warily into the debate over the Israeli commando raid on the Gaza flotilla.  There has been no shortage of commentary and reactions abroad (here in the U.S., it seems most folks are unmoved by the whole incident).  Of course, most of the facts are hotly disputed and, frankly, will remain hotly disputed.  Still, let me start by advising IDF critics to drop the silly accusation that Israel committed “piracy,” which various folks have made here, here, and here.  The IDF raid may well have violated international law governing disproportionate and excessive use of force against non-combatants (although the IDF claims their commandos were armed only with paintball guns).  But whatever can be said about the legality of the raid, it was not, as a legal matter, piracy. Let’s go to the U.N. Convention on the Law of the Sea, Article 101:

Piracy consists of any of the following acts:

(a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed:

(i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;

(ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;

(b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft;

(emphasis added).  I don’t think even the Gaza flotilla defenders claim that the IDF raid was “committed for private ends.” (Just the opposite, actually).  And, in general, piracy cannot be committed by a national ship, only by private ships or by national ships that have been taken over by their crews.  (Given my recent brain cramps, I am of course happy to be corrected here by piracy experts out there, but I think this is right).

So can we drop the stupid piracy meme?  There are some very hard legal issues here:  Is Israel’s naval blockade legal? (Probably). If so, was the boarding in international waters legal? (Maybe). And even if so, did the IDF use disproportionate force?  (I have no idea).  This last question is really the key issue here, and it is also the one that is never going to be resolved with any certainty given that it is dependent on neutral factual determinations that will never happen here.

Detained U.S. Law Professor Peter Erlinder Hospitalized in Rwanda

by Julian Ku

Detained U.S. lawprof Peter Erlinder was hospitalized in Rwanda over the weekend after five hours of questioning.

A St. Paul attorney jailed in Rwanda was hospitalized with high blood pressure today after being interrogated, according to his daughter and an attorney.

Peter Erlinder, who is charged with promoting genocidal ideology, is expected to be kept in the hospital overnight and returned to jail Tuesday, said Sarah Erlinder, his daughter.

The hospitalization came after Erlinder was interrogated for up to five hours today, said Gena Berglund, associate director of the International Humanitarian Law Institute of Minnesota. She said she didn’t know how much of that time had been Erlinder meeting with his attorneys and how much had been questioning.

It remains unclear what exactly the charges are against him and why he is being interrogated.  It sounds like Rwanda is alleging his representation of opposition figures, indeed, some of the arguments he has made in his legal defense, are the basis of the charges. If so, this would be deeply troubling to say the least.