Archive for
July, 2010

African Union Loves Bashir, Hates the ICC

by Kevin Jon Heller

Not surprisingly, the AU has condemned the ICC’s decision to issue an arrest warrant against Bashir for genocide.  Equally unsurprising, the new resolution seems to have been adopted with the same kind of back-room machinations that led to the AU’s previous resolution condemning the ICC:

Over the weekend, delegates from the AU countries reportedly fought a fierce battle that led to removing language that reiterates previous positions on granting immunity to Bashir in Africa and criticizing the ICC prosecutor Luis Moreno-Ocampo.

Bashir was indicted by the International Criminal Court (ICC) for war crimes in Darfur last year. This month the court added genocide to the charges, accusing him of orchestrating murders, rapes, and torture in the troubled western region.

The Sudanese leader himself has skipped this summit in retaliation to Museveni’s absence from his inauguration, according to Sudanese government sources who spoke to Reuters.

Some ICC states including South Africa along with Botswana and Uganda fought for the watered down resolution on ICC, while non-ICC countries such as Libya, Eritrea and Egypt wanted to maintain the hard-line approach.

However, the resolution on the ICC was changed on Tuesday to a more harsher version to the surprise of many observers who followed the summit closely and it remained unclear what happened behind the scenes at the final hours of the summit.

The text said that the summit “reiterates its decision that AU member states shall not cooperate with the ICC in the arrest and surrender of President al-Bashir of the Sudan.

The Sudan Tribune‘s article — which is entitled, with remarkable forthrightness, “African Union Moves Aggressively to Shield Bashir from Prosecution” — leaves little doubt that the AU has absolutely no interest in bringing Bashir or any other African head of state (i.e., them) to justice.  (To its credit, South Africa has already announced that it will arrest Bashir if he enters the country.)  Here are some “highlights”:

The summit also expressed “concern over the conduct” of the ICC prosecutor and accused him “making egregiously unacceptable, rude and condescending statements on the case of President Omar Hassan al-Bashir of the Sudan and other situations in Africa.”

No, not rude and condescending statements!  How awful of the Prosecutor not to treat a mass murderer with kindness and respect.  Perhaps Scott Gration can give Bashir an extra portion of cookies, smiley faces, and gold stars to soothe his bruised ego…

More on AZ Law Takedown (Hines Redux)

by Peter Spiro

I’ve got some bigger picture thoughts (cautionary, from an alien rights perspective) over at the NY Times Room for Debate.  As for Judge Bolton’s reasoning in her order invalidating key provisions of the law, it is striking how much work Hines v. Davidowitz (1941) does as the centerpiece precedent.

In some ways it’s a good fit.  Hines also involved a (Pennsylvania) state law which purported to mirror federal alien registration requirements.  The Court found struck it down notwithstanding that consistency, which makes Hines a good answer the argument of SB 1070 proponents that consistency with federal law should insulate the measure from preemption.  Hines also supports Bolton’s focus on SB 1070’s effect on legal aliens (an “impermissible burden” on them) — the PA law at issue in Hines applied to all aliens, and the Court there did note the discriminatory aspects of the legislation.

In other ways the reliance on Hines is a stretch.  Justice Black’s opinion is all about the dangers of state activity implicating foreign relations.  “Our system of government is such that the interest of the cities, counties and states, no less than the interest of the people of the whole nation, imperatively requires that federal power in the field affecting foreign relations be left entirely free from local interference. . . .  Experience has shown that international controversies of the gravest moment, sometimes even leading to war, may arise from real or imagined wrongs to another’s subjects inflicted, or permitted, by a government.”  Hines didn’t show solicitude for legal aliens except as subjects of other sovereigns.

Bolton’s opinion, by contrast, connects the dots to foreign relations in only a cursory way.  I wonder why she didn’t do more on this score: there is ample evidence of Mexico’s unhappiness with the Arizona law.  Perhaps because it just doesn’t seem so imperative?  Although Hines didn’t highlight the contemporary context, 1941 was obviously a sensitive moment, one in which any state meddling could have had disastrous consequences.  Any interference with our relations to Mexico are trivial in comparison.

Yesterday’s decision reads more like a rights decision than a federalism one.  In this respect it resonates with the Sugarman line of equal protection cases applying heightened scrutiny to state laws discriminating against aliens.  As such, the reasoning is pretty weak, in the absence of any facial discrimination in SB 1070 against legal immigrants.  The preliminary injunction nonetheless will certainly stand; Bolton’s opinion is within the margin of error for an interlocutory appeal.  I would expect the decision to stand on full review as well.

Trafigura’s One Million Euro Fine for Hazardous Waste

by Kevin Jon Heller

[The following is a guest-post written by Ifeoma Ajunwa, a human-rights attorney who is beginning a PhD at Columbia University in the fall.  Our thanks to her for contributing — KJH]

In April of 2007, as a representative for the NGO, Human Rights Advocates (HRA), I was privileged to attend the 4th session of the United Nations Human Rights Council in Geneva, Switzerland where I presented research before the Council regarding the various ongoing cases of the illicit transfer and dumping of toxic waste in developing nations. Among the cases I presented before the Council was the 2006 dumping of chemical waste in Abidjan, Ivory Coast by the Dutch company, Trafigura. The dumped toxic waste resulted in the death of at least 15 people and the hospitalization of thousands more. This past Friday, a Dutch judge ruled that Trafigura was responsible for the dumping and should be held accountable for the deaths. The judge also issued a fine of 1 million euros against Trafigura. The verdict was based in some part on the 2009 report of U.N.’s top expert on toxic waste, Okechukwu Ibeanu. Ibeanu’s report concluded that “there seems to be strong evidence that the reported deaths and adverse health consequences are related to the dumping of the waste from the Probo Koala” ship, which was chartered by Trafigura.

Human rights groups such as Amnesty International and The National Federation of Toxic Waste Victims in Ivory Coast have rightfully hailed the ruling as a victory. The outcome of this case will have far-reaching implications in ensuring the future corporate accountability of corporations that operate in a multinational manner. For one, the Trafigura case establishes firm precedence that multinational corporations may be brought to justice, in their home countries, for acts that were committed extra-territorially.

There are extant international law instruments that affirm the human right to a healthful environment. The Stockholm Declaration, adopted on June 16, 1972 was the first to explicitly recognize the right to a healthy environment. In 1990, the United Nations General Assembly once again stressed the need to ensure a healthy environment for the well-being of all. Several multi-lateral treaties or agreements have also sought to prohibit or limit the illicit dumping of toxic waste. Among those agreements are, the Aarhus Convention, the Basel Convention, The Ban Amendment, and the Bamako Convention. However, a major limiting characteristic of these instruments is that they only bind sovereign governments and not corporations. Therefore, these agreements may only be used to hold State actors responsible and do not apply to corporate entities (unless they act in a public service capacity).

The 2007 report I presented to the United Nations Human Rights Council proposed the extra-territorial application of environmental laws. At the very least, the Trafigura case indicates a means for immediate relief for victims of the dumping of toxic waste. Those victims should now directly bring a case against corporate entities in courts in the home country of the corporation.

The report also proposed a universal and enforceable declaration of corporate responsibility. Although the corporate code of conduct proposed by the U.N.’s Human Rights Sub-Commission in August 2003 is one good example of a starting point for stronger regulation of multinational corporations, the unfortunate fact is that current codes of corporate conduct, which are voluntary, are largely ineffective at deterring abuses. Following this case, the U.N. should continue to work towards formulating a code of corporate conduct that delineates environmental restrictions for corporate entities that operate in its member states and which would be also be endowed with enforcement mechanisms such as fines, loss of corporate charter, imprisonment and more. The abuse of the environment is a human rights abuse as it impacts the human rights to food, clean water and housing. The U.N. should continue to intensify its efforts to stem the illicit dumping of toxic waste and its detrimental impact on the environment.

The World Court’s Non-Opinion

by John Cerone

[John Cerone is Professor of International Law, and Director of the Center for International Law & Policy at New England Law | Boston]

The World Court’s conclusion that Kosovo’s declaration of independence was not unlawful is being with a resounding “duh” by most international lawyers. The International Court of Justice, in the narrow advisory opinion, simply found that the making of the declaration was not itself an act contrary to international law. Similarly, if I were to stand in my living room and declare it to be an independent state, I would have violated no rule of international law. Even if I were to broadcast that declaration to the world, it would still not be unlawful. It would also not have any legal effect.

It is essential to clarify what the Court did not find. The Court did not find that Kosovo had a right to secede. It did not find that Kosovo’s declaration was legally effective, that the attempted secession was successful, or that Kosovo is otherwise an independent state. It did not find that other states acted lawfully in recognizing Kosovo as an independent State. Indeed, the Opinion does not in any way support Kosovo statehood. It merely cuts off one possible avenue for arguing that the attempted secession is unlawful.

Concerns have already been raised about the potential effects of the Opinion on separatist movements around the globe. Should the Opinion have any knock-on effect? No. It states nothing unusual; virtually nothing has changed as a legal matter. Will it have a knock-on effect? That depends on how the decision is spun by the various stake-holders.

If the Opinion simply maintains the legal status quo on the question of Kosovo’s independence, does this mean that the Court has in some sense abdicated its responsibility? The Court’s restrictive interpretation of the question posted, and its preservation of the legal status quo, is appropriate in this area of the law – one which is driven primarily by political reality. If the overwhelming majority of states endorse Kosovo’s accession to sovereignty, its factual independence will be given the imprimatur of international law. That is not to say that the Court should eschew matters that are politically sensitive. It has, rightfully, consistently rejected such arguments. But where, as here, the law leaves its conclusions to the political process, the Court should sit back and allow that process to come to resolution.

President Bashir in Chad: Enough Failure to Go Around

by Kevin Jon Heller

[The following is a guest-post by Lt. Col. Chris Jenks, the Chief of the International Law Branch in the Army’s Office of the Judge Advocate General.  He is blogging in his personal capacity.]

The day ICC supporters and detractors alike hoped would come, albeit for very different reasons, arrived on Wednesday, July 21st — Sudanese President Omar Bashir publicly visited a State Party (Chad) to the Rome Statute for the first time since the ICC issued a warrant for his arrest on war crimes and crimes against humanity charges in March 2009. Perversely or tellingly depending on one’s perspective, the visit comes just over a week after a July 12th pre-trial chamber ruling which led to a second ICC arrest warrant being issued for Bashir, this time for genocide.

Dov Jacobs has an interesting discussion on whether Chad is legally obligated to arrest Bashir.  Jacobs argues that, contrary to media claims that the ICC warrant in and of itself requires Chad to arrest Bashir, the ICC must request Chad’s cooperation under art. 89 of the Rome Statute and that the request must, under art. 91, contain certain information, including the arrest warrant. Jacob notes that the Rome Statute does not link the art. 89(1) obligation to the warrant itself but that “States Parties shall…comply with requests for arrest and surrender” and that it’s unclear whether has requested Chad do so.

That such a lack of clarity on the mechanics of arrest under the Rome Statute may still exist in 2010, and with the number of fugitives whose arrest is still pending, is disconcerting. But Chad’s reticence is hardly due to not receiving a formal request from the Court. Chadian leaders openly welcomed Bashir with the Mayor of Chad’s capital city of N’djamena presenting him a key to the city.

If nothing else, Bashir’s visit should prompt clarification of States Parties’ obligations and the arrest and surrender process. [And what of the members of MINURCAT (United Nations Mission in the Central African Republic and Chad) currently in Chad? The MINURCAT website trumpets the mission’s role in “protecting civilians, promotion of human rights, rule of law and regional peace”. What if anything is MINURCAT’s obligation with Bashir in Chad?]

Sadly, far from contradicting African Union policy, Chad’s flauntingly deliberate inaction seems in accordance with a 2009 AU resolution which stated that AU members “shall not cooperate” with the arrest and surrender of Bashir. The AU however is not a party to the Rome Statute. Chad is. Whether Chad has met its pacta sunt servanda obligations viz the Rome Statute or not, Bashir’s public presence in Chad, and AU tolerance (if not support), re-raises the question of how serious Africa is in supporting international criminal justice and ending impunity. Or, more unfortunately, perhaps it answers the question.

US Naval War College Conference Video Now Online

by Kenneth Anderson

The US Naval War College international law conference, held in June in Newport, Rhode Island, is now online in video format.  It was a terrific discussion, with great panels and discussants, and I counted it as a privilege to be there.  One reason the video for this conference is so interesting, however, is that the audience – and this year it was a very sizable audience – consists of some of the world’s leading experts in the laws of armed conflict.  Their interventions in the question and discussion sections are … lively, to say the least.  My congratulations to all the sponsors and the organizers.  Check it out, at this page.

Masterchef 1, Politics 0 (Updated)

by Kevin Jon Heller

With an election scheduled for August 21, Prime Minister Julia Gillard and Opposition Leader Tony “Check Out My Speedo” Abbott were set to debate tomorrow night at 7:30 pm.  There was just one problem with that idea…

The debate would have clashed with the Grand Finale of Masterchef Australia.

So what did the political parties do?  They rescheduled the debate for 6:30 pm.

Smart move.  Julia vs. Tony or Adam vs. Callum?  I know which one I would have watched.

UPDATE: Julia and Adam win!

Law Review Citations to Blogs

by Kevin Jon Heller

Dave Hoffman has a post today at Concurring Opinions reporting the results of an empirical study of how often law reviews have cited various blogs.  According to the study, blogs have been cited 5460 times since 2006, with the following blogs representing the top-10 in terms of citations:

  • FindLaw’s Writ — 618 citations
  • Volokh Conspiracy — 402
  • SCOTUSBlog — 305
  • Balkinization — 259
  • Patently-O — 211
  • Concurring Opinions — 162
  • Sentencing Law and Policy — 160
  • JURIST Paper Chase — 130
  • PrawfsBlawg — 122
  • The Becker-Posner Blog — 104

Opinio Juris has been cited 49 times, which makes us the 27th most-cited blog.  I think that’s pretty impressive, given how much more specialized we are than most of the blogs in the top-10 (and in the top-20).

The full Excel spreadsheet is available here.

P.S. My own search reveals 57 citations, which would place us 25th.

The Kosovo Advisory Opinion, Self Determination, and Secession

by Chris Borgen

Now that I’ve had a chance to read through the ICJ’s advisory opinion, following are a few initial reactions. (I will consider the separate opinions in another post.) Marko Milanovic has has done a great job parsing the main issues that were at bar, namely

1. Whether the ICJ should exercise advisory jurisdiction in this case;

2. How broadly or narrowly the question posed by the General Assembly should be interpreted;

3. The legality of the declaration of independence in light of the international law of self determination; and,

4. The legality of the declaration of independence in light of Security Council Resolution 1244.

Around the time of Kosovo’s declaration, I had discussed issues (3) and (4), as well as the substantive issue of recognition in an ASIL Insight and in a series of posts on this blog. I will now return to these issues in light of the advisory opinion.(Issue 1, which is a rich topic but primarily dealing with ICJ practice, I will leave for another post.)

Interpreting the Question

The General Assembly asked the ICJ for an advisory opinion on this question (as drafted by Serbia):

“Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?”

I have heard many lawyers who were befuddled by the wording of the question. Why ask this question, when there seems to be general agreement among jurists that secession is neither legal nor illegal under international law? Why not ask the question that not only seemed closer to the real issue but was also one about which there are real differing views of the state of international law: whether there is an obligation on third party states notto recognize Kosovo, given the circumstances of its independence?  In any case, that was not how the question was worded by the General Assembly. Perhaps there would have been fewer votes for a reference to the ICJ if the ICJ’s ruling could have implicated the legality of the actions not of Kosovo, but of the UN member states who recognized it. Serbia’s wording the question this way might have thus been smart tactics in order to get an ICJ reference, but a strategic blunder in regards to final results.

Perhaps, as well, Serbia was hoping that the ICJ would interpret the question more broadly and opine on the issue of recognition as well as. That was not to be. The Court wrote:

50. The Court recalls that in some previous cases it had departed from the language of the question put to it where the question was not adequately formulated…

51. In the present case, the question posed by the General Assembly is clearly formulated. The question is narrow and specific; it asks for the Court’s opinion on whether or not the declaration of independence is in accordance with international law. It does not ask about the legal consequences of the declaration. In particular, it does not ask whether or not Kosovo has achieved statehood. Nor does it ask about the validity of legal effects of the recognition of Kosovo by those States which have recognized it as an independent State. The Court notes that, in past requests for advisory opinions, the General Assembly and the Security Council, when they have wanted the Court’s opinion on the legal consequences of an action, have framed the question in such a way that this aspect is expressly stated.

Opinion, paras 50 – 51.

If anything, the Court seemed set on reading the question as narrowly as possible. Just the fact that it took time to contrast this case to the Canadian Supreme Court’s task in the Reference relating to the Secession of Quebec from Canada is quite telling. The ICJ wrote (my emphasis added):

56. The question put to the Supreme Court of Canada inquired whether there was a right to “effect secession”, and whether there was a rule of international law which conferred a positive entitlement on any organs named. By contrast, the General Assembly has asked whether the declaration of independence was “in accordance with” international law. The answer to that question turns on whether or not the applicable international law prohibited the declaration of independence.

Opinion, para. 56 (emphasis added).

And so, we turn specifically to the narrow question of whether international law prohibits such declarations… [More through the “Continue Reading” link]

Breaking News: AP Reports ICJ Rules in Favor of Kosovo

by Chris Borgen

According to the Associated Press:

The United Nations’ highest court says Kosovo’s declaration of independence from Serbia did not break international law.

The nonbinding opinion sets the stage for a renewed push by Kosovo for further international recognition of its independence.

Reading the opinion Thursday, International Court of Justice President Hisashi Owada said international law contains no “prohibition on declarations of independence.”

…[snip]…

Kosovo’s statehood has been recognized by 69 countries, including the United States and most European Union nations. Serbia and Russia lead a handful of others in staunchly condemning it.

The opinion is being read at the moment. Once I have had a chance to sift through it, I will post further thoughts. Based on the AP’s pull-out quote, though, it seem that the court has gone for a narrow interpretation of the question that was put before it (“Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?”) and has chosen to rule only on the issue of the declaration itself, rather than on the broader (and more politically contentious and legally difficult) question of recognition by third-party states. If that is the case, then this result in favor of Kosovo makes sense as international law is generally silent as to secession and leaves the issue to domestic law. International law can be relevant in issues where a secession would perpetuate an international wrong (such as an illegal international use of force) but that would be primarily on the issue of recognition, as opposed to the declaration itself. In either case, though, it seems that the ICJ may have cabined-off Serbia’s arguments concerning the (il)legality of NATO’s 1999 bombing campaign.

Once I have a chance to read through the opinion, I will write again on these issues.

For now, here’s Marko Milanovic’s advisory opinion preview, the ASIL Insight I wrote on Kosovo’s declaration of independence, and a later piece comparing the situations in Kosovo and South Ossetia.

CIA Names New Clandestine Service Chief

by Kenneth Anderson

CIA director Leon Panetta has named a new National Clandestine Service chief, reports Peter Finn in the Washington Post today.  The new chief, John Bennett, has been serving as station chief in Pakistan, overseeing in particular the expansion of the drone campaign carried out by the CIA there.  One can safely take that as further evidence that the Obama administration does not take senior, deep participation in targeted killings using drones as something to be embarrassed about; quite the contrary.

Bennett, a former Marine and Harvard graduate, had retired in May after a nearly 30-year career at the CIA, but was coaxed back to take charge of the service, which runs human intelligence and covert operations. Among other posts, Bennett previously served as chief of Special Activities Division, the agency’s covert paramilitary unit ….  While station chief in Pakistan, one of the agency’s most sensitive positions, Bennett was deeply involved in the drone campaign that has killed hundreds of al-Qaeda and Taliban operatives, including at least 20 senior figures.

The Remarkable Arrogance of the ICC Prosecutor

by Kevin Jon Heller

Two items worth noting.  First, as Julian pointed out the other day, Moreno-Ocampo’s refusal to comply with the Trial Chamber’s order to disclose the identity of an intermediary to Lubanga’s defense team has led the Trial Chamber to order Lubanga’s release pending appeal.  (The OTP filed the appeal today). It is bad enough that the “independent statutory obligation” to protect witnesses upon which Moreno-Ocampo is relying does not actually exist.  Even worse is that the organ of the Court most responsible for protecting witnesses, the Victims and Witnesses Unit, does not even agree with him.  Here is paragraph 17 of the Trial Chamber’s decision:

17. On 8 July at 13.51, the VWU informed the Chamber that the disclosure of the name of 143 to the defence under the conditions ordered by the Chamber does not pose a threat to the intermediary.

It takes a special kind of arrogance to think you know better than both the Trial Chamber and the Victims and Witnesses Unit.

Second, and equally troubling, is an editorial that Moreno-Ocampo published yesterday in The Guardian about Bashir’s genocide charges.  A snippet (emphasis added):

The genocide is not over. Bashir’s forces continue to use different weapons to commit genocide: bullets, rape and hunger. For example, the court found that Bashir’s forces have raped on a mass scale in Darfur. They raped thousands of women and used these rapes to degrade family and community members. Parents were forced to watch as their daughters were raped.

The court also found that Bashir is deliberately inflicting on the Fur, Masalit and Zaghawa ethnic groups living conditions calculated to bring about their physical destruction.

Bill Schabas explains what is wrong with these statements:

This is quite misleading. The Court did not find ‘that Bashir’s forces have raped on a mass scale in Darfur’. The Court did not find ‘that Bashir is deliberately inflicting on the Fur, Masalit and Zaghawa ethnic groups living conditions calculated to bring about their physical destruction’.  The Court did not – and would not – do anything to suggest the issue of whether or not genocidal acts had taken place was actually decided.  It merely issued an arrest warrant.  The Court applied a test set out by the Appeals Chamber, based upon article 58.  It said that there were ‘reasonable grounds to believe’ that rapes were perpetrated.  This test is significantly lower than the ‘substantial grounds’ test of article 61.  It is much lower than the ‘beyond reasonable doubt’ test of article 66.  Experts familiar with the Rome Statute and criminal lawyers generally will understand this point.  But the average reader of the Guardian may well be misled by the Prosecutor’s words into believing that the Court actually reached the conclusion that Bashir’s forces raped on a mass scale in Darfur, or that Bashir was deliberately inflicting conditions calculated to bring about the destruction of ethnic groups.

It is unconscionable for Moreno-Ocampo to mislead readers this way.  Indeed, he is simply repeating, in inverse fashion, the mistake that the Pre-Trial Chamber made in its original decision — assuming that Article 58 required the commission of genocide to be the only reasonable inference from the OTP’s evidence, when it only had to be one reasonable inference.  The Pre-Trial Chamber concluded that because non-genocidal inferences were possible, Article 58 was not satisfied.  Moreno-Ocampo is now assuming that because Article 58 was satisfied, no non-genocidal inferences are possible.  But the whole point of Article 58’s low “reasonable grounds” standard is to acknowledge that the OTP is entitled to an arrest warrant even if it is reasonable to infer from the OTP’s evidence either that a crime has occurred or that it has not.  Deciding which inference is the correct one comes later, when the relevant standard is “substantial grounds” (confirmation of charges) or “beyond reasonable doubt” (trial).

It has been a very bad week for Moreno-Ocampo.  I’ll say it again: if things don’t get better in a hurry, the Assembly of States Parties needs to consider removing him.

International Law Plagiarism Charge Bedevils Philippines Supreme Court Justice

by Julian Ku

Is this for real? .  A Phillippines newspaper is accusing a sitting Philippines Supreme Court justice with plagiarizing articles published in law reviews on matters of international law when he authored a key opinion for the court on reparations for comfort women.  The articles supposedly plagiarized include this one by Evan Criddle and Evan Fox-Descent in the Yale Journal of International Law (and featured here at Opinio Juris).

In what could possibly a first in the Supreme Court, a magistrate appears to have committed plagiarism in a decision on a diplomatically and politically sensitive case.

Newsbreak’s review of the decision penned by Associate Justice Mariano del Castillo on World War II comfort women showed that numerous parts were copied from three materials written by legal experts abroad without properly attributing these to the authors.

In April 28, the Supreme Court, through Del Castillo’s ponencia in the Vinuya v. Romulo case (G.R. No. 162230), junked the petition of 70 Filipino comfort women to compel the Philippine government to get a public apology from Tokyo and to provide reparation to victims of sexual abuse during World War II.

It sounds to me like some bad bluebooking, but perhaps it is more serious that that.

An Annoying Mistake in an Otherwise Good 11th Circuit Opinion

by Julian Ku

The U.S. Court of Appeals for the Eleventh Circuit upheld this week the conviction of “Chuckie Taylor” for violating the U.S. Anti-Torture Act, which implements U.S. obligations under the Convention Against Torture. Taylor is the son of former Liberian President Charles Taylor, currently on trial himself in the Sierra Leone Special Court. The opinion is a good and important one since this is the very first discussion of the Anti-Torture Act in a U.S. appellate court.  However, there is one glaring and annoying  (if largely inconsequential error). In rejecting one of Taylor’s appeals, the Court writes:

The only case Emmanuel cites in support of his contrary position is Hamdan v. Rumsfeld, 548 U.S. 557 (2006). The Supreme Court did conclude in Hamdan that a conspiracy to violate the customary international law of war was not an offense punishable under that body of law in a military commission. Id. at 601-12.

Why is this annoying? Because that part of the Hamdan opinion is not a “holding” but merely the opinion of four members of the Court.  (See pp. 601-12 of Part V here).  Justice Kennedy pointedly did NOT join the Court on this point (see p. 638).  So this is a mistake, no doubt by an overworked law clerk (hey, I’ve been there!).  Still, worth a correction, if any law clerks out there are reading! (And don’t forget to cite us when you do!).

RIP, Charles Gittings

by Kevin Jon Heller

Greg McNeal has passed along the sad news that Charles Gittings, a long-time commenter on Opinio Juris, has passed away at an untimely 57.  Here is a snippet from his obituary in the Los Angeles Times:

Though not a lawyer, Gittings had a life-long interest in military tactics and law that led him to become an invaluable resource to some of the nation’s greatest experts in the field.

His death prompted an outpouring of tributes from civil liberties attorneys across the nation who worked with him to try to close the prison at the U.S. naval base at Guantanamo Bay, Cuba.

“How very wrong it seems that Charlie is gone and that Guantanamo continues,” said Thomas Wilner, a Washington lawyer who represented groups of Guantanamo Bay prisoners and often sought Gittings’ advice on their legal rights. “When we finally close that horrible place down, we must put a plaque there commemorating Charlie’s contributions.”

Eugene Fidell, a professor of military law at Yale Law School, said that “when the history of this era is written, Charlie’s contribution and tenacity will be remembered.”

Not long after the Sept. 11, 2001, terrorist attacks, Gittings created the Project to Enforce the Geneva Conventions, a website he ran from his home that compiled memos, court filings, amicus briefs and other evidence of what he believed were war crimes.

At the time, Gittings was divorced and had lost his job as a computer programmer. His interest in the military had been ignited long before, when he read Homer’s epic poems “The Iliad” and “The Odyssey” at age 9. He decided to put his knowledge to work helping the lawyers represent the detainees.

“I was resolved to do whatever I could to help in this crisis,” Gittings said in a recent interview. “You can never prove these things, but I do think I made a difference.”

His evidentiary material was often used by detainees’ attorneys to challenge the George W. Bush administration’s justification for harsh treatment and lengthy sentences without trial. After President Obama took office in January 2009, Gittings turned his attention to the new administration.

Charles’ life is obviously a testament to the idea that anyone can affect the law — not just the lawyers.  His voice, controversial thought it often was, will be missed.

Is the European Union Now a State?

by Julian Ku

Yes, says Daniel Hannan, a journalist and British MEP.  At least under those famous Montevideo factors, now that the E.U. has recently acquired the capacity to sign treaties.

I don’t know if things are quite so easy. For one thing, the E.U. does not itself necessarily consider itself a state, and it is not exactly clear if other states recognize the E.U. as a state.  And if the E.U. is a state, what happens to all those member nations (with all those great soccer teams)?

But Hannan is right that the E.U. is certainly heading in the statehood direction, and that this will further complicate everyone’s relations with it for the near future.

Should the U.S. Ratify Treaties for the Sake of Ratifying Treaties?

by Julian Ku

I agree that the relatively slow progress in U.S. treaty-making is not all the fault of the sluggish Obama Administration.  The Senate no doubt is a big obstacle to treaty-making, .  Still, I think the idea that the U.S. should join treaties, simply in order to show the world that we are willing to join treaties, is a really bad principle to govern lawmaking.  Yet this is the main point of this op-ed in Politico.

As the Senate begins debate on the U.S.-Russia New START arms-reduction treaty, we must not lose sight of a glaring problem in our national security: the impact that the U.S. failure to join major multilateral treaties has on our capacity to exercise global leadership. This failure threatens to make us, in a sad parody of Madeline Albright’s famous phrase, the “dispensable nation.”

The world is not waiting for us. As it becomes clear the treaties we negotiate might never be ratified, our power to shape their formation will wane. The rest of the world will continue negotiating multilateral treaties to shape vital international issues — with or without the United States. This position is dangerous. Each of the threats we face today — terrorism, climate change, poverty, infectious diseases — can only be solved through global efforts and global rules.

It’s time for the Senate — and the White House — to expend the political capital necessary for treaty ratification. There are at least six multilateral treaties that have a reasonable chance of ratification and would demonstrate that the U.S. is back in the business of working with others: the Test Ban Treaty, the Law of the Sea Convention, the Landmines Treaty, International Labor Convention 111, the Women’s Treaty and the recently signed Disabilities Treaty. It is critically important the Senate moves forward on at least one and demonstrates that the U.S. will have a say in writing the rules of the world. Failure to do so risks undermining our capacity to achieve our national security goals.

I think treaties should be judged independently and based on their individual merits. I have simply seen very little evidence that joining treaties irrespective of its policy benefits for the U.S, can itself be a policy benefit for the U.S.  And I really doubt that ratifying the ILO or CEDAW would do much for our ability to write rules on nuclear testing or the law of the sea.  There are ways to get Republican Senators to vote for treaties, but this is not one of them.

ICC Orders Lubanga’s Release; Will Moreno-Ocampo Back Down?

by Julian Ku

The showdown between the ICC and its prosecutor Moreno-Ocampo over the trial of Thomas Lubanga Dyilo continues, as the Court ordered Lubanga’s release.  I assume Moreno-Ocampo will appeal (he has five days), but if his appeal is rejected, this could turn out to be a huge embarrassment for the prosecutor. In any event, it is certainly messy.

Judges at the International Criminal Court have ordered the release of a Congolese militia chief who used child soldiers in the Democratic Republic of the Congo’s civil war.

Sonia Robla, a court spokeswoman, said the decision was rendered Thursday after the prosecution refused to identify the identities of two witnesses during proceedings last week in the case of Thomas Lubanga Dyilo.

France Will Pay Haiti Reparations…Non!

by Julian Ku

This web video nearly fooled people into believing France was about to pay Haiti billions in reparations for payments Haiti made to France ensure its independence. Yes, like that was going to happen. France quickly released a statement declaring the whole thing a hoax.

This hoax was so well done that it leads me to wonder what other interesting statements could be next? Japan apologizing to China for the Nanjing Massacre? North Korea apologizing to South Korea for the killing of South Korean sailors?  Palestinians recognizing Israel’s right to exist?

Is the Dodd-Frank Financial Regulation Bill Unconstitutional? Maybe the IMF Policy Instructions

by Julian Ku

The massive U.S. financial regulation legislation, known as “Dodd-Frank”, is finally heading to President Obama for signature.  In addition to containing a partial reversal of the U.S. Supreme Court’s decision in Morrison v. National Australia Bank, the bill also contains some rather stern instructions for the U.S. representative at the International Monetary Fund.  The instructions are so stern that they would almost certainly have led President Obama to issue a signing statement refusing to abide by this provision due the president’s exclusive constitutional powers over foreign affairs, as he did last year. But due to a new approach announced in January, the President will no longer attach signing statements. He’ll simply ignore those parts of the law that are unconstitutional without actually saying so when he signs the bill. I am not sure this is an improvement, but it seems to make everyone happy. In any event, this provision seems to qualify as one that the Obama Administration will ignore (although we won’t actually know if they will ignore it or not).

SEC. 1501. RESTRICTIONS ON USE OF UNITED STATES FUNDS FOR FOREIGN GOVERNMENTS; PROTECTION OF AMERICAN TAXPAYERS.

The Bretton Woods Agreements Act (22 U.S.C. 286 et seq.) is amended by adding at the end the following:

‘‘SEC. 68. RESTRICTIONS ON USE OF UNITED STATES FUNDS FOR FOR- EIGN GOVERNMENTS; PROTECTION OF AMERICAN TAX- PAYERS.

‘‘(a) IN GENERAL.—The Secretary of the Treasury shall instruct the United States Executive Director at the International Monetary Fund—

‘‘(1) to evaluate, prior to consideration by the Board of Ex- ecutive Directors of the Fund, any proposal submitted to the Board for the Fund to make a loan to a country if—

‘‘(A) the amount of the public debt of the country exceeds the gross domestic product of the country as of the most recent year for which such information is available; and

‘‘(B) the country is not eligible for assistance from the International Development Association. ‘‘(2) OPPOSITION TO LOANS UNLIKELY TO BE REPAID IN

FULL.—If any such evaluation indicates that the proposed loan is not likely to be repaid in full, the Secretary of the Treasury shall instruct the United States Executive Director at the Fund to use the voice and vote of the United States to oppose the proposal.

‘‘(b) REPORTS TO CONGRESS.—Within 30 days after the Board of Executive Directors of the Fund approves a proposal described in subsection (a), and annually thereafter by June 30, for the duration of any program approved under such proposals, the Secretary of the Treasury shall report in writing to the Committee on Financial Services of the House of Representatives and the Committee on Foreign Relations and the Committee on Banking, Housing, and Urban Affairs of the Senate assessing the likelihood that loans made pur- suant to such proposals will be repaid in full, including—

‘‘(1) the borrowing country’s current debt status, including, to the extent possible, its maturity structure, whether it has fixed or floating rates, whether it is indexed, and by whom it is held;

‘‘(2) the borrowing country’s external and internal vulnerabilities that could potentially affect its ability to repay; and

‘‘(3) the borrowing country’s debt management strategy.’’.

ICJ Kosovo Opinion Will Be Released on July 22

by Julian Ku

The much-awaited ICJ advisory opinion on Kosovo will be released on July 22 at 3 p.m (local Hague time):

On Thursday 22 July 2010, the International Court of Justice (ICJ), the principal judicial organ of the United Nations, will deliver its Advisory Opinion on the question of the Accordance with International Law of the Unilateral Declaration of Independence by the Provisional Institutions of Self-Government of Kosovo (request for advisory opinion).

UPDATE: Very fast out of the box, EJIL Talk!’s Marko Milanovic has a long post introducing the issues facing the ICJ in the case.

Breaking: Bashir Charged with Genocide

by Kevin Jon Heller

As I predicted, the Pre-Trial Chamber has approved genocide charges for Bashir:

The International Criminal Court has issued a second arrest warrant for Sudan’s President Omar al-Bashir – this time for charges of genocide.

He already faces charges of war crimes and crimes against humanity, which he denies.

The ICC first indicted him in March 2009 but he has not been arrested.

He is accused over the conflict in Sudan’s western region of Darfur, where some 300,000 people are said to have died in seven years of fighting.

The ICC had initially declined to add genocide to the indictment but this has been overturned on appeal, with the judges finding “there are reasonable grounds to believe him responsible for three counts of genocide”.

Although the political merits are open to debate, this is clearly the correct legal decision.  I’ll have more to say when I’ve had time to read the judgment.

Treaties in the Supreme Court, 1861-1900

by Duncan Hollis

OK, I’ll admit up front that this is a relatively narrow topic.  But I’ve written a chapter on the U.S. Supreme Court’s approach to treaties from 1861 to 1900 (you can download it here).  The project’s initial appeal was participating in this great conference last year at Santa Clara on the history of the Supreme Court and International Law.  Bill Dodge, Mike Ramsey and David Sloss have since done superb work in pulling together a book on the same subject (forthcoming later this year from Cambridge University Press).  My article will serve as the first chapter (after an introduction covering the Framing Period); Michael Van Alstine is writing about treaties from 1901-1946, while Paul Stephan has posted his chapter on the Court and treaties from 1946-2000.  Thus, you might see this article’s value in providing one piece of a larger picture of the Supreme Court’s vision in dealing with not only treaties, but also customary international law and the use of foreign and international sources in interpretation.    

Apart from the larger project, moreover, my chapter demonstrates that the post-Civil War period deserves greater attention as an important formative stage for the Court’s modern treaty doctrine.  The Court initiated both the later-in-time rule and the label “self-executing” during this era.  In terms of take-away points, moreover, I was most struck by how the Court adopted these new rules (which by and large limited the domestic force of U.S. treaties) in cases involving treaties with non-European treaty partners, e.g., Mexico, China, and Native American tribes.  Of course, once created, these doctrines applied more generally.  Still, I was surprised to see such a contrast between the Court’s greater (although certainly not universal) fidelity to treaties with Great Britain, France and Spain and its willingness to find various reasons to deny rights or enforcement of treaties that involved neither European States nor the Great Powers of the day. 

For those interested in more details, here’s the chapter’s abstract: 

This chapter, part of a larger book reviewing the history of the U.S. Supreme Court’s approach to international law, examines the Court’s treaty doctrine between the poles of the Civil and Spanish-American Wars. It finds that – even as the period exhibited much continuity in the Court’s approach to treaties – there were substantial areas of evolution. The chapter offers three different explanatory lenses to examine that evolution: (i) the rise of Congress’s relative power in domestic politics, (ii) U.S. foreign affairs’ increased attention to non-European treaties, and (iii) increasing jurisprudential emphasis on positivism in domestic and international circles.

In terms of the treaty doctrine itself, the Chapter reveals the Court’s continued fidelity to several treaty principles developed at the Framing, especially the ability of treaties to trump state law and the capacity of private individuals to invoke rights and receive judicial remedies pursuant to U.S. treaty obligations. At the same time, it details the origins of the Court’s adoption of a theory of equivalence between statutes and treaties that paved the way for the later-in-time rule. In addition, the Chapter reviews the Court’s often inconsistent experimentation with different methods for interpreting treaties and its elaboration in theory – if not in practice – of the concept of non-self-executing treaties. All told, therefore, this Chapter reveals a more nuanced – and important – set of treaty rulings during the post-Civil War period than previous foreign affairs law scholarship has recognized.

Congratulations to Anthea Roberts …

by Kenneth Anderson

On her new article in the latest AJIL, “Power and Persuasion in Investment Treaty Interpretation: The Dual Role of States.”  Although not the expert Roger and others are on investment law, I’ve read this closely and think it is a blockbuster article.  Anthea Roberts, currently a junior professor at LSE, is one of the brightest and best of the young-young generation of international law scholars.  Here is the abstract from AJIL (it is behind the subscriber wall and not available on SSRN), Vol. 104, No. 2, April 2010.  Highly recommended.

States entering into investment treaties establish dual roles for themselves as treaty parties (with an interest in interpretation) and actual or potential respon- dents in investor-state disputes (with an interest in avoiding liability). By viewing states primarily as respondents rather than also as treaty parties, investment tri- bunals often ignore the relevance and persuasiveness for interpretation of those parties’ subsequent agreements and practice. The approach proposed here seeks to recalibrate interpretive power between states and tribunals by increasing con- sideration of such evidence.

One of the reasons I regard Anthea as such an important rising star is her methodology in international law.  It takes international law seriously, as law, as a rule of decision, mechanism of decision, method of decision, in a way that, for example, I – umm – don’t.  Well, that’s not entirely true.  I do take it that way in exactly this kind of area – investment treaty litigation and arbitration, all sorts of matters of WTO materia.  But I don’t think it carries over to the other stuff of international law, pure public international law.  Anthea Roberts, I take it from her writings on customary law and other things, has a complicated view of all that.  But the nature of her method in all these areas is to deal with law through an internal methodology.  That makes her something of an outsider to American academic public international law scholarship, in which the methodology is very often external – even when reaching normative political conclusions quite antithetical to my own.

We Americans tend, at least by comparison to scholars elsewhere, to believe that the method has to have an important external component to it – and that is so, irrespective of what kinds of normative political conclusions one reaches.  We Americans tend to yawn at the formalism and positivism that holds in many other places, partly because our training in law tends to reject it as insufficient for law as such, and partly just because we have all been trained in some other undergraduate discipline that automatically tends to draw us into external methodologies.

A scholar like Anthea Roberts, however, is that rare academic who is able to bridge both those worlds.  She is not trapped within the narrow circle of positivism; yet she is grounded in legal texts and all that as law in a way that many American scholars do not quite achieve – I include myself, of course – except perhaps in very particular areas such as the minutiae of the ICL criminal tribunals or stuff related to international economic law where the law does indeed appear to be the dominant mechanism of decision.  Her academic upbringing allows her to engage deeply with the external methodologies while still remaining a lawyer’s lawyer in an academic sense as well. Put another way – to go to some of my other posts expressing concern about the fragmentation of sects of international law – she is a communicant at a certain table of worship, but unlike many others in the sectarian world of international law, she is able to see and find more ecumenicism across the sects than many others.

(Yes, clearly a fan.  I also hope it’s clear I’m praising her for a certain kind of cross-cutting methodology; unlike me, she is not a centrist conservative; it’s not her politics I’m addressing here, it’s the method she applies with such rigor in her writing.  But I also remain highly interested as a general matter in the methodology discussions that we had surrounding public international law a couple of years ago here at OJ.  I suggested at the time plotting on some kind of two axis system, political commitments (ranging from sovereignty to liberal internationalism) on one side versus methodology (ranging from normative idealism at one extreme to rational or empirical descriptivism at the other).  I also proposed a third axis, running to how internal or external to law one’s methodology proposed to be.  It’s more complicated than that, and things don’t exactly fit on linear axes.  But I persist in thinking there’s something to it, and not unrelated to the fragmentation of public international law.)

The OTP’s Supposed “Independent Statutory Obligation” to Protect Witnesses

by Kevin Jon Heller

As I noted in my previous post, the OTP argued that it had an “independent statutory obligation” to protect witnesses that permitted it to ignore the Trial Chamber’s order to reveal the intermediary’s identity to the defense.  The Trial Chamber rejected that claim, and rightfully so.  There is no such obligation — or, perhaps more precisely, there is no such obligation that could possibly justify ignoring a Trial Chamber order regarding the protection of witnesses.  First, consider Article 54:

Article 54 — Duties and Powers of the Prosecutor with Respect to Investigations

1. The Prosecutor shall:

(b) Take appropriate measures to ensure the effective investigation and prosecution of crimes within the jurisdiction of the Court, and in doing so, respect the interests and personal circumstances of victims and witnesses, including age, gender as defined in article 7, paragraph 3, and health, and take into account the nature of the crime, in particular where it involves sexual violence, gender violence or violence against children;

3. The Prosecutor may:

(f) Take necessary measures, or request that necessary measures be taken, to ensure the confidentiality of information, the protection of any person or the preservation of evidence.

Note that Article 54’s mandatory provision (“shall”) expressly subordinates “respecting” the interests of witnesses to ensuring the effective investigation and prosecution of crimes.  And note that the provision concerning ensuring the protection of persons is not mandatory (“may”)….

Russian Spies Plea Agreement – Unconstitutional Use of Exile?

by Peter Spiro

At least two of the Russian spies are naturalized US citizens — Vicky Palaez and her husband Mikhail Vasenkov (aka Juan Lazaro).  In Palaez’s case, at least, it looks like there was nothing fraudulent about her naturalization (presumably there’s a case that her husband’s was, though I haven’t seen anyone make it).

As part of the plea agreement, Palaez agrees to cooperate in “her immediate removal or expulsion” from the US, and “agrees never to reenter the United States following removal, for any purpose, without prior authorization” of the Attorney General.  If she re-enters without such authorization, the plea agreement will be null and void, and she’ll be subject to removal or prosecution.

This looks fishy to me — like banishment — and I wonder if there are any precedents.  Unlike Yaser Hamdi, there’s no indication that Palaez has renounced her citizenship.  Citizens can’t be deported — leaving aside the constitutional question, relevant sections of the Immigration and Nationality Act apply only to aliens.  Under international law, states must allow citizens to enter and remain on their territory.  Is this okay simply because it’s voluntarily undertaken as part of a plea?  The mechanism might present an end-run around the sticky question of whether terrorists and others can be expatriated.

Amrita Kapur Responds to Anderson and Roth

by Kenneth Anderson

This, over at EJILTalk!  Amrita responds to earlier posts by Brad Roth and me, in a discussion that started out around an EJIL article of mine, The Rise of International Criminal Law.  We all have since moved the discussion to a variety of things, and Amrita’s response is very interesting and worth reading in continuing those debates.

One of the questions I raised in my original article was the question of time – in effect, I wondered if the answer to most criticisms of the ICC and international tribunals generally was not to simply plead for “more time.”  I called it the “universal solvent” that served as the way of bridging the many problems and gaps.  Lying behind my suggestion, of course, was a further suggestion that the plea for more time simply turned into a form of forever postponing any accounting of success or failure.  I didn’t put this front and center in my article, but have increasingly found myself wondering what might count, even for those enthused about these processes, as criteria of success or failure.  I put that question in my last EJILTalk response, and to her great credit, Amrita has stepped up and given an answer:

Turning to Anderson’s post, I will briefly consider one central question he raises: when are we entitled to say the ICL justice project hasn’t worked? Given the systemic nature of international crimes, perhaps when it becomes clear deterrence has failed and large proportions of societies demonstrate they are as likely as ever to participate in such crimes? Perhaps when societies whose leaders have been prosecuted ‘relapse’ into a situation which sees the repetition of international crimes? Perhaps in a few years time, when other compelling humanitarian cases gain the attention only of the media and not of intervention forces, and R2P is no closer to being a norm? These are dire indications of failure, and perhaps this one question is worthy of a sustained discussion to generate more sensitive criteria.

I say great credit and mean it.  It is hard to find anywhere in the literature – if anyone has other sources, I welcome hearing about them – straightforward criteria for success or failure of the international tribunal justice enterprise.  We can, and should, debate whether Amrita has offered the right set.  But full marks from me for being willing to offer something straight-up.  She is right in saying that this question is worthy of a sustained discussion, so let me urge one here, at EJILTalk, and … everywhere.

In that spirit, let me open the invitation to our readers generally.  What are the criteria of success – but, much more importantly, in considering alternatives and when to entertain them, the criteria of failure for the ICC, for the international tribunal system, for ICL generally?  As Amrita correctly puts the question, when are we entitled to say that the ICL justice project hasn’t worked?  Again, we can argue as to the correct criteria of failure, and we can argue about when, even if we share common criteria, we should agree that criteria of failure have been met.  But it does seem to me a useful step forward to consider what those might be.  Conditions of normative falsifiability, etc.

(Note, however, that I have not addressed the response to Brad Roth in this discussion; it and Brad’s subtly argued position are worth reading, as it takes on both Amrita and me.  If Brad would like to weigh in on this, delighted to put something up.)

(Update:  Of course, I add that I’m open to the argument that framing the question as a matter of asking for criteria of success or failure misframes the enterprise.  I don’t think it does, but I’m open to the possibility.  And the process of arguing why there aren’t criteria of success or failure in a straightup way also sheds light on how one conceives of the whole project of ICL, so it is a useful discussion, I think, all on its own.)

I Think It’s Time to Remove Moreno-Ocampo

by Kevin Jon Heller

I don’t make that claim lightly.  Despite my belief that Moreno-Ocampo has been a disaster as a prosecutor, I have consistently opposed calls for his removal, whether because of his retaliation against an employee for accusing him of sexual harassment or because he decided to pursue genocide charges against Bashir.  I even opposed his ouster when his misuse of confidentiality agreements threatened to destroy the Lubanga trial, because I believed there was a difference between a prosecutor being stupid (by trying to keep documents not only from the defense, but from the judges, as well) and a prosecutor committing the kind of “serious misconduct” or “serious breach of duties” that would justify his removal under Article 46 of the Rome Statute.

Moreno-Ocampo’s latest offense, however, is a different story.  Here is how Dov Jacobs explains it at Spreading the Jam (his emphasis):

Yesterday, Trial Chamber I of the International Criminal Court ordered another stay of proceedings in the Lubanga case because the Prosecutor is consistently refusing to apply orders made by the Court to disclose to the Defense the identity of an victims intermediary, following claims of misconduct. The Chamber had found that there was no security risk for the intermediary in the event of a partial disclosure to selected persons, confirmed by the Victims and Witnesses Unit. Despite this, the Prosecutor argued that:

The Prosecution is sensitive to its obligation to comply with the Chamber’s instructions. However, it also has an independent statutory obligation to protect persons put at risk on account of the Prosecution’s actions. It should not comply, or be asked to comply, with an Order that may require it to violate its separate statutory obligation by subjecting the person to foreseeable risk. The Prosecutor accordingly has made a determination that the Prosecution would rather face adverse consequences in its litigation than expose a person to risk on account of prior interaction with this Office. This is not a challenge to the authority of the Chamber, it is instead a reflection of the Prosecution’s own legal duty under the Statute.

To which the Chamber answered:

27. No criminal court can operate on the basis that whenever it makes an order in a particular area, it is for the Prosecutor to elect whether or not to implement it, depending on his interpretation of his obligations. The judges, not the Prosecutor, decide on protective measures during the trial, once the Chamber is seized of the relevant issue, as regards victims, witnesses and others affected by the work of the Court, and the prosecution cannot choose to ignore its rulings. It is for the Chamber to determine whether protective measures are necessary (following consultation with the VWU under Article 68(4) of the Statute); their nature; and whether they are consistent with the accused’s right to a fair trial. These are issues for the Court, and the Court alone, to determine, having heard submissions and having considered all the information the judges consider necessary and relevant. The Prosecutor now claims a separate authority which can defeat the orders of the Court, and which thereby involves a profound, unacceptable and unjustified intrusion into the role of the judiciary….

Lindsey Lohan, Human Rights Activist

by Kevin Jon Heller

I hope I’m not stepping on the toes of my Wronging Rights friends, but I couldn’t ignore why Linsdey Lohan thinks she doesn’t deserve to be sent to jail for 90 days for violating her probation:

It is clearly stated in Article 5 of the U.N. Universal Declaration of Human Rights that…., “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”

Lohan also Twittered a link to a Newsweek story discussing the Iranian woman sentenced to death for adultery, in case her followers didn’t recognize how absurd it was for her to invoke the UDHR.

I think we should all have a moment of silence for Ms. Lohan — who was, after all, fantastic in The Parent Trap.

The Politics of the ICJ’s Kosovo Opinion: Kosovo Can’t Win, But It Could Lose

by Julian Ku

Morton Abramowitz and James Hooper have a very interesting analysis in the National Interest of the likely effect of the soon-to-be released ICJ advisory opinion in Kosovo.  The analysis is not legal, but political.  And the bottom line, Kosovo is far from out of the woods, even if the judgment is favorable to Kosovo statehood:

No one knows what the court will do, but:

—If the opinion favors Kosovo, that will bring the new state more recognitions to the significant but still underwhelming sixty-nine they have received to date. But they will not win recognition from Serbia nor admission to the UN because of a Russian veto. Nor will Serbia give up its demand for the northern part of Kosovo inhabited mostly by Serbs. Kosovo will have an improved limbo status.

—If the opinion is against Kosovo, the fledgling state will keep its independence but lose some recognitions and the hope of getting into the UN or EU. It will be left in a more dangerous limbo and some serious popular violence against Serbs in Kosovo is quite possible.

—If, as many expect, the court, understandingly fearful of the consequences of its decision, comes down on neither side, many states that have sat on the sidelines of the recognition debate will be more open to recognition, which Serbia well understands. Facing declining international leverage from their resolute opposition, Belgrade will likely seek to open negotiations with Pristina over their future relations. Kosovo, like it or not, will have to engage because its Western patrons will insist. This scenario has both risk and promise and serious ramifications not only for Kosovo and Serbia but also for neighboring Macedonia and Bosnia.

An Egregious Error in Tadic

by Kevin Jon Heller

I discovered the error this morning, as I was re-reading the Appeals Chamber decision for the joint criminal enterprise section of my book on the Nuremberg Military Tribunals.  The decision cites Einsatzgruppen as an example of JCE I, “basic” joint criminal enterprise, and then attributes the following quote to the Einsatzgruppen tribunal (para. 200):

the elementary principle must be borne in mind that neither under Control Council Law No. 10 nor under any known system of criminal law is guilt for murder confined to the man who pulls the trigger or buries the corpse. In line with recognized principles common to all civilized legal systems, paragraph 2 of Article II of Control Council Law No. 10 specifies a number of types of connection with crime which are sufficient to establish guilt. Thus, not only are principals guilty but also accessories, those who take a consenting part in the commission of crime or are connected with plans or enterprises involved in its commission, those who order or abet crime, and those who belong to an organization or group engaged in the commission of crime. These provisions embody no harsh or novel principles of criminal responsibility […].

The Appeals Chamber then claims in footnote 245 that “the tribunal went on to say” that:

Even though these men [Radetsky, Ruehl, Schubert and Graf] were not in command, they cannot escape the fact that they were members of Einsatz units whose express mission, well known to all the members, was to carry out a large scale program of murder. Any member who assisted in enabling these units to function, knowing what was afoot, is guilty of the crimes committed by the unit. The cook in the galley of a pirate ship does not escape the yardarm merely because he himself does not brandish a cutlass. The man who stands at the door of a bank and scans the environs may appear to be the most peaceable of citizens, but if his purpose is to warn his robber confederates inside the bank of the approach of the police, his guilt is clear enough. And if we assume, for the purposes of argument, that the defendants such as Schubert and Graf have succeeded in establishing that their role was an auxiliary one, they are still in no better position than the cook or the robbers’ watchman.

I know all of the judgments extremely well at this point in writing my book, and I could not recall ever seeing a reference to cutlasses and pirates and watchmen in Einsatzgruppen.  So I went to the Green Set and found the volume and page cited in Tadic — Volume 4, page 373.  And guess what I discovered?

Both quotes are from Telford Taylor’s closing argument, not from the Einsatzgruppen tribunal’s judgment.

That, my friends, is an egregious error.  I have no doubt that the the Einsatzgruppen tribunal agreed with Taylor’s statement of the law.  But it is not unreasonable to expect an Appeals Chamber to avoid confusing tribunal judgments with prosecutorial arguments — especially when that Appeals Chamber is relying on case-law to justify reading a controversial mode of participation into the ICTY Statute.

No wonder the ECCC recently rejected the entire concept of JCE III after revisiting the cases that Tadic cited in defense of the concept!  With errors like this one, how can we trust anything the decision has to say?

More on US Lawsuit to Squash AZ Law (Less Wishy-Washy)

by Peter Spiro

Julian’s link to the WSJ blog post forces me to aim for something a little more coherent (apologies, I didn’t know they were doing the interview format – thought they were on the usual fishing expedition for a soundbite or two).  The bottom line: I think there’s a pretty good chance the S.B. 1070 will be enjoined before it goes into force.

Here is DOJ’s press release and supporting documents, including the complaint and brief, both of which are nicely crafted and which persuade me that in one crucial respect the AZ law is too clever by half.

The state law closely tracks federal law (the drafters were advised by UMKC lawprof Kris Kobach, and it shows).  It doesn’t criminalize illegal presence per se, but rather a failure to possess alien registration documents (which undocumented aliens will never have).  Under federal law, presence in the US in violation of immigration law is itself not a criminal offense; failure to carry registration documents is.  But the latter is almost never enforced.  The AZ law is thus technically consistent with federal law, but only technically.  In the filings, DOJ notes that there will be many folks (mostly coming under the umbrella of humanitarian cases — think undocumented Haitians after the earthquake) whom the federal government would let be but might still end up in the clink in Maricopa County.

That said, the argument that S.B. unconstitutionally interferes with foreign relations strikes me as a stretch, for all the reasons that Crosby and Garamendi are weak decisions and the “one voice” mantra (see the brief at 24) is obsolete.  Where the brief cites the 1941 decision in Hines v. Davidowitz to the effect that “Experience has shown that international controversies of the gravest moment, sometimes even leading to war, may arise from real or imagined wrongs to another’s subjects inflicted, or permitted, by a government,” you can see how we’re in another world.  S.B. 1070 may be an agenda item in US-Mexico relations, but it’s unlikely to open up a third front.  If it’s such a big problem, the political branches are free expressly to preempt the state measure.

Nor is Mexico powerless to act.  We’ve got a travel advisory from the government, and the private sector below the border doesn’t have to be told that its business would better be done with Texas and California.  Those are likely to start taking a toll among Arizona voters, certainly those who lose their jobs.  Meanwhile, the Mexican government just filed an amicus brief in a parallel challenge to S.B. 1070, oddly complaining that S.B. 1070 “directly interfer[es] with the U.S. Department of State’s ability to conduct foreign affairs and policy” and “inappropriately burden[s] the uniform and predictable sovereign-to-sovereign relations.”  Hey, it’s a complicated world out there.  Mexico should be able to handle it without an assist from the federal courts, though it may get one here.

Peter Spiro on the U.S. Lawsuit Against Arizona

by Julian Ku

Our own Peter Spiro talks to the Wall Street Journal’s Law Blog on today’s filing of a federal lawsuit against Arizona’s immigration law.  The grounds for the lawsuit, as expected, is preemption, even though most of the political debate about the lawsuit is concerned with racial discrimination.  The choice of preemption confirms my assessment that an equal protection  challenge to the Arizona law would be hopeless.  Peter gives a very fairminded (if somewhat wishy-washy) assessment.  Here is an excerpt:

Hi Peter, thanks for taking the time. So we’re essentially talking preemption here, right?

We are. And it’s not a slam dunk for the federal government, by a long shot. There are major question marks on where the law stands on this. The last time the [U.S.] Supreme Court looked at this issue was in 1976 [in a case called De Canas v. Bica], and the Supreme Court in that case upheld the state regulation related to the documentation of workers.

There’s been a lot of water under the bridge since then, though. One potential variable is that there’s a case concerning a different Arizona law pending at the U.S. Supreme Court. [The Arizona law requires employers to verify the eligibility of prospective employees through a federal database called E-Verify and imposes sanctions on companies that knowingly hire undocumented workers. Businesses and the ACLU have challenged the law, also on supremacy-clause grounds.]

That case could have a significant impact on the one filing today. Or it might not. It’s hard to know how the Supreme Court will treat it.

Is part of the problem that the Arizona law goes farther than federal immigration policy?

I don’t think so. I think the Arizona lawmakers were pretty careful to grasp the law and avoid obvious conflict with federal law. But even if there’s no conflict, the government can still win under a theory called “field preemption.” The feds are likely to argue that regardless of the law’s specifics, Arizona has no business in this “field,” it simply has no business regulating immigration in any way.

Another key case is a 1941 case called Hines v. Davidowitz, in which the Supreme Court struck down a Pennsylvania law on preemption grounds despite the fact that the law didn’t conflict with federal law at all.

What section of the Constitution gives Congress the right to govern immigration?

It’s interesting; nothing in the Constitution says anything about immigration. But it goes back to the late 19th century, in which the power became vested in the general foreign affairs power. Part of the theory is that if you have a state offending a foreign country, it could lead to serious diplomatic disputes.

True. So how do you see this case resolving?

It’s very hard to say. I really could see it going either way.

The Worst Flight Ever?

by Duncan Hollis

Surely one of the great things about a career in international law is the travel.  I consider myself extremely fortunate to have found a profession that afforded me opportunities to visit (or even live in) a diverse set of destinations, whether it was Nairobi or Geneva, Buenos Aires or Jakarta, Osaka or St. Petersburg, and, yes, even Doha in the summer (and those of you who’ve been to Doha will understand my “even” reference).  This June was no exception as I returned to Rome for five weeks to teach international environmental law to U.S., European and Japanese law students (an ironic subject given what the flight does to your carbon footprint).  It was a wonderful trip with great students and a fantastic perch from which to enjoy one of the world’s great cities.    

The flight home, however, reminded me that sometimes you have to pay the piper for all this travel.  Together with my wife and three young children (all under the age of 10), our return trip managed to check almost every item in the list of annoying-but-fortunately-not-dangerous-things that could go wrong on an international flight. Consider the following:

  • Delay boarding of the plane by 30 minutes and then rush boarding to make up for lost time — check.
  • After loading plane, sit on tarmac for an hour and a half as maintenance crew works to fix malfunctioning air-conditioning while outside temperatures approach 90 degrees — check.
  • Fix air-conditioning 5 minutes after Air Canada loses transatlantic flight slot, leading to another hour and twenty minutes sitting on the tarmac — check.
  • Arrive in Montreal 3 hours late but with slim hope of making flight to Newark that leaves within the hour — check.
  • Have Air Canada lose checked bags for all passengers with connecting flights to the United States — check. 
  • Have Air Canada locate bags an hour and a half later, after all possible connecting flights have departed — check.
  • Make passengers fight for space on series of small shuttle buses to Quality Inn Airport hotel — check.
  • Have all Quality Inn rooms filled and direct family to walk, with their luggage, to a neighboring Hilton Garden Inn Hotel — check.
  • Put family of five in small single room as local time approaches 11 pm with warning that to ensure space on the shuttle bus back to the airport, a 3:30 am departure from the hotel makes the most sense — check.

And you get the idea.  Of course, we all made it home safely with no permanent scars from the experience (my kids were great, with the only real tears arriving when we were told we couldn’t get a room at the first hotel, and then again at the second hotel when they initially refused to let my seven year old eat her Subway sandwich in the restaurant while we waited to get a room).  I should also say that virtually all the Air Canada staff we encountered were great — patient, good-humored, and kind (the systemic problems that produced this series of errors were a bit more maddening, especially when I learned that the Rome-Montreal flight the day before had encountered similar delays). 

As I recover for the jet-lag, however, my recent experience made me wonder.  Putting aside the true airline tragedies, how bad can an international flight get?  I’m happy to open the comment thread to get others’ experiences.  I look forward to hearing the (hopefully therapeutic) recitation of how you survived worse.

The Nazis Didn’t Invade Austria and Czechoslovakia? (Updated)

by Kevin Jon Heller

Not according to Yaacov Lozowick, an Israeli historian:

Here’s my input, on a point no-one else seems to be noticing: There was no Nazi invasion of the Sudetenland, no invasion of Slovakia, hardly one of Austria and even less of Bohemia. Nazi Germany brutally invaded many countries, but those weren’t among them. Go check the history books and see if I know what I’m talking about. Glenn Greenwald surely doesn’t.

Lozowick is responding to a recent post by Glenn Greenwald in which Glenn used the Nazi invasion of the Sudetenland, which was overwhelmingly supported by its ethnic German residents, to make the point that, no matter how reprehensible and illegal a particular invasion, it always possible to find some group of people in the invaded country who supported it.  Glenn was calling out Jeffrey Goldberg, whose most recent rationale for the invasion of Iraq (he’s had many, most notably that Saddam was in cahoots with Al Qaeda) was that the Kurds were in favor of it.  That post led Joe Klein to claim that Glenn was arguing that “the liberation of the Kurds… can be compared to the Nazi seizure of the Sudetenland” and Goldberg to claim — even more hyperbolically — that Glenn was comparing “the Iraq war to the Nazi conquest of Europe.”  Both claims were patently ridiculous and can only be explained as deliberate misrepresentations of Glenn’s post, given that Glenn specifically said that “it should go without saying, but doesn’t: the point here is not that the attack on Iraq is comparable to these above-referenced invasions.”

Lozowick equally distorts Glenn’s post, claiming that he “compared the Nazi invasion of Austria, the Sudetenland, and Czechoslovakia, with the American invasion of Iraq.”  What I find particularly interesting, however, is Lozowick’s contention that — as quoted above — “[t]here was no Nazi invasion of the Sudetenland, no invasion of Slovakia, hardly one of Austria and even less of Bohemia.”  I don’t know how the history books describe the Nazis’ actions toward Austria and Czechoslovakia; perhaps they avoid the term “invasion” because the invaded countries didn’t resist.  I do know, however, that the Nuremberg Military Tribunals (1) held that those actions qualified as invasions; (2) held that the invasions of Austria and Czechoslovakia constituted crimes against peace; and (3) convicted two defendants of crimes against peace for participating in those invasions.  Here is the relevant section of Chapter 8 of my book on the tribunals, citations omitted…