Archive for
August, 2010

The Effect of International Law on the President’s Power to Wage War

by Julian Ku

Via Jon Adler at Volokh, I note that the D.C. Circuit issued a fascinating series of opinions today on the effect of international law on the President’s execution of his warmaking powers.  As Steve Vladeck at Balkinization notes, the actual DC Circuit decision was simply a denial of a rehearing en banc of a panel’s earlier decision to reject a Gitmo detainee’s challenge to the legality of his detention under international law.  But the three members of the original panel, Judges Brown, Kavanaugh, and Williams, each appended a very long opinion explaining their further views on this case. While it is true none of it seems to be binding precedent, I hardly think the proper course for lower courts is just to ignore these opinions.  They plainly represent the views of a substantial number of the court’s judges and may eventually prevail.

The reason these opinions are important is that all are focused on the very important conceptual question of whether and how international law affects the President’s powers to conduct the war on terrorism under the authority granted to him by Congress in the September 11 resolution authorization the use of military force (the AUMF).  Two judges argue that customary law cannot limit the interpretation of the AUMF, and one judge suggest that, in some cases, it can.    For those of you outside the U.S. who wonder how the Obama Administration believes it has the authority to use targeted killings against Al Qaeda outside of Afghanistan, these opinions really offer the answer.  Whether or not international law recognizes an armed conflict against Al Qaeda, Congress plainly has authorized the President to engage in the use of military force against Al Qaeda.  On this theory, it really doesn’t matter whether there is an armed conflict as defined by international law. All relevant limitations stem from U.S. treaties and statutes, and not from customary law.

I think this view of how international law impacts the war on terrorism will ultimately prevail.  For the Guantanamo detainees (and for those targeted for killing by the Obama Administration), the correct strategy should be to emphasize their constitutional law arguments. I don’t think their international law arguments are likely to prove decisive.

Call for Papers – Int’l Law Assoc. Asia-Pacific Regional Conference

by Julian Ku

Professor Pasha Hsieh of Singapore Management University School of Law has asked us to alert our readers about the following call for papers for the 2011 International Law Association Asia-Pacific Regional Conference scheduled for May 29-June 1, 2011 Taipei, Taiwan, Republic of China.

The Chinese (Taiwan) Society of International Law is pleased to hold the International Law Association (ILA) Asia-Pacific Regional Conference from Sunday, May 29 to Wednesday, June 1, 2011 at the Grand Formosa Regent Taipei, a Four Seasons Hotel, in Taipei, Taiwan, ROC. The theme of the conference will be Contemporary International Law Issues in the Asia Pacific: Opportunities and Challenges. This conference aims to provide a forum for international law stakeholders to explore the full range of international and transnational legal issues related to the Asia-Pacific region.

Proposals from both scholars and professionals are encouraged on any topic relating to international law with a focus on the Asia Pacific. Subject areas may include, but are not limited to, the following:

General Public International Law

The Use of Force

Asia-Pacific Security

Territorial Disputes

Teaching and Research of International Law

The Law of the Sea

International Frameworks on Fisheries Conservation

International Criminal Law

International Protection of Human Rights

International Economic Law


FTAs and the Cross-Strait ECFA

United Nations and Regional Organizations

Private International Law

Enforcement of Arbitral Awards and Court Judgments

Paper and panel proposals must be submitted electronically by December 20, 2010 to ila [at] nccu [dot] edu [dot] tw. A proposal of no more than 300 words should include the author’s name and full contact information. The conference committee welcomes proposal submissions and conference attendance from ILA members. The conference committee will select proposals and announce the outcome by the end of January 2011. Presenters are required to submit full, referenced papers by April 30, 2011. The Chinese (Taiwan) Yearbook of International Law and Affairs will publish the conference proceedings.

More details on the schedule and topics for papers can be found here.  Sounds like a great conference. I hope to attend myself!

Drone Strikes Against Fox News?

by Kevin Jon Heller

The Washington Post is reporting that a State Department contractor has been charged with leaking defense information to Fox News:

A State Department contractor was indicted Friday by a federal grand jury in the District, becoming the latest target of a series of investigations into unauthorized government leaks to news organizations under the Obama administration.

Stephen Jin-Woo Kim, 43, then a senior adviser for intelligence on detail to the State Department’s arms control compliance bureau, was charged with disclosing national defense information in June 2009 to a national news organization, believed to be Fox News, and lying to the FBI. Kim pleaded not guilty before U.S. District Judge Colleen Kollar-Kotelly.

Although unnamed by the government, Fox News reporter James Rosen wrote a report posted June 11, 2009, saying that U.S. intelligence officials had warned that North Korea planned to respond to a new round of U.N. sanctions with another nuclear test. Rosen reported that the CIA warning was developed through sources inside North Korea.

According to the indictment, Kim disclosed “Top Secret-Sensitive Compartmented Information” that concerned the military capabilities of a foreign nation and intelligence “sources and/or methods,” which “could be used to the injury of the United States.”

I look forward to Marc Thiessen’s impassioned call for Fox News to be prosecuted for espionage and material support for terrorism!  After all, we won’t even have to extradite James Rosen.  (Although perhaps a drone strike would be easier.  Much less paperwork than drafting an indictment.)

ACLU Sues Obama Administration Over Targeted Killings of U.S. Citizens

by Julian Ku

I’m a little late (in blogospheric time) to comment on the ACLU/CCR lawsuit today challenging the legality of the Obama Administration’s policy on targeted killings of U.S. citizens. (Hat Tip WSJ Law Blog) Here is the complaint. It’s is not surprising. As I noted before, the ACLU has been making noises about this lawsuit for several months. And, at least with respect to the targeted killings of U.S. citizens outside an armed conflict, they have a pretty decent argument.

To their credit, the ACLU/CCR is making the narrowest possible legal challenge to targeted killings.  They are challenging “the executive’s asserted authority to carry out ‘targeted killings’ of U.S. citizens suspected of terrorism far from any field of armed conflict.”  The challenge mainly rests on U.S. constitutional due process grounds and focuses only on the targeted killing of a U.S. citizen in Yemen, thereby sidestepping any confusion over the status of the war in Afghanistan or Pakistan.  The complaint also seems to concede that there might be circumstances where such a killing might be constitutional due to emergency circumstances or if the sufficient process was provided.  There is also a challenge based on international law and the Fourth Amendment, but I think the Due Process challenge is the strongest claim.

I am not an expert on declaratory injunctions, but I think that is going to be a problem, for reasons I can’t go into here in detail. I assume there will be a political question defense raised here, and I think declaratory injunctions are uniquely vulnerable to this type of defense. Second, although wisely styled as a rights-based challenge, there are lots of reasons to think the Obama Administration will point out it has broad authority from Congress to engage in this kind of targeted killing.  As a matter of domestic law, expect the Obama Administration to stand on pretty firm ground.

The main conceptual issue, though, is the problem of whether there really is an armed conflict outside of Afghanistan/Pakistan for the purposes of the war on terrorism.  If there isn’t, than presumably Congress’ authorization doesn’t extend to targeted killings to places like Yemen.  And the lack of an armed conflict would weaken the international legal foundation for targeted killings.

This has the potential to be a blockbuster lawsuit, forcing the centerpiece of the Obama Administration’s war on terrorism strategy to go under the legal microscope.  It could be a fascinating case, although I expect there to be innumerable procedural hurdles and delays before we get to any interesting parts of this case.

Rising Seas and Sinking States

by Chris Borgen

Brad Roth has sent along a link to this New York Times editorial, which begins:

If a country sinks beneath the sea, is it still a country? That is a question about which the Republic of the Marshall Islands — a Micronesian nation of 29 low-lying coral atolls — is now seeking expert legal advice. It is also a question the United States Senate might ask itself the next time it refuses to deal with climate change.

The editorial notes that while the Intergovernmental Panel on Climate Change has a “conservative” estimate of at least a 20 inch rise in sea-levels by the end of the century (excluding any effects of the possible melting of the Greenland and West Antarctic ice sheets), some studies predict a 4 to 7 foot increase. The editorial continues:

Officials in the Marshall Islands — where a 20-inch rise would drown at least one atoll — are not only thinking about the possibility of having to move entire populations but are entertaining even more existential questions: If its people have to abandon the islands, what citizenship can they claim? Will the country still have a seat at the United Nations? Who owns its fishing rights and offshore mineral resources?

The government of the Marshall Islands has asked Columbia Law professor Michael Gerrard for advice. Gerrard “notes that an island can become uninhabitable before the sea level rises above it, because even moderate storms can swamp any agricultural land and render freshwater supplies undrinkable.”

On a related note, see Duncan’s post from a couple of years ago on the Maldives.

NYT’s Kristof: Obama’s Sudan Policy is a Failure

by Julian Ku

I don’t want to get into a pointless back and forth with Kevin on the significance of Bashir’s visit to Kenya. I don’t think the details of his visit change my views much. It still seems much more like a slap in the face than a sign of the ICC’s power. But I think we can agree to disagree on this one (UPDATE: See Kenya’s Defense of the Visit as Necessary to Regional Peace).  After all, there are more important issues afoot.  For instance, yesterday’s NYT contained a (to me) stunning column by columnist Nicholas Kristof calling Obama’s Sudan policy a “failure” that could lead to a horrific bloodbath as soon as next year.  Here’s a line to remember:

For all his faults, President Bush inherited a war in Sudan and managed to turn it into peace. Mr. Obama inherited a peace that could turn into the world’s bloodiest war next year.

I have never claimed to be a Sudan expert, but folks like Kristof (who style themselves as Sudan experts of some sort) are beginning to raise the alarm.  The question though is, what exactly is the flaw in the Obama policy?  Is it not being tough enough on Sudan? Or is it being too tough? Kristof can’t seem to decide. His complaint seems to be that Obama is unengaged. (This seems to be a common complaint about Obama, and I think it is unfair. I am not an Obama supporter, but he does have a lot on this plate right now).

In any event, I think we can all agree that the goal here is to prevent the outbreak of another civil war, which Kristof seems to think is imminent.  I can’t see how the ICC arrest warrant helps this goal, at least in the short term.  The better strategy (which does seem to be the Obama policy), is to acknowledge the ICC arrest warrant, but to de-emphasize its importance.  I doubt fulfilling the arrest warrant will be a condition or a requirement of any new peace deal or even any new engagement with the U.S.    I agree that this is pretty horrible on a moral level.  But when you have no other options (and military action is not an option for this president), you have to live with horrible if it prevents mass murder and genocide.

Bashir’s “Visit” to Kenya

by Kevin Jon Heller

Julian’s latest snide swipe at the ICC focuses on Bashir’s visit to Kenya, which he describes as a “slap in the face to the ICC Prosecutor and the defenders of the Bashir arrest warrant.”  Not surprisingly, Julian conveniently fails to mention the details of Bashir’s visit:

Sudanese President Omar al Bashir curiously flew in through Nairobi’s Wilson Airport, and not the traditional Jomo Kenyatta International Airport, The Standard On Sunday can report. And Kenya closed its airspace to facilitate President Bashir’s arrival and departure in a well co-ordinated and guarded operation known only to a few, sources said.

Prime Minister Raila Odinga was kept in the dark over the surprise visit, which has kicked off an international storm in view of President Bashir’s status as a wanted man at The Hague.

Security sources indicated that Bashir had negotiated his security and received guarantees before honouring Kenya’s invitation.


He attended the national ceremony to promulgate the new Constitution but skipped the luncheon hosted at State House, Nairobi, by the President.

The Sudanese leader, whose arrival at Nairobi’s Uhuru Park in the company of Tourism Minister Najib Balala took Kenyans by surprise, has been indicted by the International Criminal Court (ICC) for allegedly perpetrating genocide and crimes against humanity in the country’s Darfur region.

So, Bashir snuck into Kenya without the Prime Minister’s knowledge, attended the Constitution ceremony, and then snuck out without attending the state luncheon.

Yep, that silly arrest warrant has had no effect whatsoever.  All heads of state sneak around behind the backs of their colleagues, don’t they?

Tutsi-Hutu Genocide in the Congo (Updated)

by Kevin Jon Heller

So says a draft UN report that studied events in the Congo between 1993 and 2008:

An exhaustive U.N. investigation into the history of violence in the Democratic Republic of Congo has concluded that the Rwandan military and its allies carried out hundreds of large-scale killings of ethnic Hutu refugees during the 1990s that amounted to war crimes, crimes against humanity and possibly genocide, according to a confidential copy of the report.

The report – which runs 545 pages long and details crimes committed in Congo from March 1993 to June 2003 — represents the harshest U.N. account to date of the conduct of the ethnic Tutsi-dominated Rwandan government, which has largely been credited with liberating the country from the perpetrators of the 1994 Rwandan genocide.

Its release represents a political blow to Rwandan President Paul Kagame, who was re-elected president of his country this month in a landslide election victory that was marred by allegations of political repression against political opponents. His government denounced the U.N. findings as “immoral and unacceptable,” and Rwanda has sought to block the report’s release, according to U.N. sources.

The U.N. inquiry, which was conducted by a team from the U.N.’s Office of the High Commissioner for Human Rights, alleges that Rwanda and its military allies carried out systematic waves of well-planned, highly organized reprisal killings against Hutu refugees in the years after they fled across the border into eastern Zaire, now known as Congo, along with remnants of the former Rwandan military. It also notes that Rwanda’s ethnic Tutsi allies inside eastern Congo were also the target of mass killings and persecution.

The report documents more than 600 incidents of large-scale killings in Congo from March 1993 through June 2003, which it claims constitute war crimes and crimes against humanity. It notes that the “systematic and widespread attacks described in this report reveal a number of damning elements that, if proven, could be classified as crimes of genocide.”

Rwanda’s response — which includes threatening to stop cooperating with the UN, particularly with regard to peacekeeping — is predictable, given its long history of threatening to take its ball and go home whenever the international community dares criticize its (increasingly authoritarian) government.  But it will have a difficult time discrediting the head of the team that conducted the study and that authored the report, my friend Luc Cote, who spent four years as a prosecutor at the ICTR and three years as the chief prosecutor at the Special Court for Sierra Leone before taking over the UNHCHR mission.

Others have already commented on the leaked draft, so I will wait until the report itself is released to offer additional comments.  I did, however, want to respond to this statement in the Washington Post:

The report does not identify individuals believed responsible for the crimes documented in the report, naming only the armed group responsible for such crimes. But it noted that the U.N. High Commissioner for Human Rights, Navanethem (Navi) Pillay, would maintain a confidential database of alleged war criminals that could be used in the event that a court is set up to prosecute them.

There is, of course, a court that is already set up to prosecute at least some of the crimes mentioned in the report: the ICTR.  The tribunal has jurisdiction not only over crimes committed in Rwanda in 1994, but also over “Rwandan citizens responsible for such violations committed in the territory of neighbouring States between 1 January 1994 and 31 December 1994.” Any crime committed in the Congo during 1994 by a Rwandan citizen (which would include crimes committed by Congolese rebels in which a Rwandan citizen was complicit) is thus within the ICTR’s jurisdiction.

The ICTR has, to its great shame, continually turned a blind eye to crimes committed in Rwanda and the Congo by Kagame’s RPF forces.  Perhaps this report will finally spur it to action.

Call for Papers from Greg Gordon: Central States Law Schools Association

by Peggy McGuinness

Our friend and OJ guest contributor Professor Greg Gordon passes along the following call for papers — for international law scholars and other subject areas for the Central Law Schools Association 2010 meeting. Full announcement after the jump:

Kenya Hosts Bashir at Celebration of Its “U.S.-Style” Constitution

by Julian Ku

Lots of ironies in this story about Kenya hosting Sudan’s President Bashir at a ceremony celebrating the establishment of its new “U.S.-style” Constitution.

NAIROBI, Kenya – Kenya’s president signed a new constitution into law Friday that institutes a U.S.-style system of checks and balances and has been hailed as the most significant political event since Kenya’s independence nearly a half century ago.

Joining African leaders at the festivities was Sudan’s president who faces charges of genocide and crimes against humanity in connection with violence in Darfur, where U.N. officials estimate 300,000 people have died.

This is quite a slap in the face to the ICC Prosecutor and the defenders of the Bashir arrest warrant. If Bashir is not prevented from traveling to ICC signatories like Kenya, then the arrest warrant looks even more toothless. As far as I know, the ICC Statute does not contain any sanctions for parties that violate its terms, but I suppose other states or the Security Council could penalize Kenya and Chad for their violations.  I don’t see this happening, which offers yet another reason to think the entire plan to arrest Bashir was probably a dumb idea to begin with.

Arbitration, Chess, and the Whimsical Strongman

by Chris Borgen

It’s not often that you run into a story that combines international arbitration, Kremlin politics, post-Soviet autocrats, utopian urban projects, transnational networks, electoral politics, and chess.  So, read on…

According to the New York Times’ chess blog,

A lawsuit against the World Chess Federation will be heard by arbiters at the Court of Arbitration for Sport on Sept. 15 and 16, two weeks before an election for the presidency of the federation.

The lawsuit by five national federations and the presidential campaign of Anatoly Karpov is seeking to have the ticket of Kirsan Ilyumzhinov, the incumbent, disqualified.

A quick pause here to say a few words about the curious case of Kirsan Ilyumzhinov, who not only has been the president of FIDE, the World Chess Federation, since 1995 but is also the President of the Republc of Kalmykia, an autonomous republic within the Russian Federation.  The New York Times has described Ilyumzhinov as a “whimsical strongman.” (!?)  The BBC, however, notes that

Mr Iyumzhinov denies persistent accusations of diverting the republic’s resources for his own use as well as of human rights abuses and of suppressing media freedom. When Larisa Yudina, editor of the republic’s only opposition newspaper was murdered in 1998, he strenuously rejected allegations of involvement.

What is “whimsical” about a strongman who allegedly steals from his own people (and may even order them killed)? Why, that he would devote millions of dollars to construct on the windswept Russian steppes Chess City— a model city devoted to the glory of chess! (For a travel narrative of two American chess players going to Kalmykia to meet Ilyumzhinov– and many other Kalmyks–and visit Chess City, read The Chess Artist).

Suffice it to say that Ilyumzhinov has intertwined his personal reputation and his republic’s reputation (and finances) with international chess competition. And he is a polarizing figure both in Kalmyk politics and in chess politics. And now his fifteen year reign over the world Chess Federation is being challenged in an international sports arbitral forum… [more via the “Continue Reading” link]

US Submits Its First Report to the UN Human Rights Council

by Kevin Jon Heller

The report is here.  I have neither the time nor the stomach to fully engage with it, but I couldn’t let paragraph 82 pass without comment:

82. The United States is currently at war with Al Qaeda and its associated forces. President Obama has made clear that the United States is fully committed to complying with the Constitution and with all applicable domestic and international law, including the laws of war, in all aspects of this or any armed conflict. We start from the premise that there are no law-free zones, and that everyone is entitled to protection under law. In his Nobel Lecture, the President made clear that “[w]here force is necessary, we have a moral and strategic interest in binding ourselves to certain rules of conduct…[E]ven as we confront a vicious adversary that abides by no rules…the United States of America must remain a standard bearer in the conduct of war.”

This is the clearest statement I’ve found that the US believes — wrongly — that the global war on terror formally qualifies as armed conflict.  (Which is convenient, given the US’s intention to ramp up drone strikes against Al Qaeda in Yemen.)

I also had a nice chuckle at the idea that the US “start[s] from the premise that there are no law-free zones, and that everyone is entitled to protection under law.”  That will certainly be news to the three men (at least) the Obama administration transferred to Bagram so they would not have the right to file habeas petitions, a move recently endorsed by the D.C. Circuit in Al Maqaleh v. Gates.

Dutch Prosecutors to Investigate Peacekeepers at Srebrenica

by Kevin Jon Heller

So reports Reuters:

The Dutch prosecutor’s office said on Friday it would look into whether Dutch peacekeeping soldiers should face criminal charges over the 1995 massacre in the Bosnian town of Srebrenica.

About 8,000 Bosnian Muslim men and boys were killed at Srebrenica after Bosnian Serb forces overran the United Nations-protected enclave where Dutch troops were stationed to protect civilians.

The massacre eventually led to the fall of a Dutch government in 2002 after a damning report by the Dutch Institute for War Documentation into the events surroundings the killings.

The Netherlands has always said, however, that its troops were abandoned by the United Nations, which provided them no air support in the U.N.-designated “safe area”.

In a statement, the public prosecutor’s office said victims’ relatives last month requested an investigation into the massacre, adding a probe would take several months to complete.

It said it would decide whether to hold a full-fledged criminal investigation after completing initial inquiries.

This is an interesting development.  I blogged a few months ago about a Dutch court of appeals decision upholding the UN’s immunity from a civil lawsuit brought by relatives of the Bosnian Muslims killed at Srebrenica.  That was almost certainly the right decision, both legally and practically — forcing the UN to pay damages would only undermine its peacekeeping efforts, however flawed they may be.  A criminal prosecution, however, is a different animal.  On the one hand, the UN would not be directly affected by convictions, and there is no a priori reason why peacekeepers shouldn’t be held accountable for international crimes.  On the other hand, it is reasonable to wonder whether prosecuting peacekeepers for failing to keep the peace would deter states from contributing peacekeepers in the future.  (This situation is a bit different, given that we are talking Dutch peacekeepers being investigated by Dutch prosecutors. I can’t see that happening in the US or UK.)

The other issue, of course, is whether the Dutch peacekeepers really did aid and abet the crimes committed at Srebrenica.  The Reuters article quotes a professor at Utrecht University as saying that “the legal criteria for allegedly aiding and abetting genocide seem not fulfilled here. The mere fact that civilians were handed over to the Bosnian Serbs is not sufficient for criminal liability.”  True enough — the prosecution would also have to prove mens rea.  But the professor’s claim still seems a bit hasty: as Furundzija established long ago, aiding and abetting genocide does not require the defendant himself to possess the specific intent required by genocide; knowledge that the principal offender possesses that intent suffices.  Moreover, even if the peacekeepers did not know that the Bosnian Serb troops intended to commit genocide, they might have known that the troops intended to kill the Muslim men and boys, in which case they might have aided and abetted various war crimes and/or crimes against humanity.

I’ll be keeping an eye on the situation.

20 Things About Americans and the World

by Julian Ku

OK, that’s not exactly the title of this piece at Huffington Post, but the observations from Gary Arndt about Americans and the World sound true to me.  Arndt has been traveling around the world since 2007, for no particular reason (see his travel blog here and yes, I’m very jealous of his life). Here are some my favorites from his list of 20 Things He Learned Traveling Around the World. Most seem about right to me.

4) People don’t hate Americans. I haven’t encountered a single case of anti-Americanism in the last three-and-a-half years. Not one. (And no, I don’t tell people I am Canadian.) If anything, people are fascinated by Americans and want to know more about the US. This isn’t to say they love our government or our policies, but they do not have an issue with Americans as people. Even in places you’d think would be very anti-American, such as the Middle East, I was welcomed by friendly people.

5) Americans aren’t as ignorant as you might think. There is a stereotype that Americans don’t know much about the rest of the world. There is some truth to that, but isn’t as bad as you might believe. The reason this stereotype exists is because most other countries on Earth pay very close attention to American news and politics. Most people view our ignorance in terms of reciprocity: i.e. I know about your country, why don’t you know about mine? The truth is, if you quizzed people about third-party countries other than the US, they are equally as ignorant. When I confronted one German man about this, I asked him who the Prime Minister of Japan was. He had no clue. The problem with America is that we suffer from the same problem as the rest of the world: an obsession with American news. The quality of news I read in other parts of the world is on a par with what you will hear on NPR.

6) Americans don’t travel. This stereotype is true. Americans don’t travel overseas as much as Brits, Dutch, Germans, Canadians or Scandinavians. There are some good reasons for this (big country, short vacation time) and bad ones (fear and ignorance). We don’t have a gap year culture like they have in the UK and we don’t tend to take vacations longer than a week. I can’t think of a single place I visited where I met Americans in numbers anywhere close to our relative population.


12) Everyone is proud of where they are from. When you meet someone local in another country, most people will be quick to tell you something about their city/province/country that they are proud of. Pride and patriotism seem to be universal values. I remember trying to cross the street once in Palau, one of the smallest countries in the world, and a high school kid came up to me and said, “This is how we cross the street in PALAU!” Even crossing the street became an act to tell me about his pride in his country. People involved in making foreign policy should be very aware of this.

13) America and Canada share a common culture. This may irk Canadians, but we really do share a common North American culture. If you meet someone overseas, it is almost impossible to tell if they are American or Canadian unless they have a particularly strong accent, or they pronounce the letter “z.” It is easier to tell where in England someone is from than it is to tell if someone is from Denver or Toronto. We would probably be better off referring to a “North American” culture than an “American” culture. What differences do exist (Quebec being the exception) are more like differences between states and regions of a similar country.

17) English is becoming universal. I estimated that there were at least 35 native languages I would have had to have learned if I wanted to speak with locals in their own tongue. That does not include all the languages found in Papua New Guinea or Vanuatu or regional dialects. It is not possible for humans to learn that many languages. English has become the de facto second language for the world. We are almost to a point where there are only two languages you need to know: whatever your parents speak… and English. English has become so popular it has achieved an escape velocity outside of the control of the US and UK. Countries like Nigeria and India use it as a unifying language in their polyglot nations. Other countries in the Pacific do all their schooling in English because the market just isn’t there to translate textbooks into Samoan or Tongan.

Upcoming BIICL Investment Treaty Forum

by Duncan Hollis

I wanted to flag for interested readers an upcoming event at the British Institute of International & Comparative Law (BIICL). On September 10, BIICL will host its Fifteenth Investment Treaty Forum, with a focus on recent developments in international arbitration procedure. Topics will include disclosure of evidence, state privilege, transparency of hearings, and whether or not investment arbitration is (or should be) different from commercial arbitration. Doak Bishop will provide the Keynote Address.  Other invited speakers include Alejandro Escobar, Vaughan Lowe and Lucy Reed.  For more information on the event and registration details, see here.

Second Circuit Gives Successor States a Blank Slate on Credit Obligations

by Roger Alford

Last month the Second Circuit issued a remarkable ruling that threatens to upend the longstanding rule of successor state liability for the credit obligations of predecessor states. It did so by ruling that the automatic assumption of liability of sovereign debt of the predecessor state under international law is not a “commercial activity” within the meaning of the FSIA. In so holding, the Second Circuit ruled that without some affirmative action by the successor state, it is immune from liability for the commercial obligations of the predecessor state. In other words, each new state starts with a blank financial slate.

The case of Mortimer v. Germany, is complex, involving 1928 local public debt owed by the state of Prussia, a Länder within the German Republic. Following the Second World War, the German Republic was divided into West Germany and East Germany, and then united again in 1990. Thus, since the time the public debt was guaranteed, the government went through two state successions, one in 1949 and a second in 1990. Approximately one-third of the bonds were issued by obligor banks in West Germany, and the remaining two-thirds by obligor banks in East Germany. The current market value of the bonds alleged exceeded $400 million.

The bondholder sought to enforce the bonds against Germany, but to no avail. The Second Circuit ruled that with respect to the West Germany bonds the express assumption of liability for those bonds through enactment of “validation laws” constituted a “commercial activity” within the meaning of § 1605(a)(2), as affirmed in Republic of Argentina v. Weltover. But because the bondholders never validated the bonds the plaintiff, under the Iqbal pleading standard, “failed to plausibly allege that it either met the statutory validation requirements … or was not required to do so.”

The more significant holding is with respect to the East German bonds. East Germany never expressly assumed liability for the Prussian bonds. The question therefore, was whether the plaintiff could identify any “commercial activity” that would satisfy the FSIA standard. The Second Circuit concluded that the plaintiff could not.

“We hold that automatic assumption of liability by a successor state, even if established, would not meet the requirements of the FSIA’s commercial activity exception…. Accession to liability by the rules of customary international law entails no action by the successor state with respect to the commercial activity at issue—the assumption of liability. The state performs no action when it automatically assumes liability. This stands in sharp contrast to a country’s assumption of liability through an explicit act, such as West Germany did here. Because no “action” within the meaning of § 1605(a)(2) occurs when a successor state accedes to liability, the requirements of FSIA’s commercial activity exception are not met in that context and jurisdiction under the FSIA based on such an accession will not lie.”

The problem with this reading, of course, is that it completely ignores the original commercial activity of the predecessor state of Prussia in 1928. When Prussia guaranteed the obligations of the banks, that was a commercial activity under then-existing international law. The Second Circuit makes no mention whatsoever of this activity, nor does it recognize the retroactive application of the FSIA as affirmed by the Supreme Court in Austria v. Altmann.

The result of the Second Circuit’s holding is to render claims against the commercial debt of a predecessor state unenforceable, absent express assumption of liability by the successor state. It effectively transforms the customary international law rule of automatic successor liability for public debt into one of conditional successor liability. The effect of this ruling is to preclude creditors from enforcing all predecessor public debt against state successors, at least in the financial headquarters of the United States.

(Disclaimer: Tai-Heng Cheng and I wrote an amicus brief on the issue of successor liability in support of the plaintiff).

The Multilateralist’s Persuasive Defense of the ICC: The U.S. Doesn’t Have to Worry About the ICC, As Long as It Stays Out of the ICC

by Julian Ku

In the interests of being fair and balanced (as always!), I thought I would post on this good response by David Bosco to Jeremy Rabkin’s recent essay on the International Criminal Court in The Weekly Standard (which I discussed here).  Although I am not totally convinced by it, I think Bosco offers the best possible defense of the ICC that would be persuasive to U.S. policymakers.  In a nutshell, he agrees with Rabkin (and many others), that the ICC effort to define aggression is a “dead end” and that it would ultimately favor non-state actors and terrorist organizations.  But he offers a measured defense of the ICC against Rabkin’s broader attacks. In essence, he seems to be saying that aggression is not much of a problem for the U.S. since it is staying out of the ICC and has successfully limited the jurisdictional scope of the ICC over aggression crimes.  Second, he points out that the ICC (contrary to Rabkin’s earlier predictions) has not proved to be an instrument of anti-American policy that has threatened any U.S. self-defense interests.

Bosco makes some good points.  But there is a certain irony in this kind of defense of the ICC for someone who (probably) supports eventual U.S. ratification of the ICC statute, since it depends on the U.S. continuing to stay out of the ICC.  It is true that the U.S. has not been the subject of an ICC investigation yet.  But I think even Bosco would concede that the main reason the U.S. has not been the subject of an ICC investigation is because the U.S. refused to join the ICC.  Had the U.S. joined the ICC, there is no question in my mind that the U.S. would be subject to numerous ICC investigations related to interrogation policy, Guantanamo, military commissions, targeted killings, and the Iraq and Afghanistan wars.  Bush administration folks would be under investigation, but so too would Obama administration folks.  If Bosco thinks differently, I would love to hear him explain why.  I seriously doubt, for instance, that the principle of complementarity under the ICC statute would have been satisfied in the case of the “torture memos.”

Indeed, for many ICC supporters, the whole point of the U.S. joining is to punish alleged U.S. wrongdoing and prevent future U.S. wrongdoing.  It is odd that the most persuasive defense of the ICC relies on its toothlessness and the fact that opponents of the ICC (like Rabkin) have successfully persuaded U.S. decisionmakers to stay out.

Can the U.S. Prosecute Wikileaks’ Founder? Sure, If They Can Catch Him

by Julian Ku


The WSJ has an article on the U.S. Defense Department’s push for a criminal prosecution of Wikileaks for releasing U.S. government documents on the Afghanistan war.

Several officials said the Defense and Justice departments were now exploring legal options for prosecuting Mr. Assange and others involved on grounds they encouraged the theft of government property.

Bringing a case against WikiLeaks would be controversial and complicated, and would expose the Obama administration to criticism for pursuing not just government leakers, but organizations that disseminate their information.

I agree it would be controversial, and probably counterproductive, to try to prosecute Wikileaks’ founder Julian Assuange.  But as a legal matter, I don’t think there are many obstacles to his prosecution under U.S. law, as conservative Marc Theissen argues here.

The most relevant law, the Espionage Act, would seem to cover Assange’s alleged conduct.

(a) Whoever, for the purpose of obtaining information respecting the national defense with intent or reason to believe that the information is to be used to the injury of the United States,…(b) receives or obtains or agrees or attempts to receive or obtain from any person, or from any source whatever, any document, . . .  knowing or having reason to believe, at the time he receives or obtains, or agrees or attempts to receive or obtain it, that it has been or will be obtained, taken, made, or disposed of by any person contrary to the provisions of this chapter;

Obviously, there is an intent issue here (Did Assange obtain the info for the purpose of or with reason to believe it would be used to injure the U.S.?), but I actually don’t think that would be a problem.  Wikileaks’ lawyer seems to think that the real problem is Assange’s nationality and the fact that Wikileaks does not have a presence in the U.S.  But this is not a problem at all.

The Espionage Act has long been held to apply to foreign nationals who commits acts while abroad (see U.S. v. Zehe, 601 F.Supp. 196 (D. Mass 1985).).  The only problem seems to be actually capturing Assange.  It is worth noting, of course, that abducting Assange, even in violation of the sovereignty of a country where the U.S. has an extradition treaty, would not prevent a U.S. court from trying him. (See U.S. v. Verdugo-Urquidez, 494 U.S. 259 (1990)).  And finally, Wikileaks may or may not have a First Amendment defense, and even if it does, the precedent of NY Times v. U.S., 403 U.S. 713 (1971), (the Pentagon Papers case) only seems to prevent prior restraint.  Post-publication prosecution is probably OK under the First Amendment.

So Wikileaks really does have serious legal exposure, and pretty weak legal defenses. I hope they are getting better U.S. legal advice than the WSJ article describes. And if I were Assange’s lawyer, I would advise him to avoid the U.S., and international waters and airspace, for as long as possible.

Assessing Kampala: The U.S. Could Have Done Worse, But Still Did Pretty Badly

by Julian Ku

I have been negligent in failing to post on two excellent assessments of the recent ICC Review Conference in Kampala and its ultimate decision on aggression.  Both assessments (one by Heritage’s Brett Schaefer and the other by George Mason’s Jeremy Rabkin) give the Obama Administration some credit for limiting the damage to U.S. interests at Kampala.  But both ultimately conclude (and I agree) that the ICC entering into the business of prosecuting aggression is bad news for U.S. interests and for the world.

Here is Schaefer:

Overall, the U.S. effort at the International Criminal Court Review Conference in Kampala was a qualified success. The outcome could have been much worse. While the conference adopted the Belgian amendment, creating a precedent for criminalizing the use of additional weapons as war crimes under the Rome Statute, the U.S. did succeed in minimizing the immediate risks to U.S. interests and nationals. The conference also passed a resolution that, if confirmed by future action by the states parties, would grant the ICC jurisdiction over the crime of aggression. Critically, the U.S. was successful in persuading the states parties to restrict the ICC’s jurisdiction over aggression in several significant ways that should help protect U.S. interests. However, the Obama Administration’s modest success in Kampala did little to address ongoing U.S. concerns about politicization of the court and illegitimate claims of ICC jurisdiction over U.S. service members and officials charged with war crimes, crimes against humanity, and genocide. The U.S. should not consider ratifying the Rome Statute until all of its serious concerns about the ICC are completely resolved.

Rabkin has a similar, but more critical take.  In his view, the entire ICC enterprise will result in no actual reduction in actions of military aggression, but simply weaken the ability of liberal democracies to resist war crimes, military aggression, and terrorist attacks.  Indeed, as he points out, the ICC continues to have no jurisdiction over non-state actors like Al Qaeda and very limited ability to punish states that support terrorist organizations.  The entire attempt to legally define and constrain aggression represents silly but dangerous wishful thinking.

What happened this summer was that the Obama administration decided it was easier not to disrupt this pleasant fantasy than to meet its responsibility to protect those who carry out the national security policies of the United States. Instead, the United States showed the world that it has rejoined the “international consensus” so rudely disrupted by the Bush administration. It will be years before we have to say we don’t actually share the premises of this latest dream of “peace through law.” And by then—we’ll have balanced the budget and gotten our debt under control, so we’ll be better able to confront this external challenge.

The problem is that, in the absence of a world legislature, advocates of international law tend to treat silence as consent (and they treat incoherent mumbling as equivalent to silence). That is how “consensus” leading to new “customary international law” gets established. A new “consensus” gained a lot of momentum at Kampala without any serious opposition from the United States. The world took another large step toward isolating and stigmatizing the American understanding of the “inherent right of self-defense.”

It will be important, in the next few years, to put the world on notice that we don’t, in fact, mean to go along with the subsequent stages of the project that the ICC represents. But we can’t now rely on the Obama administration to stand up for our sovereign rights. Time for others—especially in Congress—to start doing so before it’s too late to say, “We didn’t really mean it.”

As I have written before, there is surprisingly broad consensus in the U.S.  (among the spectrum of opinion that includes both Michael Glennon and Harold Koh), that the ICC’s crime of aggression was nothing but a disaster for the U.S. and for the ICC as well.  Although both Schaefer and Rabkin are writing from the right, I think their critiques accurately represent the U.S. political consensus.  The question for the new administration of 2017 (when aggression finally fully kicks in and when President Obama is finally out of office) is what to do about it.

Glazier on Why the Definition of Piracy Matters

by Kevin Jon Heller

Dave has kindly sent another post on piracy.  Here it is.

Kevin graciously offered me the chance to respond to his contrasting reading of the logic of Judge Jackson’s decision dismissing the piracy charge. But since we both reach the same ultimate conclusion—that the correct legal definition of piracy should be that contained in the 1958 High Seas Treaty/1982 UN Convention on the Law of the Sea—I’m happy to let those readers with sufficient interest read the court’s opinion and decide which (if either) of us they agree with. It is a close call and Kevin may well have a better read on it. (I also share his concerns about the invalidity of Khadr’s charges, by the way).

What I think would be a more helpful contribution to this dialog would be to articulate why I think the definition of piracy matters on a larger scale. It probably doesn’t matter much in this case; Said and his comrades still face seven other federal charges and could very well end up with prison sentences tantamount to life terms even without the piracy charge. The real problem with this decision is its potential to weaken overall anti-piracy efforts off Somalia.

Let me first state that I don’t think I’m overly naïve. I have spent some time studying the history of piracy and the results of that inquiry are quite clear. Pirates have always been dependent on shore bases where they can recruit crews, outfit their vessels, and return to enjoy the fruits of their activity, either with the tacit approval of local government or in areas without functional authority. Although naval efforts afloat have been important, ultimately the eradication of pirates, whether based in past hotbeds in England, colonial America, the Caribbean, or South East Asia, was dependent upon the establishment of effective governmental authority ashore. So history tells us that the only permanent solution to Somali piracy will be the reestablishment of an effective Somali state.

In the interim, international naval and judicial efforts can at least endeavor to damp down the volume and provide some measure of deterrence. Naval operations face a daunting challenge. Pirates generally have not been definitively identified until they commence an attack, giving naval forces a very small window of opportunity to react. Once an attack is successful, the risk of harm to the now captive crew and damage to the vessel generally leads to the conclusion that non-forcible means (i.e., paying ransom) are the only prudent solution, and the prospects of interdicting successful pirates heading ashore after receiving their ransom are fairly remote. As a result, most captured Somali pirates are similarly situated to those at issue here—they have launched an ultimately unsuccessful attack. The treaty definition of piracy, which is not limited to robbery but includes “any illegal act of violence . . . committed for private ends” on the high seas by the crew of one vessel against another as well as “any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship” are logically sufficient to allow the invocation of universal piracy jurisdiction over participants in failed attacks. It also offers the potential, not yet actively employed, that armed individuals on small unregistered vessels lacking fishing gear and proximate to shipping lanes could be presumptively treated as pirates based on the language about operating a pirate ship. Eugene Kontorovich tells me that a similar presumption was a key element of 19th century anti-slavery efforts, allowing the interdiction and seizure of vessels headed to Africa that were outfitted to carry slaves but had not yet taken onboard a human cargo.

Judge Jackson’s interpretation, requiring an actual robbery, eliminates not only the potential for preemption before an attack is launched but also piracy prosecutions for failed attacks. If this stands as the final U.S. legal interpretation, it becomes much more likely that regional countries like Kenya and the Seychelles will decline to accept pirates turned over by third countries, including particularly the United States, for prosecution. Any defense attorney worth his salt will insist that the U.S. position proves that international law still requires an actual robbery, current treaty language not withstanding.

I’m not suggesting that the U.S. should adopt a legal interpretation based on expediency, but rather that what I believe to be a truly erroneous decision, both as a matter of international and U.S. law, has potential consequences well beyond the scope of the cases at issue. If the government doesn’t get its act together and provide more coherent arguments on appeal, the U.S. Navy could find itself joining those other forces off Somalia treating pirates like trout; i.e., joining the “catch and release” program.

(While some acts beyond the definition of piracy can potentially be prosecuted under quasi-universal jurisdiction based on the Suppression of Unlawful Activity (SUA) Convention, the specific definitions found in that treaty would still exclude many attempted attacks – including ones on warships which are at issue in the two sets of Norfolk cases. While SUA is a deliberate effort to overcome problems in the international definition of piracy, it is primarily the “high seas,” “two vessel,” and “private ends” requirements that it addresses, responding to issues raised by cases like the Achille Lauro hijacking and not the Ashland incident.)

The Chickens Come Home to Roost — U.S. v. Said

by Kevin Jon Heller

I have to respectfully disagree with Dave’s interpretation of Judge Jackson’s decision.  The decision is almost certainly incorrect from the standpoint of the law of nations; as Dave rightly points out, the definition of piracy in the High Seas Convention and in UNCLOS likely represents the customary standard.  But I think Judge Jackson’s decision makes complete sense given the US’s Alice-in-Wonderland approach to international law, whereby the Congress simply defines the “law of nations” as it pleases, no matter how idiosyncratic — read: wrong — that definition may be.  In other words, Said is the judicial cousin of the Military Commissions Act, which pretends that the “law of war” includes murder, conspiracy, and material support for terrorism in order to allow the US  to prosecute “terrorists” in military commissions instead of in civilian courts.

I have no problem with Dave’s syllogism, which I think accurately describes Judge Jackson’s decision.  My disagreement comes with this statement:

It would be relatively straightforward IF the 1819 statute (now 18 U.S.C. § 1651) stated the elements of the crime of piracy. Unfortunately it only refers to “piracy as defined by the law of nations.” Judge Jackson determines that the U.S. Supreme Court’s 1820 decision in U.S. v. Smith, upholding the validity of the 1819 statute while declaring that piracy is “robbery or forcible depredations . . . upon the sea” provides the applicable definition. While the court discusses subsequent cases and scholarship, it is dicta under the decision’s logic, and most sources simply refer back to Smith anyway.

I think that the “subsequent cases” are anything but dicta in the opinion.  Indeed, Judge Jackson’s holding depends on them.  Dave seems to believe that Jackson disagrees with the idea that “since the 1819 statute refers to the law of nations rather than to a specific definition of piracy, what logically ought to be locked in by the rule of interpretation the court relies upon is the reference to the law of nations, not the definition of piracy contained therein.” But I don’t think he does: although the judge states that he “must determine… what Congress meant by piracy as defined by the law of nations, as stated in sec. 1651 at its 1819 enactment,” he then immediately acknowledges that “since the statutory language of sec. 1651 is devoid of any guidance on the scope of piracy as defined by the law of nations, the Court must examine any relevant judicial decisions to answer this question” (p. 6).  Judge Jackson thus accepts that the object of his inquiry is how the law of nations defines piracy; he simply believes that the appropriate method of identifying that definition is to look at US judicial decisions on the subject.

Judge Jackson then proceeds to canvass the decisions themselves.  He begins with Smith, which essentially defines piracy as “robbery upon the seas.”  But he does not limit piracy to the Smith definition.  On the contrary, he specifically rejects the government’s argument that piracy is not limited to “robbery upon the seas” by insisting that “the discernible definition of piracy… under sec. 1651 has remained consistent and has reached a level of concrete consensus in United States law since 1820.”  He cites a number of federal decisions to that effect, such as the Sixth Circuit’s 2007 decision in Taveras, the Eleventh Circuit’s 2006 decision in Madera-Lopez, the 1841 Supreme Court decision in Schooner Amistad, and a bunch of other federal cases from the late 19th century.  All agree with Smith that the law of nations defines piracy as “robbery upon the seas.”

Again, this line of cases is almost certainly wrong.  But to describe all of the cases after Smith as dicta misses the fundamental problem with Judge Jackson’s decision: its animating assumption that “United States law since 1820” accurately reflects the law of nations concerning piracy.  United States law since 1820 does not accurately reflect the law of nations, just as the Military Commissions Act does not accurately reflect the law of war.  By treating the US cases as a reliable proxy for the law of nations, therefore, Judge Jackson necessarily reached the wrong conclusion.

So, was Said wrongly decided?  The answer, paradoxically enough, is both yes and no.  As Dave notes, Judge Jackson should have relied on the High Seas Convention and UNCLOS instead of on Smith and its progeny for the definition of piracy.  So from a “real” law of nations perspective, the decision is clearly wrong.  But I think the decision is absolutely correct as a matter of US law, which has consistently assumed that the law of nations is more narrow than it actually is.  Indeed, as Judge Jackson points out (p. 12), because Congress specifically criminalized violent acts short of “robbery upon the seas” in 18 USC 1659, adopting a broader definition of piracy would effectively nullify that section.

In the end, then, I think the title of this post — “The Chickens Come Home to Roost” — is an accurate one.  If Congress wants to rely on international law (the law of nations, the law of war) to define domestic crimes, it needs to accept the fact that international law does not always take the position that the US wants.  When it comes to pirates and the law of nations, it does — the defendants in Said probably did commit an act of piracy, no matter what Smith and its progeny say.  But when it comes to “terrorists” and the law of war, it does not — murder, conspiracy, and material support are not war crimes, no matter what the Military Commissions Act says.  The US should not be able to make use of international law only when it is convenient, relying on it when it wants to sentence pirates to life imprisonment, ignoring it when it wants to avoid trying “terrorists” in civilian courts.  So forgive me if I find Judge Jackson’s decision in Said, incorrect though it may be, more than a little satisfying.

P.S.  Just to be clear, Dave has been one of the most intelligent critics of the Military Commissions (see the links on his homepage here), particularly concerning the crimes within its jurisdiction, so I am in no way implying that he endorses the misguided approach to the law of war on which they rely.  We also don’t disagree about piracy under the law of nations.  I am simply taking issue with his reading of Judge Jackson’s decision.

How to Define Piracy (Cont’d): A Critique of U.S. v. Said

by David Glazier

[We are pleased to have David Glazier, a professor of law at Loyola Law School Los Angeles, share his thoughts on the U.S. District Court’s recent interpretation of the piracy statute in U.S. v. Said]

As I read Judge Jackson’s decision, the crux of his holding boils down to the following syllogism:

(1) Federal criminal statutes must be interpreted according to the meaning of the words at the time they were enacted;

(2) The language in the current piracy statute was originally enacted in 1819; therefore,

(3) The current definition of piracy must be that understood in 1819.

The facts stated in the indictment are simply that “at least one person on Defendants’ skiff shot a firearm” at the USS Ashland. This act must either fall within the legal definition of piracy or the judge must dismiss this count. A literal reading of the Smith language excludes mere attempts at robbery, hence the decision to dismiss.

It would be relatively straightforward IF the 1819 statute (now 18 U.S.C. § 1651) stated the elements of the crime of piracy. Unfortunately it only refers to “piracy as defined by the law of nations.” Judge Jackson determines that the U.S. Supreme Court’s 1820 decision in U.S. v. Smith, upholding the validity of the 1819 statute while declaring that piracy is “robbery or forcible depredations . . . upon the sea” provides the applicable definition. While the court discusses subsequent cases and scholarship, it is dicta under the decision’s logic, and most sources simply refer back to Smith anyway.

I see two flaws in the court’s logic.

First, as Eugene Kontorovich has already noted, the Smith holding simply states that robbery is piracy (all that was necessary under the facts of that case); it doesn’t say that only robbery is piracy.

Second, since the 1819 statute refers to the law of nations rather than to a specific definition of piracy, what logically ought to be locked in by the rule of interpretation the court relies upon is the reference to the law of nations, not the definition of piracy contained therein. While the court does find some modern sources stating that the definition of piracy is unsettled in customary international law, that view flies in the face of the two widely ratified treaties, the 1958 High Seas Convention and the 1982 UN Convention on the Law of the Sea which include the same definition in reasonably precise language. Given Senate advice and consent to the ratification of the 1958 treaty, it seems to me that language fairly becomes the operative definition of piracy for U.S. courts under the last in time rule and the supremacy clause. So even a judge with an aversion to international law in general can ground their decision in written federal law. Oddly, however, the court treats these two widely ratified treaties, including one that is the law of the land, as mere secondary sources entitled to no more weight than scholarly commentary. I think that is a fundamental error.

The treaty language, ratified by both the U.S. and Somalia, surely satisfies the constitutional due process requirement which the court noted requires fair warning that the defendant’s conduct is proscribed. Surely it is fairer to hold a Somali defendant to notice of a treaty his (admittedly dysfunctional) nation has ratified than to a foreign 1820 Supreme Court decision. I haven’t read any of the parties’ filings, but from the text of the opinion it appears that both sides engaged in a battle of law office history, using often obscure historical examples to bolster their positions. I would hope that on appeal, and certainly in the other ongoing Norfolk piracy case with similar facts, the government will argue for the application of the treaty language as effective law rather than as a mere secondary source.

My crystal ball predicts the Fourth Circuit will reverse if the government makes more coherent arguments on appeal.

How to Define Piracy (Cont’d): U.S. Judge Dismisses Piracy Charges

by Julian Ku

In the first U.S. court opinion on piracy since 1820, a U.S. judge in Norfolk, Virginia has dismissed piracy charges against Somali defendants in United States v. Said. The Court held that attempted piracy is not piracy for the purposes of U.S. criminal law.  (h/t  Eugene Volokh).

As I mentioned in an earlier post, the relevant U.S. statute criminalizing piracy leaves its definition to “the law of nations.” I guessed (wrongly) that the Court would adopt a Sosa-like approach to incorporating norms of international law into U.S. law and find that attempted robbery at sea sufficiently well-accepted by contemporary international consensus to support a criminal law violation.  To my surprise, the Court seems to have held that it is obligated to use the definition of piracy as it was understood under the law of nations in 1819, when the U.S. piracy statute was enacted. It refused to rely on contemporary international definitions of piracy on the grounds that they are either irrelevant or too uncertain to constitute a clear definition.

I don’t know that much about the law of piracy under contemporary international law, but I am a bit surprised that there would be the lack of consensus on the question of whether attempt constitutes piracy.  My impression is otherwise, and in fact none of the sources the Court cites for the proposition that piracy is undefined under contemporary international law seem to be talking about the attempt issue.  Prof. Eugene Kontorovich has more discussion of the case over at the Volokh Conspiracy, and he seems to think that the Court is just wrong on this point.  Piracy definitions may be controversial, but probably not on this point.

And like Prof. Kontorovich, I am a bit unsure what I think of the result here.  I understand that a judge would want to give the benefit of any doubt to the criminal defendants here, but I am doubtful of the Court’s seeming embrace of the “frozen in 1819” approach to interpreting the piracy statute.  Given explicit delegation of interpretive power by Congress, the international consensus and executive branch practice in favor of including attempts as part of “piracy,” I am tempted to side with the government here.  But the Court’s result is certainly defensible.  It is also appealable, although the government may not bother since they have plenty of other non-piracy charges to use against the defendants.

Welcome to the Blogosphere, Multilateralist!

by Kevin Jon Heller

Foreign Policy has added a new blog to its roster that should be of interest to readers.  Here is the description of the blog, named The Multilateralist and run by David Bosco, an assistant professor at American University’s School of International Service and the author of the excellent Five to Rule Them All: The UN Security Council and the Making of the Modern World:

States need to work together, but they often aren’t sure how. Building an organization makes cooperation seem real — nothing says multilateralism like an international secretariat and a headquarters with a bunch of flags flying outside. The world now has a dizzying and often confusing array of these multilateral institutions. Sometimes clumsy and sluggish, they are still a critical part of the diplomatic ecosystem.

Multilateralism may be here to stay, but it isn’t always easy to understand. Layers of bureaucracy sometimes obscure important debates. Each international forum has its own history, traditions and procedures. Some of them are written: It takes nine votes to pass a U.N. Security Council resolution and 85 percent of votes for the International Monetary Fund to make key decisions. Other “rules” won’t be found in any document or treaty: The top job at the United Nations never goes to an American; the World Bank presidency always does.

Through reporting and analysis, The Multilateralist will help its readers navigate this world. It will work to decipher some of its hieroglyphics and to place new developments in a historical context. Whenever possible, it will give readers a view from the inside. Tips and reports from those in the trenches of multilateralism will be a regular feature.

Early posts have focused on, inter alia, the ICC and (not surprisingly) the Security Council.  David points out today that the 2012 Council may have more Great Powers than at any time in recent history, a possibility that he describes as “an interesting test run for how an altered Security Council might perform.”  I hope he’ll write more on the subject, because I remain skeptical that P-5 will ever accept more permanent members, especially countries that — like Germany and India — rival them economically.

In any case, check The Multilateralist out!

From the Department of Unintended Irony

by Kevin Jon Heller

Omar Khadr’s trial began a couple of days ago at Guantanamo.  Here is what the prosecutor said in his opening statement:

This trial is about holding an Al Qaeda terrorist accountable for his actions and vindicating the laws of war.

Two small problems with this.  Throwing a grenade at U.S. soldiers is not an act of terrorism.  And four out of the five charges against Khadr — murder, attempted murder, conspiracy, and material support for terrorism — are not, in fact, violations of the laws of war.

Other than that, the prosecutor was spot on.

Bleg: How Would You Define ‘National Security Law’?

by Kenneth Anderson

Further to a mysterious correspondent, who asks what would be a clear, simple, and brief – as in one to three sentences – definition of the field of national security law, of the kind you might include in a law school, grad school, or undergrad course catalog and course description.  Suggestions welcomed.

How to Define Piracy Under U.S. Law and the “Law of Nations”

by Julian Ku

The WSJ has a nice discussion of the tricky legal arguments in the upcoming trial of alleged pirates in U.S. federal court.  Apparently, the prosecutors and defense attorneys are battling over the fact that U.S. statutes criminalizing piracy leave the definition to “the law of nations”.

Now the court in Norfolk must contend with the defense motion to dismiss the piracy charge, which would leaving only such lesser charges as attempted plunder.

The prosecution argues that U.S. courts should defer to international law, especially an 1982 U.N. Law of the Sea treaty the U.S. never ratified. Aping the 1958 Geneva Convention, it offers an expansive definition of piracy as any illegal acts of violence, detention or depredation committed for private ends on the high seas.

Defense lawyers balk at that suggestion. “We do not interpret U.S. law based on U.N. resolutions, but rather what Congress meant at the time,” says the public defender, Mr. Kamens.

I love that the defense lawyers are taking a page from Justice Scalia’s textualist approach to statutory interpretation. And it is a sort of compelling argument, although I’m not sure it is right.   Congress has criminalized “piracy as defined by the law of nations”.  It is certainly plausible that they intended to authorize federal courts to interpret the law of nations, as it evolved, when defining piracy.  But it is also plausible to me that Congress would have intended for the courts to apply only definitions of piracy at the time the statute was enacted, especially since this is a criminal statute.

In Sosa v. Alvarez-Machain, the Supreme Court considered the phrase “law of nations” in the quite different context of the Alien Tort Statute.  If we were to adopt that approach, the courts could only adopt definitions of piracy that are as well settled under the law of nations today as they were at the time the piracy statute was enacted.  I bet the lower and appellate courts that consider this question will follow the Sosa approach.  Which probably (although not necessarily) means the pirates here are out of luck.

John Bellinger Reflects on the 61st Anniversary of the Geneva Conventions

by Kenneth Anderson

John Bellinger reflects on the meaning of the four Geneva Conventions of 1949 in today’s world, in a post at Foreign Policy:

Today, 12 August, is the 61st anniversary of the signing of the Geneva Conventions of 1949, the international treaties designed to protect soldiers and civilians during armed conflicts.  The treaties became the focus of international attention in 2002 when the Bush administration controversially concluded that al Qaeda and the Taliban were not entitled to their protections. President Obama has reaffirmed America’s “commitment” to the Geneva Conventions but has not been specific about how the Conventions apply to al Qaeda and Taliban detainees. To re-assert U.S. leadership with respect to the laws of war, the Obama administration should announce that the United States accepts specific provisions of the Conventions and engage other countries to develop new rules where the Geneva Conventions do not apply.

Will Brain Science Develop Alternative Mechanisms for Interrogation?

by Kenneth Anderson

Via FuturePundit, who observes that this is really much more broadly about lie detection, note this press release from Northwestern University:

For the first time, the Northwestern researchers used the P300 testing in a mock terrorism scenario in which the subjects are planning, rather than perpetrating, a crime. The P300 brain waves were measured by electrodes attached to the scalp of the make-believe “persons of interest” in the lab.

The most intriguing part of the study in terms of real-word implications, Rosenfeld said, is that even when the researchers had no advance details about mock terrorism plans, the technology was still accurate in identifying critical concealed information.

“Without any prior knowledge of the planned crime in our mock terrorism scenarios, we were able to identify 10 out of 12 terrorists and, among them, 20 out of 30 crime- related details,” Rosenfeld said. “The test was 83 percent accurate in predicting concealed knowledge, suggesting that our complex protocol could identify future terrorist activity.”

Rosenfeld is a leading scholar in the study of P300 testing to reveal concealed information. Basically, electrodes are attached to the scalp to record P300 brain activity — or brief electrical patterns in the cortex — that occur, according to the research, when meaningful information is presented to a person with “guilty knowledge.”

Research on the P300 testing emerged in the 1980s as a handful of scientists looked for an alternative to polygraph tests for lie detection. Since it was invented in the 1920s, polygraphy has been under fire, especially by academics, with critics insisting that such testing measures emotion rather than knowledge.

University press releases about new research tend to promise more than the research subsequently delivers, of course.  Check back in a few years and we’ll see if this turned into an actual technology; if so, there will be a number of legal questions involved.

Kate Gibson on Erlinder’s Arrest in Rwanda

by Kevin Jon Heller

Two commenters on my previous post on Kagame’s increasing authoritarianism questioned whether Rwanda arrested Peter Erlinder because of his representation of defendants at the ICTR.  Fortuitously, Kate Gibson — my colleague on the Karadzic case and a defense attorney at the ICTR — has just published an ASIL Insight on the arrest that supports my claim.  Here is a taste (citations omitted):

On May 31, 2010, the ICTR sent a Note Verbale to the Rwandan authorities seeking clarification of whether Erlinder’s arrest was related to his mandate as an ICTR defense counsel.  Secondly, the ICTR spokesman announced that because Erlinder was not on an official mission in Rwanda as lead counsel for Major Ntabakuze, the ICTR did not have the “power or the vocation for giving lawyers any immunity in cases that are not related to the ICTR’s mandate.” Following this announcement, the Rwandan Prosecutor-General responded to the ICTR Note Verbale, predictably stating that Erlinder’s arrest was in no way connected to his assignment at the ICTR, thus clearing the way for his prosecution.

The ICTR’s hands-off approach became more difficult when, contrary to earlier public statements, the Rwandan authorities continued to link Erlinder’s arrest to his work as a defense counsel at the ICTR. On June 7, 2010, the High Court of Gasabo rendered a decision denying Erlinder’s request for provisional release. This decision focused on Erlinder’s academic writing, parts of which are critical of and impute criminal responsibility to members of the current regime in Rwanda for crimes committed in 1994. However, in summarizing the Prosecution’s submissions, the High Court referred on three occasions to statements made by the Rwandan prosecutors regarding the link between the alleged genocide denial and Erlinder’s pleadings as a defense counsel in the Military I case. For example, according to one statement, “during the Military I Trial at the ICTR, Carl Peter Erlinder denied and downplayed genocide. He managed to prove that genocide had not been planned nor executed by the military officials he was representing.” The Court itself concluded that Erlinder should “answer for his acts at the ICTR.”

To be clear, although it is unconscionable to persecute a defense attorney for representing a client, I think it would be equally offensive to arrest anyone for offering an account of the events of 1994 that differs from the Rwandan government’s official — and highly selective — narrative.  I’m sure there are true genocide deniers out there (there always are), but most of the counter-narratives that I’ve seen (including Erlinder’s academic writing) acknowledge the genocide but insist, rightly, that the RPF were themselves responsible for war crimes and crimes against humanity during the conflict.  Denying that Kagame is a saint is not the same as denying that genocide occurred.

P.S. With regard to Turyio’s point that laws criminalizing Holocaust denial are “generally accepted” — that may be true, but I don’t accept them.  I am completely opposed to such laws, which I believe turn pathetic figures like David Irving into martyrs and do far more harm than good.

P.P.S. Kathleen Doty has an excellent post on Kagame at IntLawGrrls.

The Case of the Wrong Seal: Was Korea Legally Annexed by Japan?

by Julian Ku


State Seal of South Korea

Just in time for the 100th anniversary of the Korea-Japan Annexation treaty, a Korean scholar has new evidence that the treaty was never properly ratified by the Korean king. Hence, according to the scholar, the 1910 annexation treaty was never legal and Japan’s annexation of Korea was illegal (or at least not authorized by a treaty). (The current state seal of South Korea is shown here).

Lee Tae-jin, professor emeritus at Seoul National University, released historical documents that show the century-old annexation pact was void because Korea’s proclamation of the treaty lacked the nation’s state seal.

According to Lee, the original copy of the Korean proclamation contained only King Sunjong’s private seal, which was used solely for administrative approval. The Korean edict lacked his signature and the required state seal

In contrast, the Japanese edict of the treaty had Japan’s state seal and the signature of Emperor Meiji, who signed it with his personal name Mutsuhito.

Even assuming the Korean scholar is right about the wrong seal, it is not obvious to me that the entire treaty is invalid. It sounds like from the article that the wrong seal is on the Korean proclamation of the treaty, but not on the treaty itself.  This makes it seem like the ratification of the treaty may have been separately done (and according to Wikipedia, it was done by the Korean Prime Minister under the authority of Korea’s king). Or maybe the proclamations were the ratification instruments?

And even if it the wrong seal was used on the ratification, I am not sure the treaty is invalid.  Of course I don’t know what the law of treaties was in 1910, but let’s assume the law is similar to what the Vienna Convention on the Law of Treaties is today.  Under the VCLT Art. 11, “The consent of a State to be bound by a treaty may be expressed by signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession, or by any other means if so agreed.” A seal may or may not be required for consent, but it seems that it would depend on the treaty itself.  I know that the U.S. has always used seals on treaty ratifications, but I wonder if its absence would necessarily negate the treaty ratification if, say, the President signed the treaty himself.  But maybe someone who has actually seen treaties ratified (Duncan?) could enlighten me here.

In any event, it is far less obvious that the annexation of Korea by Japan was “illegal” even without the treaty.  Conquest was, I believe, perfectly legal in 1910.  Still, it is fascinating that even today, this rather obscure legal point remains a point of huge contention between Japan and Korea.

Ruth Wedgwood on Rwanda’s Faux Democracy

by Kevin Jon Heller

Hell must have had central air conditioning installed, because I find myself in complete agreement with Ruth Wedgwood’s recent post at EJIL: Talk! on Paul Kagame’s rapid descent into authoritarianism.  Here is a snippet:

The West’s failure to address Tutsi violations of the laws of war has allowed Kagame to conclude, justifiably, that he can do nearly anything with impunity. He certainly hasn’t been intimidated by the observation of the U.N. Human Rights Committee in May 2009 that it was “concerned at the large number of persons, including women and children, reported to have been killed from 1994 onwards in the course of operations by the Rwanda Patriotic Army, and at the limited number of cases reported to have resulted in prosecution and punishment by the Rwandan courts.”

Nor has there been any penalty for Kagame’s destructive expedition into the Eastern Congo. The cross-border intervention gave the regime access to minerals ripe for extraction and valued in the hundreds of millions of dollars. Millions of civilians have been killed in the Eastern Congo conflict, and while Kagame was not the only culprit, his troops hardly quelled the violence.

At the same time, Kagame’s domestic critics have met with unfortunate fates. An outspoken political rival was recently shot and wounded in South Africa. A prominent newspaper editor was gunned down at the end of June, and the deputy president of the Democratic Green party was decapitated in July. Public meetings of rival parties have been banned. Kagame felt audacious enough to jail and threaten a 10-20 year sentence against an American lawyer and law professor—who hails from former Supreme Court Chief Justice Warren Burger’s alma mater in Minnesota—when he went to Rwanda to consult with one of Kagame’s political rivals.

Wedgwood’s post was written before the recent elections.  As she predicted, Kagame was elected by a majority — 93% — that “will impress even the modern grand viziers of Central Asia.”  (Side note: I love modern journalism, in which even the most obvious truths have to be qualified by attributing them to one side or another.  The Reuters article linked to above contains the following delicious quote: “Critics said the campaign playing field was uneven, with three would-be opposition candidates prevented from registering to contest the ballot.”  Critics said?  Does anyone other than Kagame believe that a campaign playing field can be even when opposition candidates are not allowed to participate in the process?)

Wedgwood discusses numerous other aspects of Kagame’s despotic reign, such as his invasions of the Congo, the murder of political opponents, the imprisonment of Peter Erlinder on charges of genocide denial (defined as representing a defendant accused by the ICTR of committing genocide), the sham that is gacaca, and the appointment of an indicted war criminal to Rwanda’s peacekeeping force in Darfur.

Wedgwood concludes by arguing that “the Obama team ought to take a close and critical look at its erstwhile friend in Africa,” because “[h]e is not what he seems.”  No, he isn’t.

I’m Betting on Julia Gillard — Literally!

by Kevin Jon Heller

Actually, I’m not, although I’m confident Labor will pull out the election.  But I’m endlessly fascinated by the fact that people place bets on the outcome of the election — and that the latest odds are treated as serious news by The Age, the best newspaper in Australia:

Labor has been the subject of a huge betting plunge on it winning the August 21 election.

Centrebet received a bet of $20,000 at 10am, immediately shortening Labor’s odds of winning. But this was trumped only 40 minutes later by a $40,000 wager and then another bet of $15,000.

More cash has since flowed Labor’s way this afternoon – including bets of $3000 and $5000 – seeing the odds of Julia Gillard becoming prime minister shorten from $1.62 to $1.51.

The betting agency’s analyst, Neil Evans, said nearly $200,000 had been wagered on the election today.

Almost all of the money had been for Labor, with the largest bet for the Coalition being only $2000.

Mr Evans said the bets had all been taken in the wake of Ms Gillard’s appearance on ABC’s Q&A program, where she appeared confident and forthright under tricky questioning.

The ABC this morning said last night’s Q&A drew more than 841,000 viewers, the show’s best-rating effort since it debuted in 2008.


The betting surge had also followed prominent media reporting of an interview from former Labor leader Mark Latham, who accused Ms Gillard of patronising him and stroking his front.

The Coalition has now blown out to $2.54, Mr Evans said.

The opposition had originally been backed in at $2.27 over the weekend, its shortest price, after Ms Gillard was confronted by Mr Latham and endured an awkward get together with Kevin Rudd.

Frankly, I have no idea what any of this means.  But the whole betting thing is still kind of cool.

A Must-Read Book on International Criminal Tribunals

by Kevin Jon Heller

<br />

My friend Nancy Combs new book on international tribunals, Fact-Finding Without Facts: The Uncertain Evidentiary Foundations of International Criminal Convictions, has just been published by Cambridge University Press.  Here is the description:

Fact-finding Without Facts explores international criminal fact-finding – empirically, conceptually, and normatively. After reviewing thousands of pages of transcripts from various international criminal tribunals, the author reveals that international criminal trials are beset by numerous and severe fact-finding impediments that substantially impair the tribunals’ ability to determine who did what to whom. These fact-finding impediments have heretofore received virtually no publicity, let alone scholarly treatment, and they are deeply troubling not only because they raise grave concerns about the accuracy of the judgments currently being issued but because they can be expected to similarly impair the next generation of international trials that will be held at the International Criminal Court. After setting forth her empirical findings, the author considers their conceptual and normative implications. The author concludes that international criminal tribunals purport a fact-finding competence that they do not possess, and as a consequence, base their judgments on a less precise, more amorphous method of fact-finding than they publicly acknowledge. The book ends with an exploration of various normative questions, including the most foundational: whether the international tribunals’ fact-finding impediments fatally undermine the international criminal justice project.

I read the book in draft form and again after it was completed.  All I can say is this: it is one of the most important books ever written on international criminal law.  Full stop.  (That is essentially the blurb for the book that I submitted to CUP, at its request.  For some reason, they decided not to use it, which makes me sad.)

I could keep gushing, but what’s the point?  Just go read the book.

Has Colombia Self-Referred to the ICC?

by Kevin Jon Heller

El Universal — along with other newspapers — is reporting that one of President Uribe’s final acts in office was to file a complaint with the ICC alleging that Hugo Chavez, the President of Venezuela, is responsible for permitting FARC guerrillas to use Venezuela as a staging area for crimes committed in Colombia:

Jaime Granados, the lawyer of Colombian outgoing president Álvaro Uribe, on August 6 filed a complaint against Venezuelan President Hugo Chávez at the International Criminal Court (ICC) and a lawsuit against the Bolivarian Republic of Venezuela at the Inter-American Commission on Human Rights (IACHR).


“Indeed, today (August 6) I forwarded to the headquarters of the International Criminal Court in The Hague, to the office of Luis Moreno Ocampo, the court’s prosecutor, the relevant complaint, and we expect he to take action,” said Granados.


This is a “complaint against the Head of State, Hugo Chávez, as a natural person, at the ICC, based on the Treaty of Rome, and the other one is a lawsuit filed with the Inter-American Commission on Human Rights against the Bolivarian Republic of Venezuela,” Granados explained.

Granados said that such human rights violations also have to do with the alleged presence of guerrillas of the Revolutionary Armed Forces of Colombia (FARC) and the National Liberation Army (ELN) in Venezuelan territory.

Both the lawsuit and the complaint are reportedly related to the fact that guerrillas are preparing terrorist acts while on Venezuelan soil for implementation in Colombia against people.

Uribe’s move came only hours before handing over power to president-elect Juan Manuel Santos. The decision threatens to stir further tensions with Chávez’s government, which broke diplomatic ties on 22 July after Colombia reported at the Organization of American States (OAS) the presence of guerrillas in Venezuela.

This is an interesting development, one that raises both substantive and procedural questions.  Substantively, on what basis does Colombia think Chavez is criminally responsible for FARC’s actions?  Soliciting or inducing?  Aiding and abetting?  Contributing to a group crime?  Aiding and abetting seems the most likely, given that Article 25(3)(c) singles out “providing the means” for the commission of a crime.  But that would require proof that Chavez is allowing FARC to set up camps in Venezuela “for the purpose of facilitating” FARC’s crimes — a very high standard.

The procedural questions, however, are even more interesting.  Most important, is this is a self-referral by the Colombian government?  It seems like it has to be — Article 25(3) criminalizes participating in a crime within the jurisdiction of the ICC, and here the relevant crimes have been and are being committed in Colombia, not in Venezuela.  Differently put, Colombia is not accusing Chavez of committing a crime in Venezuela; it is accusing Chavez of committing acts in Venezuela (permitting the camps to exist or perhaps even providing the camps) that make him responsible for crimes committed in Colombia.  So the Colombian government can refer Chavez to the Court only by self-referring the situation in Colombia.

That, of course, raises another question: what counts as a self-referral?  Presumably, the Colombian government only wants to refer Chavez to the Court; it doesn’t want to refer the situation in Colombia as a whole, because that would expose government officials and military leaders to prosecution as well as Chavez.  But, of course, a state can only refer situations to the Court, as the text of Article 14 of the Rome Statute makes inordinately clear.  So should the OTP treat the complaint as, in effect, a self-referral of the entire Colombian situation?  If it does, can Colombia “un-self-refer” the situation?  It seems like it should be able to do so, but we don’t let other self-referring states un-self-refer, no matter how much they might like to.  The only difference between, say, Uganda and Colombia would be that it took Uganda longer to regret its self-referral.  Moreover, permitting successive heads of state to use the ICC as a football is a very bad idea under any circumstances.

Unfortunately, the Rome Statute is silent on these issues.  Article 14 simply provides that “[a] State Party may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed requesting the Prosecutor to investigate the situation for the purpose of determining whether one or more specific persons should be charged with the commission of such crimes.”  And Rule 45 of the Rules of Procedure and Evidence is even less helpful, stating that “[a] referral of a situation to the Prosecutor shall be in writing.”  (Thanks, Rule 45.  A writing written by whom?  Saying what?  Does it have to be notarized, or will a fax from Kinkos do?)

Readers?  Your thoughts?

Donziger: “Just a Bunch of Smoke and Mirrors and Bullshit”

by Roger Alford

As discussed here, one of the key arguments that the Ecuador plaintiffs are making in response to Chevron’s Motion is that the damaging quotes are being taken out of context. Without question one of the most damning excerpts is when lead plaintiffs’ lawyer Steve Donziger is quoted as saying that “Because at the end of the day, this is all for the Court just a bunch of smoke and mirrors and bullshit. It really is.”

Plaintiffs’ spokesman Karen Hinton told me this morning that Donziger’s comment about “smoke and mirrors and bullshit” was a reference to Chevron’s evidence, not their own. She is quoted in an American Lawyer article today saying the same thing, that “’He was talking about Chevron using smoke and mirrors.’ Chevron is ‘twisting it and manipulating it.'”

I have now received the transcripts of the DVD from Karen Hinton and I have posted them here and here. Read in context, I find it almost impossible to interpret Donziger’s quote about “smoke and mirrors” as a reference to Chevron’s evidence.

Here is Steve Donziger’s “smoke and mirrors and bullshit” quote included in the context of a conversation between Donziger and plaintiffs’ technical experts Dave Kamp, Ann Maest, and Charlie Champ (pages 8-11 of Transcript 2):

KAMP: Yeah. But you know. And these are all possibilities, and I think that, but what we know we don’t have is the extent of the contamination, the, the ground water auditors that Anne was talking about, maybe when you were asleep.

MAEST: Uh-huh.

KAMP: and, you know, being able to characterize as well as we possibly can before we enter into, you know, a remediation strategy per se, what we know about non-water contamination the extent of the contamination. We don’t have that.

MAEST: And right now all the reports are saying it’s just at the pits and the stations and nothing has spread anywhere at all.

DONZIGER: That’s not true.

KAMP: That’s not exactly true.

DONZIGER: That’s not true. The reports are saying the ground water is contaminated because we’ve taken samples from ground water.

MAEST: That’s just right under the pits.

DONZIGER: Yeah, but, that is evidence.

MAEST: Uh-huh.

KAMP: Well you need more.

CHAMP: Well one thing I visually see.

DONZIGER: I agree.

KAMP: Right.

DONZIGER: Hold on a second, you know, this is Ecuador, okay,

MAEST: Okay.

DONZIGER: You can say whatever you want and at the end of the day, there’s a thousand people around the courthouse, you’re going to get what you want. Sorry, but it’s true.

KAMP: Uh-huh.

DONZIGER: Okay. Therefore, if we take our existing evidence on groundwater contamination which admittedly is right below the source.

MAEST: Uh-huh.

DONZIGER: And wanted to extrapolate based on nothing other than our, um, theory that it is, they all, we average out to going 300 meters in a radius, depending on the—the, uh…

MAEST: Uh-huh.

DONZIGER: The what do you call it when the land goes down? The incline. You know what I mean,

MAEST: Uh-huh. The gradient.

DONZIGER: The gradient. We can do it.

KAMP: The gradient.

DONZIGER: We can do it. And we can get money for it.

MAEST: Uh-huh.

DONZIGER: And if we had no more money to do more work, we would do that. You know what I’m saying?

MAEST: Yeah.

DONZIGER: And it wouldn’t really matter that much.

MAEST: Uh-huh.

DONZIGER: Because at the end of the day, this is all for the Court just a bunch of smoke and mirrors and bullshit. It really is. We have enough, to get money, to win. How we define what the win is—is—is—we can do it, anything we want. Now granted, I’d rather have it stronger.

MAEST: Uh-huh.

DONZIGER: I want to have it stronger.

MAEST: Good.


MAEST: Because.

DONZIGER: We need to keep that in mind as we design this.

KAMP: We do.

CHAMP: Steven, the main thing to reminder is,


CHAMP: This is where I agree with Anne a thousand percent, there is not enough information on that ground water.


CHAMP: There’s not. I mean.



CHAMP: To even approach this—

DONZIGER: You guys conspiring against me?


Chevron’s Motion Transcript 2

So there you have it. Anyone else besides Karen Hinton want to make the argument that this is a reference to Chevron’s evidence?

Chevron’s Explosive Filing on Collusion Between Plaintiffs and the Ecuadorian Court-Appointed Expert

by Roger Alford

The ongoing saga regarding Chevron’s legal travails in Ecuador took an interesting twist this week. As I reported earlier, Chevron has secured key outtakes of the movie Crude that appeared to show alarming collusion between the plaintiff lawyers and the Court-appointed expert. According to pleadings filed yesterday pursuant to 28 U.S.C. 1782, the outtakes include some amazing communications caught on tape. The purpose of the filing was to secure the court’s assistance with additional discovery of Crude outtakes to facilitate the arbitration and secure preservation of all relevant evidence “related to the fraudulent ‘Global Expert’ scheme as documented in the Crude documentary and the outtakes produced to date.” (p. 21).

The film outtakes include some choice excerpts of a March 3, 2007 meeting that included plaintiffs’ counsel (Steve Donziger and Pablo Fajardo), plaintiffs’ experts (Charlie Champ, Ann Maest, Dick Kamp) and the soon-to-be court-appointed expert, Richard Cabrera. The apparent purpose of the meeting between the plaintiffs and Cabrera was to develop a plan for the drafting of the independent expert’s report that Cabrera would write as Special Master for submission to the Ecuadorian court. According to Chevron’s filing, the tapes include some pretty damning evidence.

For example, Plaintiff lawyer Fajardo tells the assembled group—which includes the soon-to-be court-appointed expert Richard Cabrera–that the court-appointed expert is going to “sign the report and review it. But all of us [the plaintiff lawyers and experts] … have to contribute to the report.” Toward the end of the meeting Donziger brags: “We could jack this thing up to $30 billion … in one day.” (p. 2). Fajardo says that the team must “[m]ake certain that the expert constantly coordinates with the plaintiffs’ technical and legal team” and the plaintiffs’ team must “support the [court-appointed] expert in writing the report.” (p. 8). “Our entire technical team … of experts, scientists attorneys, political scientists, … will contribute to that report—in other words—you see … the work isn’t going to be the expert’s.” (p. 9).

In clarifying what role the plaintiffs and defense counsel will have in drafting the court-appointed expert report, Fajardo confirms that it will be written “together” with the plaintiffs. The idea of Chevron having a role in drafting the court-appointed report was met with collective laughter. (p. 9). Donziger proposes the plaintiffs establish a “work committee” to present a “draft plan” for the report and then says to the soon-to-be court-appointed expert, Richard Cabrera, “and Richard, of course you really have to be comfortable with all that.” (p. 11).

The next day, in a lunch meeting with just the plaintiffs’ lawyers and plaintiffs’ experts, one expert, Charlie Kamp, said “Having the perito [Cabrera] there yesterday in retrospect … that was bizarre.” Donziger replies, “Don’t talk about it” and tells the camera crew “And that’s off the record.” (p. 12). In responding to concerns from their own experts that there was not evidence of groundwater contamination, Donziger replies, “This is all for the Court just a bunch of smoke and mirrors and bullshit.” (p. 12). That’s right, Donziger is caught on tape saying that the evidence he is gathering for inclusion in the court-appointed expert report about groundwater contamination is just smoke and mirrors and bullshit.

I would rarely advise our readers to read a court filing they don’t have to, especially during the summer recess. But this one is explosive.

Colombia, the ICC — and a Twist!

by Kevin Jon Heller

I’ve argued for the past couple of years that the ICC should open a formal investigation into the situation in Colombia, because it is a non-African situation that satisfies most, if not all, of my criteria for situational gravity: (1) crimes committed with government involvement; (2) systematic criminality; (3) socially alarming crimes such as enforced disappearance and torture.  Here is a snippet from a June 2009 report by the American NGOs Coalition for the International Criminal Court (AMICC):

In response to FARC attacks, landholders and drug dealers organized in 1997 their own force to free Colombia from left-wing guerrillas: the Autodefensas Unidas de Colombia (United Self-Defense Forces of Colombia, AUC). It is comprised of several right-wing paramilitary groups, wealthy landowners, drug cartels and segments of the Colombian army. Just like the force they try to combat, they allegedly use terror tactics such as massacres, selective killings and threats, mainly against human rights defenders and trade union and other social movements’ leaders, journalists and members of Government. Over the past 10 years the paramilitaries, with support of the Colombian army and government, have killed some 15,000 trade unionists, peasants and indigenous leaders, human rights workers, land reform activists, leftwing politicians and their sympathizers.

Apparently Judge Garzon, now consulting with the ICC, agrees with me.  He recently suggested that, in light of Colombia’s failure to bring the perpetrators of such crimes to justice, the ICC is likely to step in:

Colombia’s inability to bring cases to court was the object of the Spaniard’s criticism. “There is a lack of the political and judicial coordination and resolve necessary to begin trials,” he said. Victims had suffered too much without seeing results, he added.

The judge said that if Colombian authorities are unable to start proceedings “the ICC will have to say something – there will be claims and the court will have to say something.”

Garzon was referring to the Colombian Justice and Peace law, which allows demobilized paramilitaries to receive a reduced sentence if they make a full confession of their crimes. More immediate actions are necessary, he claimed, even if it means resorting to “partial indictments” – a mechanism which allows the suspects to be tried on crimes that come to light as their confession proceeds, rather than waiting for a full admission to be made.

The law came into force in 2005. However, despite the participation of 4,600 demobilized paramilitaries and guerrillas, only two people have been sentenced.

I tend to agree with Garzon’s assessment of the Justice and Peace Law, as do many scholars who know far more about Colombia than I.  (See, for example, this excellent article by Jennifer Easterday at Berkeley.)  To be fair, though, others believe that the ICC does not need to intervene in Colombia, because its threats to do so have encouraged the Colombian judiciary to increase its efforts to combat impunity, an effect known as “positive complementarity.”  Here is the AMICC’s assessment…

ACLU and CCR Sue OFAC over Expenditures Related to Al-Awlaki Lawsuits

by Kenneth Anderson

Adam Serwer has a post up flagging a new suit by the ACLU and the Center for Constitutional Rights (CCR) against the Treasury Department’s Office of Foreign Assets Control (OFAC) over funds expended over the question of whether the Obama administration can designate and then target Al-Awlaki as a terrorist hiding out presumably in Yemen.  (Adam tried to contact me to discuss it, but despite this post, I am really, truly out of touch.  In and out of the mountains, about to drive across the desert, and an iffy internet connection.  However, without having read anything at all besides Adam’s post, this is likely an important lawsuit.)  I, as I have remarked various times, see no problem with the US government targeting Al-Awlaki, US citizen or not.  I don’t have a problem with the refusal of OFAC to issue the required license for the expenditure of funds on someone the US government has designated as a terrorist under existing US law.  However, those are separate legal questions, and there are others besides, not least the recent Supreme Court decision approving, if my sun and altitude-addled recollection is correct – and it might not be – something pretty much like what OFAC just did.  (We’ve written on it here, but I don’t dare leave this page.)  But I leave it to everyone else to sort out; I just wanted to flag it to everyone’s attention, and kudos to Adam for being on top of it.

(Also, while I am thinking of it, Mary Ellen O’Connell and I have an “issues debate” – about 500 words each, pro and con format – on targeted killing and drones up at the Congressional Quarterly blog.  I’ll try to find a link later; not sure if it is public or not.)

(ps.  Thanks to Ben for his comment on my earlier Eastern Sierra post – just wanted to say that among other day hikes, we did indeed make it to Heart Lake.)

Update:  Politico is now reporting that OFAC will permit the license for the underlying lawsuit, on the fundamental targeting issues, to proceed, presumably mooting this suit. (Thanks to Mark Field.)

Justice Ginsburg on Using Foreign and International Law in Constitutional Adjudication

by Duncan Hollis

Justice Ginsburg has fired the latest salvo in the ongoing debate about the Court’s use of foreign and international law sources in constitutional adjudication.   On Friday, she gave a speech to the International Academy of Comparative Law at American University, entitled “A decent respect to the Opinions of [Human]kind”: The Value of a Comparative Perspective in Constitutional Adjudication.  Not surprisingly given her earlier opinions, Justice Ginsburg comes out strongly in favor of the Court’s use of foreign and international law materials to interpret U.S. law, including the Constitution.  She begins with an historical defense:

From the birth of the United States as a nation, foreign and international law influenced legal reasoning and judicial decisionmaking.  Founding fathers, most notably, Alexander Hamilton and John Adams, were familiar with leading international law treatises, the law merchant, and English constitutional law.  And they used that learning as advocates in legal contests . . . . The law of nations, Chief Justice Marshall famously said in 1815, is part of the law of our land.  Decisions of the courts of other countries, Marshall explained, show how the law of nations is understood elsewhere, and will be considered in determining the rule which is to prevail here.  Those decisions, he clarified, while not binding authority for U. S. courts, merit respectful attention for their potential persuasive value.

After quoting from Paquete Habana, Ginsburg turns her attention to the hostility to both foreign and international law on display in the U.S. Senate during Elena Kagan’s recent confirmation hearings (e.g., including the Senator who indicated he was “troubled” that Kagan “believes we can turn to foreign law to get good ideas”).  She contrasts these exchanges with The Federalist’s use of the law of nations and both positive and negative examples from abroad to defend the Constitution. 

In terms of her own views, Justice Ginsberg did not mince words: 

On judicial review for constitutionality, my own view is simply this:  If U.S. experience and decisions may be instructive to systems that have more recently instituted or invigorated judicial review for constitutionality, so too can we learn from others now engaged in measuring ordinary laws and executive actions against fundamental instruments of government and charters securing basic rights. . . . The U.S. judicial system will be the poorer, I have urged, if we do not both share our experience with, and learn from, legal systems with values and a commitment to democracy similar to our own.

And the rest of the speech continues in a similar vein, with Justice Ginsberg raising and then contesting the views of foreign/international law opponents (including Justice Scalia, Judge Richard Posner, and Professors Eric Posner and Adrian Vermeule) while citing a series of “examples” of recent cases where the Court reached a decision with the aid of foreign and international law sources (e.g., Atkins v. Virginia, Lawrence v. Texas, Boumediene v. Bush, Hamdan v. Rumsfeld, and, of course, Roper v. Simmons). 

For me though, the most interesting part of the speech was Justice Ginsburg’s list of other sources besides foreign and international law that are appropriate for constitutional adjudication: 

Judges in the United States, after all, are free to consult all manner of commentary — Restatements, Treatises, what law professors or even law students write copiously in law reviews, and, in the internet age, any number of legal blogs.  If we can consult those sources, why not the analysis of a question similar to the one we confront contained, for example, in an opinion of the Supreme Court of Canada, the Constitutional Court of South Africa, the German Constitutional Court, or the European Court of Human Rights?

Did Justice Ginsburg just authorize judges to use legal blogs in reaching their decisions?  I think she did.  That said, I think the implications for Opinio Juris are pretty clear — given our dedication to discourse from ALL sides on issues of international and foreign law, isn’t it just a matter of time before we get cited by the Court?  I’m counting the days.

Search and Rescue and the Spread of UAVs

by Kenneth Anderson

Sorry for the light posting of late – the Anderson family is currently in the Sierra Nevada, the eastern side out of Bishop, California, on God’s own highway, the Empty Quarter of Highway 395, which runs north-south from southern California all the way up the eastern Sierra and beyond.  It is both the most beautiful and most varied countryside you can imagine.  If the gods loved you, you would be here, as are we.  Unfortunately not spending enough time, however, so we are just doing various day hikes.

There is not a lot of international law in the eastern Sierra Nevada.  There is an important body of sovereign nation law, given that there are several Indian tribes and tribal lands up and down the Owens Valley, including the Paiute-Shoshone tribal lands in the center of Bishop.  But one feels somewhat removed from the Law of Nations.  However, I thought I would share one conversation with one of the rangers here in the national park.  She remarked that the ranger services – national parks, national forest, etc. – had been watching with great interest the growth of unmanned aerial vehicles (UAVs) in civilian use.  So far this includes things like crop dusting and surveillance.  Because the air bases that command some of the UAVs are located in Nevada, relatively nearby (in the Empty Quarter, that might mean 300 miles of desert driving, of course), there is a lot of awareness of UAVs and their potential – University of Nevada, Las Vegas has just begun a program to graduate UAV controllers, for example.

When people talk about surveillance UAVs, they are typically thinking about border patrol, but here, the park services are thinking about fire patrols – an immensely expensive task from aircraft now, because of the vast areas to be surveyed in real time – but worth it because the faster the fire is spotted, the better the chance of containing it before it spreads.  LIkewise, search and rescue for lost and injured back country hikers.  That one is somewhat ahead of existing technology, for what the park services would ideally like, because flying in the steep valleys and canyons is difficult and hazardous now, but UAV technology is not sufficiently up to speed to take over those tasks.  But it will happen soon, as smaller UAVs that are more like large birds can be deployed in difficult, deep, or narrow spaces.  Likewise, as the sensor technology gets better, cheaper, and more available, it will be easier to find a single lost hiker using not just things like infrared signatures, but sensor arrays that are … well, if they exist, they are still only available to the military.

Point being – this will not be a surprise to OJ readers who understand that this site is UAV-targeted killing central information station – that UAVs are going to spread rapidly and widely across a huge array of tasks and functions currently carried out by manned aircraft.  It will happen because UAVs will be so much cheaper, efficient, and in many functional aspects superior to using people in airplanes.  The impetus will rapidly turn from being military, as it still is now, to civilian.  Everybody, everywhere in the world will shift that direction.

I raise this because there is a meme that still circulates with some velocity in the international law community, journalists, and others, that the US is risking setting off some kind of UAV arms race by its increasing roboticization of conflict – not just UAVs, but ground vehicles, and so on.  I don’t think that’s right; the meme fundamentally misunderstands the technology and its application.  Rather, UAVs are going to spread across a very wide range of aviation in any case, in which military uses will just be one of them.  The same technology, cost, safety, efficiency, and so on, drivers that push for fire surveillance in the Sierra Nevada will be exactly the same ones that drive the military to use the technology.  One can call it an arms race, I suppose, but only if one imagines that it is all about military use, otherwise it is a misleading way of thinking about the technology.

A better way to think about this is to go back to what make robots robots.  In general, there are three conceptual pieces:  A locomotion function or means of gross movement or action in the world; computing and central processing power to be able to analyze; and sensors to bring in streams of data which, being analyzed, result in some form of gross mechanical action.  (In the case of US military UAVs, we can add an additional piece that brings them into an intersection loosely with ‘cyber’ – the communications net that allows them to be piloted over Afghanistan from the US.)  Focusing on the UAV’s gross locomotion part, the flying part, and saying that it will lead to an arms race in which everyone will want one and arm it with a missile misses the point.  There is no arms race about that – the technology for flying remotely has been around for decades; anyone who wants to build one can do so at a hobby shop.  Putting a missile on it is child’s play, literally – presumably no one would be so politically incorrect as to propose building a Predator with a missile as the next high school robotics competition for high school teams, but apart from political sensitivities aside, one reason is that it’s just too darn easy.  Flying is easy; making a machine that walks up stairs is hard.

Everyone will have UAVs because everyone will want them for so many, many things, mostly unrelated to military or police missions.  Any government that wants to arm one with a missile will have no difficulty doing so.  The real technology issues are not with flying, or with weaponization – or even with computing power.  That’s all off the hobby kit shelf.  No, the real technology issues arise with sensors.  One robotics scientist in Silicon Valley told me last year that it was largely unrecognized, but the real advances in technology of the past decade had not been in computers as such, but in sensors and controllers, ranging from new ways and kinds of bringing data streams online to direct neurological, direct brain control of robotic limbs for amputees, and so on.

But now, note the issue.  Some of this technology is classified for military R&D; other parts are not.  The importance of robots outside of the UAV context are immense in large part because the Baby Boom generation does not have sufficient children to see us off to our reward; we are going to slide into dementia and be cared for and comforted by cuddly robotic dolls that we will think are human, to judge by where things are going in Japan.  In the US, we are not so aware of this, yet, although it is striking that the Times and the WSJ have both moved on in their robotics coverage from targeted killing via UAVs to much more friendly news stories about Alzheimer’s patients in Japan being soothed by robot plush dolphins.  Dolphins that will be smart enough to monitor medical conditions and call 911 if needed, to take obvious examples, or monitor whether a patient has taken the meds, or any number of things.  What lies behind this is sensor technologies.

In an armed conflict context, however, it is questionable how many of the fighting forces in the world, state or non-state, will feel any great obligation to minimize collateral damage or attempt to more and more affirmatively id a target before striking.  If you don’t feel that obligation – I would estimate that the countries involved will be the US and Israel, and the rest of NATO only insofar as it ever intends to do any more fighting, but in any case, they will simply acquire US technology.  China will likely do so, because it would at least want every capability, and because it can most likely steal the technology and reverse engineer any missing parts.  But either sensor technology will spread across civilian uses, such as elder care robots, so as to make the concept of an ‘arms race’ moot, or else the number of countries that will be “racing” to have such technologies will be almost entirely limited to countries that (a) fight and (b) care about the rules.  That makes the list frankly pretty short.  It is possible that India might join that list, along with Taiwan, South Korea, and a handful of others in Asia.  But there will not be an “arms race” around sensors, because they are useful primarily for reasons related to more discriminating targeting, and the militaries in the world interested in that is not a long list.

Will there be an evolution of arms around UAVs, then?  Yes, but not likely along those parameters.  The likely arms race is along a quite different one.  Predators are slow and noisy for targeted killing; it will not take long before some party – Iran – begins doing what the US did via the CIA in Afghanistan against the Soviets, and supplies rudimentary surface to air missiles to attack the drones.  The arms race will get underway in the classic evolution of protecting air dominance.  The Predator, for example, might launch not a missile, but instead a still smaller drone with a single-person weapon, specifically designed for up close use.  That will be a function not of flying technology or weapons technology, however, but, once again, sensors.  But an arms race over air superiority is not one that has the implications for the supposed dangerous spread of this new military technology – introducing dangerous new dynamics between India and Pakistan, for example – that numbers of commentators seem (still) to imagine.

I am returning to the solitude and off-lineness of the mountains.